Exhibit 10.259
Allstate Life Insurance Company
Loan No. 122493, 122494, 122495,
122496 and 122497
POST CLOSING DELIVERY COVENANT
THIS POST CLOSING DELIVERY COVENANT (the "Covenant") is executed and
delivered as of July 21, 2004, by INLAND GATEWAY SPE, L.L.C., a Delaware limited
liability company ("Gateway Borrower"), GATEWAY VILLAGE LLC, a Maryland limited
liability company ("Gateway Guarantor"), INLAND TOWSON SPE, L.L.C., a Delaware
limited liability company ("Towson Borrower"), TOWSON CIRCLE LLC, a Maryland
limited liability company ("Towson Guarantor"), INLAND BEL AIR SPE, L.L.C., a
Delaware limited liability company ("Tollgate Borrower", and together with
Gateway Borrower and Towson Borrower, collectively, the "Borrower") and BEL AIR
SQUARE LLC, a Maryland limited liability company ("Tollgate Guarantor", and
together with Gateway Guarantor and Towson Guarantor, collectively, the
"Guarantor"), for the benefit of ALLSTATE LIFE INSURANCE COMPANY, an Illinois
insurance corporation ("Lender").
RECITALS
A. Pursuant to Lender's commitment letter dated June 23, 2004 (as
amended, the "Gateway Commitment"), Gateway Borrower has executed and delivered
to Lender two Mortgage Notes of even date herewith, both payable to Lender, one
in the principal amount of $27,233,000 and the other in the principal amount of
$4,225,000 (collectively, the "Gateway Note"), to evidence a loan in the
aggregate principal sum of $31,458,000 (the "Gateway Loan"). The Gateway Loan is
secured by an Indemnity Deed of Trust, Assignment of Leases, Rents and
Contracts, Security Agreement and Fixture Filing (the "Gateway Deed of Trust")
on the Property (as defined in the Gateway Deed of Trust) and the Related
Agreements (as defined in the Gateway Deed of Trust) (all of the foregoing being
collectively referred to herein as the "Gateway Loan Documents"). Pursuant to
Lender's commitment letter dated June 23, 2004 (as amended, the "Tollgate
Commitment"), Tollgate Borrower has executed and delivered to Lender a Mortgage
Note (the "Tollgate Note") of even date herewith, payable to Lender, in the
principal amount of $39,765,000 (the "Tollgate Loan"). The Tollgate Loan is
secured by an Indemnity Deed of Trust, Assignment of Leases, Rents and
Contracts, Security Agreement and Fixture Filing (the "Tollgate Deed of Trust")
on the Property (as defined in the Tollgate Deed of Trust) and the Related
Agreements (as defined in the Tollgate Deed of Trust) (all of the foregoing
being collectively referred to herein as the "Tollgate Loan Documents").
Pursuant to Lender's commitment letter dated July 7, 2004 (as amended, the
"Towson Commitment", and together with the Gateway Commitment and the Tollgate
Commitment, the "Commitment"), Towson Borrower has executed and delivered to
Lender two Mortgage Notes of even date herewith, both payable to Lender, one in
the principal amount of $16,362,500 and the other in the principal amount of
$3,550,000 (collectively, the "Towson Note", and together with the Gateway Note
and the Tollgate Note, the "Note"), to evidence a loan in the aggregate
principal sum of $19,912,500 (the "Towson Loan", and together with the Gateway
Loan and the Tollgate Loan, the "Loan"). The Towson Loan is secured by an
Indemnity Deed of Trust, Assignment of Leases, Rents and Contracts, Security
Agreement and Fixture Filing (the "Towson Deed of Trust", and together with the
Gateway Deed of Trust and the Tollgate Deed of Trust, the "Deed
of Trust") on the Property (as defined in the Towson Deed of Trust) and the
Related Agreements (as defined in the Towson Deed of Trust) (all of the
foregoing being collectively referred to herein as the "Towson Loan Documents",
and together with the Gateway Loan Documents and the Towson Loan Documents, the
"Loan Documents").
B. Pursuant to the Commitment, Borrower agreed to provide Lender on
or before the Disbursement Date a Subordination, Nondisturbance and Attornment
Agreement on Lender's form ("SNDA") from certain tenants of the Property as
listed on the attached Exhibit A ("Major Tenants").
C. Pursuant to the Section 4(b) of the Tollgate Commitment,
Borrower delivered to Lender a Loan Deposit equal to one percent of the amount
of the Loan (the "Loan Deposit").
D. Borrower has not delivered the SNDAs, but Lender has agreed to
disburse the Loan, subject to Borrower's agreement to deliver the SNDAs as
hereinafter provided.
E. As a material inducement to making and as a condition precedent
to funding the Loan, Lender requires the execution of this Covenant.
AGREEMENTS
NOW THEREFORE, for and in consideration of the foregoing recitals and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower hereby agrees as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The recitals are
hereby incorporated into this Covenant. Initially capitalized terms used but not
otherwise defined in this Covenant have the same meanings given them in the Loan
Documents.
2. SNDA DELIVERY. Borrower shall, within 60 days after the
Disbursement Date, deliver to Lender SNDAs for the Major Tenants, all of which
SNDAs shall be reasonably acceptable to Lender in form and substance, and which
shall be in the form attached as EXHIBIT B hereto or such other form as may be
reasonably acceptable to Lender from national tenants.
3. HOLDBACK. Borrower hereby authorizes Lender to retain $100,000
of the Loan Deposit (the "Holdback") unless and until Borrower delivers the
SNDAs to Lender as provided above. In furtherance of the foregoing, Borrower
hereby pledges to Lender and grants to Lender a security interest in the
Holdback as additional security for the Loan.
4. EVENT OF DEFAULT. An Event of Default shall be deemed to occur
under this Covenant and the Loan Documents in the event Borrower fails to
fulfill the covenants and agreements set forth in Section 2 above within the
time period allowed. Upon any Event of Default, the entire Holdback may be
applied by Lender in its sole discretion to any amounts due with respect to the
Loan.
5. RELATED AGREEMENT. This Covenant shall be deemed to be one of
the Related Agreements.
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6. NOTICES. All notices with respect to this Covenant shall be
giver in the manner provided in each respective Deed of Trust.
* * * * *
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower has executed and delivered this Covenant as
of the date and year first above written.
BORROWER:
INLAND GATEWAY SPE, L.L.C., a
Delaware limited liability company
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
----------------------------------
Authorized Person
GATEWAY VILLAGE LLC,
a Maryland limited liability company
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
----------------------------------
Authorized Person
INLAND BEL AIR SPE, L.L.C., a
Delaware limited liability company
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
----------------------------------
Authorized Person
BEL AIR SQUARE LLC,
a Maryland limited liability company
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
----------------------------------
Authorized Person
INLAND TOWSON SPE, L.L.C., a
Delaware limited liability company
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
----------------------------------
Authorized Person
TOWSON CIRCLE LLC,
a Maryland limited liability company
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
----------------------------------
Authorized Person
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EXHIBIT a
MAJOR TENANTS
GATEWAY
Safeway
Burlington Coat Factory
TOLLGATE
TJ Maxx
Staples
Toys R Us
Michaels
TOWSON
Trader Joe's
Pier One
Bally
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EXHIBIT B
FORM SNDA
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
[RETURN TO ALLSTATE'S OUTSIDE COUNSEL]
______________________________________
______________________________________
______________________________________
______________________________________
AGREEMENT OF SUBORDINATION
NONDISTURBANCE AND ATTORNMENT
THIS AGREEMENT is dated the ____ day of _______________________, between
______________________________________________________________________, a
____________________________________ ("Lender"),
__________________________________________________, a
_________________________________ ("Tenant") and
________________________________________________________________________________
_______, a
____________________________________________________________________________
("Landlord"),
RECITALS:
A. Tenant has executed that certain lease dated ___________________
(the "Lease") with
________________________________________________________________________________
___ as lessor covering the premises described in the Lease ("Premises") in that
certain building located at
________________________________________________________________________________
_______ (the "Property") and more particularly described in Exhibit A attached
hereto and made a part hereof, by this reference; and
B. Lender has made or has agreed to make a mortgage loan to
Landlord secured by a mortgage or deed of trust encumbering the Property which
includes an assignment of Landlord's interest in the Lease (the "Deed of
Trust"); and
C. Tenant and Lender desire to confirm their understanding with
respect to the Lease and the Deed of Trust.
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NOW, THEREFORE, in consideration of the covenants, terms, conditions,
agreements contained herein, the parties hereto agree as follows:
1. The Lease and any extensions, modifications or renewals thereof,
including but not limited to any option to purchase or right of first refusal to
purchase the Property or any portion thereof, if any, is and shall continue to
be subject and subordinate in all respects to the Deed of Trust and the lien
created thereby, and to any advancements made thereunder and to any
consolidations, extensions, modifications or renewals thereof.
2. Tenant agrees to deliver to Lender, in the manner set forth in
Paragraph 7, a copy of any notice of default sent to Landlord by Tenant. If
Landlord fails to cure such default within the time provided in the Lease,
Lender shall have the right, but not the obligation to cure such default on
behalf of Landlord within thirty (30) calendar days after the time provided for
Landlord to cure such default in the Lease or within a reasonable period if such
default cannot be cured within that time, provided Lender is proceeding with due
diligence to cure such default. In such event Tenant shall not terminate the
Lease while such remedies are being diligently pursued by Lender. Further,
Tenant shall not terminate the Lease on the basis of any default by Landlord
which is incurable by Lender (such as, for example, the bankruptcy of Landlord
or breach of any representation by Landlord), provided Lender is proceeding with
due diligence to commence an action to appoint a receiver or to obtain the right
to possession of the Property by foreclosure, deed in lieu of foreclosure, or
otherwise ("Foreclosure"). Tenant hereby agrees that no action taken by Lender
to enforce any rights under the Deed of Trust or related security documents, by
reason of any default thereunder (including without limitation, the appointment
of a receiver, any Foreclosure or any demand for rent under any assignment of
rents or leases) shall give rise to any right of Tenant to terminate the Lease
nor shall such action invalidate or constitute a breach of any of the terms of
the Lease.
3. So long as Tenant is not in default under the Lease, Tenant's
possession and occupancy of the Premises shall not be disturbed by Lender during
the term of the Lease or any extension thereof.
4. If Lender succeeds to the interest of Landlord under the Lease,
subject to Tenant's performance of its obligations under the Lease, the Lease
will continue in full force and effect. Thereupon, Lender shall recognize the
Lease and Tenant's rights thereunder and Tenant shall make full and complete
attornment to Lender as substitute Landlord upon the same terms, covenants and
conditions as provided in the Lease, except for any option to purchase or right
of first refusal to purchase the Property as may be provided in the Lease.
Further, Tenant agrees that any such option or right of first refusal to
purchase the Property or any portion thereof, as may be provided in the Lease
shall not apply to and shall not in any way impair or delay any Foreclosure, as
defined herein.
5. Tenant agrees that, if Lender shall succeed to the interest of
Landlord under the Lease, Lender, its successors and assigns, shall not be:
(a) liable for any prior act or omission of Landlord or any prior
landlord or consequential damages arising therefrom; or
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(b) subject to any offsets or defenses which Tenant might have as to
Landlord or any prior landlord; or
(c) required or obligated to credit Tenant with any rent or
additional rent for any rental period beyond the then current
month which Tenant might have paid Landlord; or
(d) bound by any cancellation or termination of the Lease (other
than a unilateral termination made by Tenant pursuant to the
terms of the Lease) or any material amendments or modifications
of the Lease such as those affecting rent, term or permitted use
made without Lender's prior written consent; or
(e) liable for refund of all or any part of any security deposit
unless such security deposit shall have been actually received
by Lender.
The foregoing shall not, however: (i) relieve Lender or any other party
succeeding to the interests of Landlord as a result of any foreclosure of the
obligation to remedy or cure conditions at the Premises which constitute a
landlord default under the Lease and which continue at the time of such
succession or acquisition, and (ii) constitute a waiver by Tenant of any claims
or causes of action it may have against Landlord as a result of conditions or
events which occurred prior to the succession by Lender to the interests of
Landlord.
6. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. The words, "Lender," "Landlord" and "Tenant" shall include their
respective heirs, legatees, executors, administrators, beneficiaries, successors
and assigns.
7. All notices, and all other communication with respect to this
Agreement, shall be directed as follows: if to Lender, c/o Commercial Mortgage
Division, 0000 Xxxxxxx Xxxx, Xxxxx X0X, Xxxxxxxxxx, XX 00000-0000, Attention:
Servicing Manager or such other address as Lender may designate in writing to
Tenant and, if to Tenant, at the address set forth in the Lease or at such other
address as Tenant may designate in writing to Lender. All notices shall be in
writing and shall be: (a) hand-delivered; (b) sent by United States express mail
or by private overnight courier; or (c) served by certified mail postage
prepaid, return receipt requested, to the appropriate address set forth above.
Notices served as provided in (a) and (b) shall be deemed to be effective upon
delivery. Any notice served by certified mail shall be deposited in the United
States mail with postage thereon fully prepaid and shall be deemed effective on
the day of actual delivery as shown by the addressee's return receipt or the
expiration of three business days after the date of mailing, whichever is
earlier in time.
8. Landlord has agreed under the Deed of Trust and other loan
documents that rentals payable under the Lease shall be paid directly by Tenant
to Lender upon any default by Landlord under the Deed of Trust. After receipt of
notice from Lender to Tenant, at the address set forth above or at such other
address as to which Lender has been notified in writing, that rentals under the
Lease should be paid to Lender, Tenant shall pay to Lender, or at the direction
of Lender, all monies due or to become due to Landlord under the Lease. Tenant
shall have no responsibility to ascertain whether such demand by Lender is
permitted under the Deed of Trust,
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or to inquire into the existence of a default. Landlord hereby waives any right,
claim, or demand it may now or hereafter have against Tenant by reason of such
payment to Lender, and any such payment shall discharge the obligations of
Tenant to make such payment to Landlord.
9. This Agreement contains the entire agreement between the parties
and no modifications shall be binding upon any party hereto unless set forth in
a document duly executed by or on behalf of such party.
10. This Agreement may be executed in multiple counterparts, all of
which shall be deemed originals and with the same effect as if all parties had
signed the same document. All of such counterparts shall be construed together
and shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LENDER: TENANT:
ALLSTATE INVESTMENTS, LLC
By:
------------------------
Its:
----------------------- ------------------------
BORROWER:
---------------------------
By:
------------------------
Its:
-----------------------
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STATE OF ______________)
) SS.
COUNTY OF _____________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that _____________________, the _____________ of
______________, a(n) __________________, personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that as such officer he/she signed and
delivered the said instrument as his/her free and voluntary act and deed and as
the free and voluntary act and deed of said entity(ies), for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _________,
_________.
(SEAL)
-------------------------------
Notary Public
My commission expires:
------------------------------
STATE OF ______________)
) SS.
COUNTY OF _____________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that __________________, the authorized signatory
of Allstate Investments, LLC, personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that as such officer he/she signed and delivered the
said instrument as his/her free and voluntary act and deed and as the free and
voluntary act and deed of said entity(ies), for the uses and purposes therein
set forth.
GIVEN under my hand and notarial seal this ___ day of _________,
___________.
(SEAL)
-------------------------------
Notary Public
My commission expires:
-----------------------------
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STATE OF ______________)
) SS.
COUNTY OF _____________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that _____________________, the _____________ of
______________, a(n) __________________, personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that as such officer he/she signed and
delivered the said instrument as his/her free and voluntary act and deed and as
the free and voluntary act and deed of said entity(ies), for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _________,
_________.
(SEAL)
-------------------------------
Notary Public
My commission expires:
------------------------------
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EXHIBIT A TO SNDA
LEGAL DESCRIPTION
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