Exhibit 10.96
JHLICO Loan No. 6518291
TRANSITIONAL SECURITY (PHASE II) RESERVE AGREEMENT
THIS TRANSITIONAL SECURITY (PHASE II) RESERVE AGREEMENT (the "AGREEMENT")
is made as of the 9th day of April, 2004 by and between INLAND WESTERN
SPARTANBURG, L.L.C., a Delaware limited liability company ("BORROWER") and XXXX
XXXXXXX LIFE INSURANCE COMPANY, a Massachusetts corporation ("LENDER").
WITNESSETH
WHEREAS, Borrower is the owner of certain property (the "MORTGAGED
PROPERTY") located at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx, more
particularly described in the Loan Documents (as hereinafter defined); and
WHEREAS, the Mortgaged Property consists of an improved portion currently
owned by Borrower and legally described as "Phase I" on EXHIBIT A attached
hereto and made a part hereof, and the Mortgaged Property will further consist
of an adjacent portion of property ("Phase II") to be hereafter acquired by
Borrower and improved and leased to third party tenants, as hereinafter
provided, which Phase II is shown and legally described as "Phase II" on
EXHIBIT A attached hereto and made a part hereof; and
WHEREAS, pursuant to the terms of a certain application for First Mortgage
Loan dated December 9, 2003, as amended on February 10, 2004 (the
"APPLICATION"), a copy of which Application is attached hereto as EXHIBIT B,
Lender has loaned to Borrower the principal sum of Twenty-seven Million Six
Hundred Ten Thousand and No/100 Dollars ($27,610,000.00) (the "LOAN"), which
shall be initially secured by among other things Phase I, and later by Phase II
as hereinafter provided; and
WHEREAS, the Loan is evidenced by a Note executed by Borrower as of even
date herewith in the principal amount of $27,610,000.00 payable to the order of
Lender (the "NOTE"); and
WHEREAS, the Note is secured by a Mortgage, Assignment of Leases and Rents
and Security Agreement dated as of even date herewith ("Mortgage"), which
encumbers the Mortgaged Property, and by the other "LOAN DOCUMENTS" (as such
term is defined in the Note); and
WHEREAS, Lender requires, as a condition precedent to Lender's acceptance
of the Note, that, until such time as Phase II becomes a portion of the
Mortgaged Property and subject to the lien of the Mortgage, as hereinafter
provided, Borrower will be required to make certain deposits with Lender of
certain funds, to be held, released and used as provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained in this Agreement and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
JHLICO Loan No. 6518291
1. DEFINITIONS. Any capitalized term utilized herein shall have the
meaning as specified in the Mortgage, unless such term is otherwise specifically
defined herein. For the purposes of this Agreement, the following capitalized
terms shall have the meanings indicated:
(a) DEBT SERVICE COVERAGE RATIO shall mean the ratio of Gross Income
(as hereinafter defined) derived from operation of the Mortgaged
Property, less Expenses (hereinafter defined), to Debt Service
Payments.
(b) DEBT SERVICE PAYMENTS shall mean any and all monthly installments
due and owing from time to time under the Note and the Mortgage
and the other Loan Documents.
(c) EXPENSES shall mean, for any month or portion thereof, all
reasonable expenses actually incurred by the Borrower within the
categories set forth below in respect to the ownership,
operation, leasing and occupancy of the Mortgaged Property,
determined on the basis of sound cash accounting practices
consistently applied and in accordance with generally accepted
accounting practices, except that those expenses described in
subsections (a), (b), (c), (e) and (g) below shall not be
accounted for on a cash basis but, rather, to the extent paid by
Borrower [no more than one (1) year in advance], shall be
allocated to the accounting period in which they accrue.
Expenses are as follows (but without duplication of any item):
(a) general real estate taxes paid to the appropriate taxing
authorities; (b) special assessments or similar charges paid to
the appropriate governmental authorities; (c) personal property
taxes; (d) sales and use taxes; (e) costs of utilities, air
conditioning and heating for the Mortgaged Property; (f)
maintenance and repair costs of a non-capital nature; (g)
premiums paid for insurance carried on or with respect to the
Mortgaged Property; (h) direct labor costs, for positions at a
level of building superintendent or below, for labor used in the
maintenance and repair of the Mortgaged Property (but not to
exceed labor costs customarily charged in the Spartanburg, South
Carolina area for similar services on similar properties and
excluding any labor costs for tenant improvements); (i) customary
management fees; (j) principal and interest payments on the Loan;
and (k) leasing commissions at market rates paid to BONA FIDE
third party brokers. Notwithstanding anything included within the
above definition of "Expenses", the following shall be excluded
from Expenses: (i) foreign, U.S., state and local income taxes;
and (ii) depreciation, amortization and other non-cash deductions
of the Borrower for income tax purposes.
(d) LEASE shall mean a written lease for space in the Mortgaged
Property with a tenant that is not an affiliate of the Borrower,
the form of which lease has been approved by the Lender. As used
herein, the term "affiliate" shall mean any person or entity (i)
which owns beneficially, directly or indirectly, any membership
interests of the Borrower or any constituent
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JHLICO Loan No. 6518291
entity of the Borrower, (ii) whose membership interests are owned
beneficially, directly or indirectly, by Borrower or any
constituent entity of the Borrower, (iii) which controls or is
under common control with the Borrower or any constituent entity
of the Borrower, or (iv) which is controlled by Borrower or any
constituent entity of the Borrower. The term "control" means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person or
entity, whether through ownership of voting securities, by
contract or otherwise.
(e) TRANSITION PERIOD shall mean a period of twenty-four (24) months
from the date of initial funding of the Loan.
(f) RENT shall mean all rentals actually received by or paid to the
Borrower, from tenants under the Leases.
2. THE DEPOSIT. Concurrently with its execution of this Agreement,
Borrower agrees to deposit with Lender a Letter of Credit ("LETTER OF CREDIT")
in the amount of Three Million Six Hundred Fifty Thousand and No/100 Dollars
($3,650,000.00) ("DEPOSIT") The Letter of Credit shall be an irrevocable,
unconditional, transferable site draft evergreen Letter of Credit, in form and
substance reasonably satisfactory to Lender, issued by a bank reasonably
satisfactory to Lender, and which shall be drawn upon or reduced or released in
accordance with this Agreement. The Letter of Credit shall be subject to the
Uniform Customs and Practice for Documentary Credits (Publication No. 500),
shall specifically waive Article 17 of such Publication, and shall permit
partial draws and reductions. The Letter of Credit shall also provide that a
draw of the Letter of Credit shall be recognized by the issuer of the Letter of
Credit by 3:00 p.m. of the date the site draft is provided to issuer, provided
such site draft is delivered to the issuer, on or before 11:00 a.m. on such
date. It is further required that the bank issuing the Letter of Credit (or any
substituted letter of credit), be reasonably acceptable to Lender not only at
the time of the issuance of said Letter of Credit, but shall also continue to be
acceptable to Lender during the entire term of said Letter of Credit, including
all extension and/or renewal periods. In the event Lender, in its reasonable
discretion, shall determine that an issuing bank is or has become unacceptable
to Lender, the Borrower shall be obligated to provide Lender within fifteen (15)
business days after Borrower's receipt of written notice from Lender that the
bank is unacceptable with (i) a substitute letter of credit and agreement in
form and substance reasonably satisfactory to Lender and issued by a bank
satisfactory to Lender; or (ii) Three Million Six Hundred Fifty Thousand and
No/100 Dollars ($3,650,000.00) in cash to be held by Lender in escrow pursuant
to the terms of this Agreement and such cash escrow shall be deemed the
"Reserve" hereunder. In the event that Borrower does not provide such substitute
letter of credit and agreement or cash escrow to Lender within fifteen (15)
business days after Borrower's receipt of written notice from Lender of the
unacceptability of said bank, such failure shall be a default under the Loan
Documents and Lender shall be authorized to draw on the Letter of Credit and to
apply the proceeds as described below and to exercise its other remedies under
the Loan Documents. The Deposit and all other funds deposited by Borrower
pursuant to this Agreement shall hereinafter be collectively referred to as the
"Reserve". The Reserve shall be held and
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JHLICO Loan No. 6518291
released by Lender, and used by Borrower, in accordance with the terms and
conditions of this Agreement.
3. USE OF THE RESERVE. Lender shall have no obligation to return the
Letter of Credit unless Borrower has satisfied the requirements for release of
the Reserve to Borrower described below.
4. RELEASE OF RESERVE. The following conditions ("TRANSFER CONDITIONS")
shall apply to the return of the Letter of Credit and/or release of the Reserve:
(a) Borrower shall not then be in breach of any provision of this
Agreement nor shall an Event of Default then exist under any of the Loan
Documents.
(b) Borrower is then the owner in fee simple of Phase II, subject
only to such title exceptions as are reasonably satisfactory to Lender.
(c) Borrower shall provide evidence reasonably satisfactory to Lender
that (i) Rent in an amount not less than $502,908.00 per annum shall be
currently collectible from actual occupants of Phase II under written Leases
that are in form, for periods and at rentals satisfactory in all respects to
Lender, under which Leases there shall be no concessions, free rent or rebates,
and occupancy at Phase II under such Leases shall be no less than 90.5%.
(d) Borrower shall provide evidence reasonably satisfactory to Lender
that Rent in an amount of not less than $3,648,007.00 per annum shall be
currently collectible from actual occupants of the combined Phase I and Phase II
under written Leases that are in form, for periods and at rentals satisfactory
in all respects to Lender, under which Leases there shall be no concessions,
free rent or rebates, and occupancy at the combined Phase I and Phase II under
such Leases shall be no less than 94%.
(e) Borrower shall provide an updated appraisal of the combined Phase
I and Phase II satisfactory to Lender in its reasonable discretion.
(f) The loan to value ratio for the combined Phase I and Phase II
shall not be greater than fifty-five percent (55%) and the Debt Service Coverage
Ratio for the Loan shall not be less than 2.72:1 as calculated by Lender.
(g) Borrower shall provide Lender with a certified rent roll and
operating statements and calculations evidencing satisfaction of the
requirements of Paragraph 4(c) and 4(d) above and the Debt Service Coverage
Ratio as set forth in Paragraph 4(f) above.
(h) Borrower, at its sole cost and expense, shall have executed all
Loan Documents (including without limitation an Amendment to Mortgage in the
form attached hereto as EXHIBIT C) and taken all actions necessary in accordance
with the Application, to provide
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JHLICO Loan No. 6518291
Lender (a) a first priority, perfected lien and security interest in and to
Phase II securing the Loan, and (b) a first priority lien and security interest
in and to Phase I securing the Loan.
(i) Borrower, at its sole cost and expense, shall have delivered to
Lender a title insurance policy covering Phase II dated as of the date and time
of the recording of the Mortgage covering Phase I, in the form of the commitment
for such policy approved at the time of the funding of the Loan and which
otherwise conforms to the requirements of the Application.
(j) Borrower shall have satisfied again all conditions of the
Application for Phase II except that Lender shall accept the items set forth in
the Transition Submission Schedule attached hereto as EXHIBIT D to provide,
update or confirm information to satisfy the requirements of the corresponding
sections of the Application noted on EXHIBIT D.
(k) Borrower shall pay all costs and expenses of Lender in connection
with the satisfaction of the Transition Conditions, including without limitation
attorneys' fees for drafting, negotiating, delivering and recording the Loan
Documents covering Phase II.
(l) Borrower shall provide Lender with such additional documents,
certificates and affidavits as Lender may reasonably request.
If Borrower shall not then be in breach of any provision of this Agreement
nor shall an Event of Default then exist under any of the Loan Documents, then
Lender, within ten (10) business days after receipt of a disbursement request
("Disbursement Request") in the form attached hereto as EXHIBIT E shall, subject
to the terms and conditions set forth below, return to Borrower the Reserve
and/or the original Letter of Credit then in the possession of Lender.
Borrower agrees to use diligent efforts to satisfy the Transition
Conditions on or before expiration of the Transition Period. In the event that
the Borrower fails to satisfy the Transition Conditions on or before expiration
of the Transition Period, then Lender, in its sole discretion, may elect either
(a) to continue to hold the Letter of Credit and/or Reserve for an additional
period of time which Lender shall determine in its sole discretion, or (b) to
apply the Letter of Credit and/or Reserve as provided in Section 5 below.
5. REMEDIES.
(a) In order to secure Borrower's repayment of the Note and
performance of all other covenants and conditions required on the part of
Borrower to be observed or performed hereunder and under the Loan Documents,
Borrower, to the extent Borrower possesses any interest in the Reserve, hereby
pledges, assigns and grants to Lender a continuing first lien security interest
in the Reserve, and Lender is hereby given a lien upon, security title to, and a
security interest in the Reserve. Borrower hereby acknowledges that Lender has
complete dominion and control over the Reserve, and Borrower shall not, without
the express written consent of Lender, have any access to or right to draw
against any of the Reserve.
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JHLICO Loan No. 6518291
(b) Upon the occurrence of an Event of Default or in the event of
Borrower's breach of any provision of this Agreement, which breach is not cured
within five (5) business days after Borrower's receipt of written notice, or in
the event Lender receives notice of the non-renewal of the Letter of Credit and
does not receive from the issuer of the Letter of Credit, at least thirty (30)
days prior to the date upon which such renewal will take place, a replacement
Letter of Credit in form and substance reasonably satisfactory to Lender in its
sole discretion from an issuer reasonably satisfactory to Lender as described
herein, Lender shall have all remedies available under Article 9 of the Uniform
Commercial Code, under common law, and under any other applicable laws and, at
its sole option, may terminate this Agreement, and may draw upon the Letter of
Credit and/or retain any funds constituting the Reserve then being held pursuant
to this Agreement and apply such Reserve in such order and in such amounts as
Lender shall elect, in its sole and absolute discretion: (i) in whole or in
part, in such amount as Lender in its sole discretion may elect toward repayment
of the indebtedness evidenced by the Note and the Loan Documents; and/or (ii)
toward reimbursement of Lender for any losses or expenses (including, without
limitation, legal fees) suffered or incurred by Lender as a result of such
default.
6. INDEMNIFICATION. Borrower shall hold harmless, indemnify and defend
Lender from and against any and all liabilities, obligations, claims, demands,
damages, penalties, causes of action, losses, fines, costs and expenses
(including without limitation reasonable attorneys' fees and expenses) imposed
upon or incurred by Lender arising from, or in connection with, directly or
indirectly, this Agreement, except if caused by Lender's gross negligence or
willful misconduct. This indemnity is in addition to any other indemnity
agreements made by Borrower to Lender in the Mortgage, the Note or in any of the
other Loan Documents. Borrower covenants and agrees that, in performing any of
its duties under this Agreement, neither Lender nor any of its successors or
assigns shall be liable for any losses, costs or damages which may be incurred
by any of them as a result thereof, except for any losses, costs or damages
arising out of the willful misconduct or gross negligence of such party.
7. FEES AND COSTS. Borrower shall reimburse Lender within ten (10)
business days after demand all reasonable fees, charges, costs and expenses
incurred by Lender in connection with all inspections made by Lender or Lender's
representatives in carrying out Lender's responsibility to make certain
determinations under this Agreement.
8. MISCELLANEOUS.
(a) Except as otherwise expressly provided herein, in any instance
where the consent or approval of Lender is required or may be given or where any
determination, judgment or decision is to be rendered by Lender under this
Agreement, such approval and consent shall be given or withheld in Lender's
reasonable discretion, and such approval and consent shall not be unreasonably
delayed or conditioned.
(b) All notices hereunder shall be given in accordance with the
provisions of the Mortgage, except all notices hereunder to Lender shall be
given to the following address: Xxxx Xxxxxxx Life Insurance Company, Xxxx
Xxxxxxx Place, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxx
Xxxxxxx, Loan Number 6518291.
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JHLICO Loan No. 6518291
(c) This Agreement shall be binding upon Borrower and its heirs,
devisees, representatives, successors and assigns, including successors in
interest of Borrower in and to all or any part of the Mortgaged Property, and
shall inure to the benefit of and may be enforced by Lender and its heirs,
successors, legal representatives, substitutes and assigns. Borrower shall not
assign any of its rights or obligations under this Agreement.
(d) This Agreement is intended solely for the benefit of Borrower and
Lender, and no third party shall have any right or interest in this Agreement,
nor any right to enforce this Agreement against any party hereto.
(e) This Agreement contains the complete and entire understanding of
the parties with respect to the matters covered and 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 and Lender, but only by an
agreement in writing signed by the party against whom the enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
(f) Each and every provision for the consent, approval, inspection,
review or verification by Lender hereunder is for Lender's own purpose and
benefit only, and no other party may require that the same be given or be
entitled to assume that Lender shall refuse to make or give the same.
(g) Borrower hereby covenants that Borrower shall not further pledge,
assign or grant a security interest or any other interest in or to, the Reserve,
or any proceeds, replacement or substitutes thereto.
(h) No right or remedy conferred upon or reserved to Lender under
this Agreement is intended to be exclusive of any other right or remedy, and
each and every such right and remedy shall be cumulative and concurrent and may
be enforced separately, successively or together, and may be exercised from time
to time as often as may be deemed necessary by Lender.
(i) Nothing herein or in the Loan Documents is intended to create,
nor creates, nor shall be deemed to create, a joint venture, partnership,
tenancy-in-common, or joint tenancy relationship between Borrower and Lender,
nor to grant Lender any interest in the Mortgaged Property other than that of
creditor or mortgagee.
(j) If any provisions of this Agreement shall conflict with any
provisions of the other Loan Documents regarding the Reserve, the provisions
contained in this Agreement shall control.
(k) 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.
(l) For purposes of Article 9 of the Uniform Commercial Code, the
laws of the State of Georgia shall govern the perfection, the effect of
perfection or non-perfection, and the
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JHLICO Loan No. 6518291
priority of any security interests in a deposit account with a bank created by
this Agreement. In all other respects, this Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of Massachusetts and
the applicable laws of the United States of America.
(m) This Agreement may be executed in multiple counterparts, each of
which when taken together shall constitute one and the same original.
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JHLICO Loan No. 6518291
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of
the date first above written.
BORROWER:
INLAND WESTERN SPARTANBURG, L.L.C.,
a Delaware limited liability company
By: Inland Western Spartanburg SPE, L.L.C., a
Delaware limited liability company, its Sole
Member
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its Sole
Member
Signed, sealed and delivered
in the presence of:
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
/s/ Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
------------------------------- -----------------------------------
Name: Title: Asst Secretary
----------------------------------
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Name:
Borrower's Social Security or Taxpayer
Identification Number:______________________
LENDER:
Signed, sealed and delivered XXXX XXXXXXX LIFE INSURANCE COMPANY,
in the presence of: a Massachusetts corporation
-------------------------------
Name: By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
-------------------------------
Name:
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JHLICO Loan No. 6518291
LIST OF EXHIBITS
Exhibit "A" - Legal Description
Exhibit "B" - Application
Exhibit "C" - Amendment to Mortgage
Exhibit "D" - Transition Submission Schedule
Exhibit "E" - Disbursement Request
JHLICO Loan No. 6518291
EXHIBIT "A"
LEGAL DESCRIPTION
Phase I
WAL-MART TRACT
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004,
and having the following metes and bounds to wit:
Commencing at an iron pin on the southern right-of-way of W.O. Xxxxx Boulevard
(US 29, 75' right-of-way from centerline), said iron pin being located
approximately 269 feet in a southwesterly direction from Westchester Place and
being the most northwesterly corner of Xxxx Road Land Associates, LLC; thence
leaving said right-of-way along the common line of Xxxx Road Land Associates,
LLC S 04-58-26 E for 197.42 feet to an iron pin; thence along the common line of
Xxxx Road Land Associates, LLC and Camelot 1 Subdivision S 04-58-26 E for 637.89
feet to an iron pin being the POINT OF BEGINNING; thence continuing along the
common line of Camelot 1 Subdivision S 04-58-26 E for 946.57 feet to a concrete
monument found; thence along the common line of Camelot III-A Subdivision S
50-54-40 W for 710.29 feet to an iron pin; thence along the common line of
Xxxxxxxxx 0 (Xxxxx, Xxxxxx Xxxxxx - Xxxxx 2) N 04-58-26 W for 247.73 feet to an
iron pin; thence along the common line of Outparcel 6 and Outparcel 5 N 48-14-23
W for 696.83 feet to an iron pin; thence along the common line of Out Parcel 2
the following courses and distances: N 00-15-30 W for 25.94 feet to an iron pin;
thence N 44-09-51 W for 78.09 feet to an iron pin; thence N 29-43-08 W for
118.42 feet to an iron pin; thence N 79-48-01 W for 19.80 feet to an iron pin on
the eastern right-of-way of Xxxxxx Centre Drive (variable width right-of-way);
thence along said eastern right-of-way the following courses and distances: N
41-25-14 E for 73.72 feet to an iron pin; thence N 27-50-30 E for 49.89 feet to
an iron pin; thence N 41-45-37 E for 79.85 feet to an iron pin; thence with a
curve to the right having a radius of 438.50 feet, an arc length of 96.O8 feet
and a chord bearing and distance of N 48-02-15 E for 95.89 feet to an iron pin;
thence with a curve to the left having a radius of 347.50 feet, an arc length of
129.44 feet and a chord bearing and distance of N 43-38-36 E for 128.69 feet to
a PK nail; thence leaving said right-of-way along the common line of Shops Tract
2 S 61-04-39 E for 53.90 feet to a PK nail; thence N 85-00-00 E for 141.35 feet
to a PK nail; thence S 04-58-26 E for 33.69 feet to a PK nail; thence N 85-01-34
E for 167.60 feet to a PK nail; thence S 04-58-26 E for 15.60 feet to a PK nail;
thence N 85-01-34 E for 116.75 feet to a point at a building corner; thence N
04-58-26 W for 34.08 feet to a point on the building line of Shops Tract 2;
thence N 85-01-34 E for 90.83 feet to a PK nail; thence N 04-58-26 W for 117.28
feet to a PK nail; thence
JHLICO Loan No. 6518291
along the common line of Home Depot USA, Inc. N 85-01-34 E for 123.55 feet to a
PK nail; thence N 47-05-16 E for 46.10 feet to a PK nail; thence N 85-01-34 E
for 148.64 feet to an iron pin being the Point of Beginning. Said tract contains
22.217 acres or 967,776 square feet more or less.
TMS No. 6-21-05-001.04
SHOPS TRACT 1
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004
and having the following metes and bounds to wit:
Beginning at an iron pin on the southern right-of-way of W.O. Xxxxx Boulevard
(US 29, 75' right-of-way from centerline), said iron pin being located
approximately 269 feet in a southwesterly direction from Westchester Place and
being the most northwesterly corner of Xxxx Road Land Associates, LLC; thence
leaving said right-of-way along the common line of Xxxx Road Land Associates,
LLC S 04-58-26 E for 197.42 feet to an iron pin; thence along the common line of
Home Depot USA, Inc. S 85-01-34 W for 373.46 feet to a PK nail; thence
N 04-58-26 W for 38.00 feet to a PK nail; thence S 85-01-34 W for 302.49 feet to
an iron pin on the eastern right-of-way of the Xxxxxx Centre Drive (variable
width right-of-way; thence along said eastern right-of-way with a curve to the
left having a radius of 897.50 feet, an arc length of 131.60 feet and a chord
bearing and distance of N 00-46-51 W for 131.49 feet to an iron pin; thence
N 04-58-26 W 29.00 feet to an iron pin at the intersection of said eastern
right-of-way with the southern right-of-way of W.O. Xxxxx Boulevard; thence
along said southern right-of-way N 85-05-19 E for 666.34 feet to an iron pin
being the Point of Beginning. Said tract contains 2,774 acres or 120,842 square
feet more or less.
TMS No. 6-21-05-001.02
SHOPS TRACT 2
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004,
and having the following metes and bounds to wit:
Commencing at an iron pin on the southern right-of-way of W.O. Xxxxx Boulevard
(US 29, 75' right-of-way from centerline), said iron pin being located
approximately 269 feet in a southwesterly direction from Westchester Place and
being the most northwesterly corner of Xxxx Road Land Associates, LLC; thence
leaving said right-of-way along the common line of Xxxx Road Land Associates,
LLC S 04-58-26 E for 197.42 feet to an iron pin; thence along the common line of
Xxxx Road Land Associates, LLC and Camelot 1 Subdivision S 04-58-26 E for 637.89
feet to an iron pin; thence along the common line of the Wal-Mart Tract
S 85-01-34 W for
JHLICO Loan No. 6518291
148.64 feet to a PK nail; thence S 47-05-16 W for 46.10 feet to a PK nail;
thence S 85-01-34 W for 123.55 feet to a PK nail being the POINT OF BEGINNING;
thence continuing along the common line of the Wal-Mart Tract S 04-58-26 E for
117.28 feet to a PK nail; thence S 85-01-34 W for 90.83 feet to a point on the
building line; thence S 04-58-26 E for 34.08 feet to a point being a building
corner; thence S 85-01-34 W for 116.75 feet to a PK nail; thence N 04-58-26 W
for 15.60 feet to a PK nail; thence S 85-01-34 W for 167.60 feet to a PK nail;
thence N 04-58-26 W for 33.69 feet to a PK nail; thence S 85-00-00 W for 141.35
feet to a PK nail; thence N 61-04-39 W for 53.90 feet to a PK nail on the
eastern right-of-way of Xxxxxx Centre Drive (variable width right-of-way);
thence along said eastern right-of-way with a curve to the left having a radius
of 347.50 feet, an arc length of 60.08 feet and a chord bearing and distance of
N 28-01-09 E for 60.01 feet to an iron pin; thence leaving said eastern
right-of-way along the common line of Home Depot USA, Inc. S 61-04-39 E for
14.36 feet to an iron pin; thence S 41-54-43 E for 47.58 feet to an iron pin;
thence N 85-01-34 E for 187.25 feet to a PK nail; thence N 04-58-26 W for 63.03
feet to a PK nail; thence N 85-01-34 E for 115.89 feet to an iron pin; thence N
04-58-26 W for 4.76 feet to an iron pin; thence N 85-01-34 E for 184.94 feet to
a PK nail being the Point of Beginning. Said tract contains 1.214 acres or
52,875 square feet more or less.
TMS No. 6-21-05-001.03
SHOPS TRACT 3
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004,
and having the following metes and bounds to wit:
Beginning at an iron pin found on the eastern right-of-way of East Xxxxxxxxxx
Road (SC 215), said iron pin being the most southwesterly corner of Xxxxxxx
(Plat Book 30, page 357); thence leaving said right-of-way along the common line
of Xxxxxxx N 43-52-15 E for 144.59 feet to an iron pin; thence along the common
line of Xxxxx, Xxxxx (Quincy's, Plat Book 88, page 687), Conn (Plat Book 71,
page 16) and Xxxxxxx N 01-25-58 W for 711.35 feet to an iron pin; thence along
the common line of Xxxxxxx S 79-19-11 W for 232.84 feet to an iron pin on the
eastern right-of-way of East Xxxxxxxxxx Road (SC 215); thence along said
right-of-way N 10-42-30 W for 49.72 feet to an iron pin; thence leaving said
right-of-way along the common line of Xxxxxx Drive, LLC (Plat Book 81, page 135)
N 79-11-51 E for 240.75 feet to an iron pin; thence along the common line of
Xxxxxx Drive LLC, P.H. Properties (Plat Book 71, page 16) and Sylwn Partnership
(Plat Book 71, page 16) N 01-27-56 W for 389.60 feet to an iron pin; thence
along the common line of Yeoman's N 73-44-44 E for 233.51 feet to an iron pin;
thence along the common line of C&T Investment, Inc. N 73-50-42 E for 155.49
feet to a concrete monument found; thence along the common line of Out Parcel #1
(Tenant Development Group, LLC S 04-58-26 E for 67.46 feet to an iron pin;
thence N 85-01-34 E for 292.16 feet to an iron pin on the western right-of-way
of Xxxxxx Centre Drive (variable width right-of-way); thence along said western
right-of-way S 04-58-26 E for 101.80 feet to an iron pin; thence S 04-47-10 W
for 281.57 feet to an iron pin; thence S 05-01-22 E for 79.74 feet to an iron
pin; thence with a curve to the right having a radius of 288.50 feet, an arc
length of 284.69 feet and a chord bearing and distance of S 26-02-42 W for
JHLICO Loan No. 6518291
273.28 feet to an iron pin; thence with a curve to the left having a radius of
497.50 feet, an arc length of 109.01 feet and a chord bearing and distance of S
48-02-15 W for 108.79 feet to an iron pin; thence S 41-45-37 W for 502.12 feet
to an iron pin; thence with a curve to the left having a radius of 519.47 feet,
an arc length of 156.11 feet and a chord bearing and distance of S 26-56-56 W
for 155.52 feet to an iron pin; thence with a curve to the right having a radius
of 88.50 feet, an arc length of 103.83 feet and a chord bearing and distance of
S 51-24-53 W for 97.98 feet to an iron pin; thence S S5-01-34 W for 44.71 feet
to a PK nail on the eastern right-of-way of East Xxxxxxxxxx Road (SC 215);
thence along said eastern right-of-way N 10-43-46 W for 36.10 feet to an iron
pin being the Point of Beginning. Said tract contains 14.105 acres or 614,396
square feet more or less.
TMS No. 6-21-05-001.07
ALSO, all real property rights, including, but not limited to, rights of
ingress, egress, access and parking arising and under the following instruments:
A) Amended and Supplemented Covenants regarding Tenant Uses, dated
February 19, 2004, recorded in Deed Book 79-T at page 191,
Spartanburg County records; and
B) Covenants Regarding Tenant Uses dated January 31, 2004, recorded
March 1, 2004 in Deed Book 79-U at page 446, Spartanburg County
records.
C) Easements and Covenants with Restrictions Affecting Land dated
November 1, 2002, and recorded in Deed Book 76-T at page 610,
Spartanburg County records.
D) First Amendment to Easement with Covenants and Restrictions Affecting
Land dated November 6, 2003, and recorded in Deed Book 79-B at page
911, Spartanburg County records.
Phase II
All of that property identified generally as Out Parcel #2, Out Parcel #5 and
Out Parcel #6 (Shops) on ALTA/ACSM Land Title Survey #51826 - Inland dated
January 19, 2004 (last revised on March 24, 2004) prepared by Xxxxx X. Xxxxxxxx,
Xxxxxxxx & Associates, Inc., and to be more fully legally described in a manner
approved by Lender
JHLICO Loan No. 6518291
EXHIBIT "B"
Application
JHLICO Loan No. 6518291
EXHIBIT "C"
AMENDMENT TO MORTGAGE
JHLICO Loan No. 6518291
FIRST AMENDMENT TO MORTGAGE
This Agreement made as of this _____ day of ___________, 2006, by and
between INLAND WESTERN SPARTANBURG, L.L.C., a Delaware limited liability company
("Borrower"), and XXXX XXXXXXX LIFE INSURANCE COMPANY, a Massachusetts
corporation ("Lender").
RECITALS:
A. Inland Western Spartanburg, L.L.C., a Delaware limited liability
company is the maker of (i) a Mortgage Note dated as of April 9, 2004 in the
original principal amount of Twenty-seven Million Six Hundred Ten Thousand and
No/100 Dollars ($27,610,000.00) made payable to the order of Lender ("the
Note"), (ii) a Mortgage, Assignment of Leases and Rents and Security Agreement
dated as of April 9, 2004 and recorded on April ____, 2004 in the Office of the
Spartanburg County, South Carolina Register of Deeds in Book ____, Page ________
("the Mortgage"), securing payment of the indebtedness evidenced by the Note and
conveying the real and personal property described therein (and described in
Exhibit A attached hereto) to Lender, (iii) an Assignment of Leases and Rents
dated as of April 9, 2004 ("the Rent Assignment") and recorded on April _____,
2004 in the Office of the Spartanburg County, South Carolina Register of Deeds
in Book __________, Page __________, and certain other Loan
JHLICO Loan No. 6518291
Documents (as hereinafter defined). The Note evidences indebtedness of Borrower
to Lender in the original principal amount of $27,610,000.00, which indebtedness
is hereinafter sometimes referred to as "the Loan". The Mortgage, the Rent
Assignment and all other documents related to the Loan or securing the Note are
hereinafter called "the Loan Documents".
B. The Note and Mortgage and Rent Assignment and all of the other
Loan Documents are presently owned and held by Lender.
C. Borrower and Lender have agreed to amend the Mortgage on the
terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender hereby
covenant and agree as follows:
1. Effective as of the date hereof, the legal description set forth
on Exhibit A to the Mortgage shall be and hereby is amended by deleting it in
its entirety and by substituting in lieu thereof the following:
EXHIBIT A
[To be completed upon preparation of a title report and survey of Phase II]
2. Except as expressly amended and modified hereby, the Mortgage as
amended hereby and all of the other Loan Documents, and all of the terms and
provisions thereof, are hereby ratified and confirmed and shall remain in full
force and effect.
JHLICO Loan No. 6518291
IN WITNESS WHEREOF, the parties have executed this instrument as of the
date first above written.
BORROWER:
INLAND WESTERN SPARTANBURG, L.L.C.,
a Delaware limited liability company
By: Inland Western Spartanburg SPE, L.L.C., a
Delaware limited liability company, its Sole
Member
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its Sole
Member
Signed, sealed and delivered
in the presence of:
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
/s/ Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
------------------------------- -----------------------------------
Name: Title: Asst Secretary
----------------------------------
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Name:
LENDER:
Signed, sealed and delivered XXXX XXXXXXX LIFE INSURANCE
in the presence of: COMPANY, a Massachusetts corporation
-------------------------------
Name: By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
-------------------------------
Name:
JHLICO Loan Xx. 0000000
XXXXX XX XXXXXXXX
XXXXXX OF DuPage
PERSONALLY appeared before me the undersigned witness, who, being duly
sworn, says that (s)he saw Xxxxx X. Xxxxxx, Ass't Sec. of Inland Western
Retail Real Estate Trust, Inc., a Maryland corporation, which is the Sole
Member of Inland Western Spartanburg SPE, L.L.C., a Delaware limited
liability company, (the "Company"), sign, seal and as his/her act and deed,
and as the act and deed of the Company, deliver the foregoing instrument, and
that (s)he with the other witness named above witnessed the execution and
delivery thereof as the act and deed of the said Company.
/s/ Xxxxxxx X. Xxxxx
SWORN to before me this 12th ----------------------------------
day of April, 2004. (Signature of Witness)
/s/ Xxxxx X Xxxxxxxx (SEAL)
------------------------------------
Notary Public,
State of Illinois
----------------------------
My commission expires: OFFICIAL SEAL
-------------- XXXXX X XXXXXXXX
NOTARY PUBLIC. STATE OF ILLINOIS
MY COMMISSION EXPIRES:06/30/04
STATE OF ILLINOIS
COUNTY OF DuPage
PERSONALLY appeared before me the undersigned witness who, being duly
sworn, says that (s)he saw Xxxxx X. Xxxxxx, Ass't Sec of Inland Western Retail
Real Estate Trust, Inc., a Maryland corporation, which is the Sole Member of
Inland Western Spartanburg SPE, L.L.C., a Delaware limited liability company,
which is the Sole Member of Inland Western Spartanburg, L.L.C., a Delaware
limited liability company (the "Company"), sign, seal and as his/her act and
deed, and as the act and deed of the Company, deliver the foregoing instrument,
and that (s)he with the other witness named above witnessed the execution and
delivery thereof as the act and deed of the said Company.
/s/ Xxxxxxxxx X. Xxxxxx
SWORN to before me this 12th -----------------------------------
day of April, 2004. (Signature of Witness)
/s/ Xxxxx X Xxxxxxxx (SEAL)
------------------------------------
Notary Public,
State of Illinois
----------------------------
My commission expires: OFFICIAL SEAL
-------------- XXXXX X XXXXXXXX
NOTARY PUBLIC. STATE OF ILLINOIS
MY COMMISSION EXPIRES:06/30/04
JHLICO Loan No. 6518291
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
PERSONALLY appeared before me the undersigned witness, who, being duly
sworn, says that (s)he saw _____________________, ___________ of Xxxx Xxxxxxx
Life Insurance Company, a Massachusetts corporation (the "Company"), sign, seal
and as his/her act and deed, and as the act and deed of the Company, deliver the
foregoing instrument, and that (s)he with the other witness named above
witnessed the execution and delivery thereof as the act and deed of the said
Company.
SWORN to before me this_______ --------------------------------------
day of________________, 20__. (Signature of Witness)
(SEAL)
------------------------------------
Notary Public,
State of
----------------------------
My commission expires:
--------------
COMMONWEALTH OF MASSACHUSETTS COUNTY OF SUFFOLK
PERSONALLY appeared before me the undersigned witness, who, being duly
sworn, says that (s)he saw _________________________, ______________ of Xxxx
Xxxxxxx Life Insurance Company, a Massachusetts corporation (the "Company"),
sign, seal and as his/her act and deed, and as the act and deed of the Company,
deliver the foregoing instrument, and that (s)he with the other witness named
above witnessed the execution and delivery thereof as the act and deed of the
said Company.
SWORN to before me this ______ --------------------------------------
day of________________, 20___. (Signature of Witness)
(SEAL)
------------------------------------
Notary Public,
State of
----------------------------
My commission expires:
--------------
JHLICO Loan No. 6518291
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Phase I
WAL-MART TRACT
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004,
and having the following metes and bounds to wit:
Commencing at an iron pin on the southern right-of-way of W.O. Xxxxx Boulevard
(US 29, 75' right-of-way from centerline), said iron pin being located
approximately 269 feet in a southwesterly direction from Westchester Place and
being the most northwesterly corner of Xxxx Road Land Associates, LLC; thence
leaving said right-of-way along the common line of Xxxx Road Land Associates,
LLC S 04-58-26 E for 197.42 feet to an iron pin; thence along the common line of
Xxxx Road Land Associates, LLC and Camelot 1 Subdivision S 04-58-26 E for 637.89
feet to an iron pin being the POINT OF BEGINNING; thence continuing along the
common line of Camelot 1 Subdivision S 04-58-26 E for 946.57 feet to a concrete
monument found; thence along the common line of Camelot III-A Subdivision S
50-54-40 W for 710.29 feet to an iron pin; thence along the common line of
Xxxxxxxxx 0 (Xxxxx, Xxxxxx Xxxxxx - Xxxxx 2) N 04-58-26 W for 247.73 feet to an
iron pin; thence along the common line of Outparcel 6 and Outparcel 5 N 48-14-23
W for 696.83 feet to an iron pin; thence along the common line of Out Parcel 2
the following courses and distances: N 00-15-30 W for 25.94 feet to an iron pin;
thence N 44-09-51 W for 78.09 feet to an iron pin; thence N 29-43-08 W for
118.42 feet to an iron pin; thence N 79-48-01 W for 19.80 feet to an iron pin on
the eastern right-of-way of Xxxxxx Centre Drive (variable width right-of-way);
thence along said eastern right-of-way the following courses and distances: N
41-25-14 E for 73.72 feet to an iron pin; thence N 27-50-30 E for 49.89 feet to
an iron pin; thence N 41-45-37 E for 79.85 feet to an iron pin; thence with a
curve to the right having a radius of 438.50 feet, an arc length of 96.08 feet
and a chord bearing and distance of N 48-02-15 E for 95.89 feet to an iron pin;
thence with a curve to the left having a radius of 347.50 feet, an arc length of
129.44 feet and a chord bearing and distance of N 43-38-36 E for 128.69 feet to
a PK nail; thence leaving said right-of-way along the common line of Shops Tract
2 S 61-04-39 E for 53.90 feet to a PK nail; thence N 85-00-00 E for 141.35 feet
to a PK nail; thence S 04-58-26 E for 33.69 feet to a PK nail; thence N 85-01-34
E for 167.60 feet to a PK nail; thence S 04-58-26 E for 15.60 feet to a PK nail;
thence N 85-01-34 E for 116.75 feet to a point at a building corner; thence N
04-58-26 W for 34.08 feet to a point on the building line of Shops Tract 2;
thence N 85-01-34 E for 90.83 feet to a PK nail; thence N 04-58-26 W for 117.28
feet to a PK nail; thence along the common line of Home Depot USA, Inc. N
85-01-34 E for 123.55 feet to a PK nail; thence N 47-05-16 E for 46.10 feet to a
PK nail; thence N 85-01-34 E for 148.64
JHLICO Loan No. 6518291
feet to an iron pin being the Point of Beginning. Said tract contains 22.217
acres or 967.776 square feet more or less.
TMS No. 6-21-05-001.04
SHOPS TRACT 1
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004
and having the following metes and bounds to wit:
Beginning at an iron pin on the southern right-of-way of W.O. Xxxxx Boulevard
(US 29, 75' right-of-way from centerline), said iron pin being located
approximately 269 feet in a southwesterly direction from Westchester Place and
being the most northwesterly corner of Xxxx Road Land Associates, LLC; thence
leaving said right-of-way along the common line of Xxxx Road Land Associates,
LLC S 04-58-26 E for 197.42 feet to an iron pin; thence along the common line of
Home Depot USA, Inc. S 85-01-34 W for 373.46 feet to a PK nail; thence N
04-58-26 W for 38.00 feet to a PK nail; thence S 85-01-34 W for 302.49 feet to
an iron pin on the eastern right-of-way of the Xxxxxx Centre Drive (variable
width right-of-way); thence along said eastern right-of-way with a curve to the
left having a radius of 897.50 feet, an arc length of 131.60 feet and a chord
bearing and distance of N 00-46-51 W for 131.49 feet to an iron pin; thence N
04-58-26 W 29.00 feet to an iron pin at the intersection of said eastern
right-of-way with the southern right-of-way of W.O. Xxxxx Boulevard; thence
along said southern right-of-way N 85-05-19 E for 666.34 feet to an iron pin
being the Point of Beginning. Said tract contains 2.774 acres or 120,842 square
feet more or less.
TMS No. 6-21-05-001.02
SHOPS TRACT 2
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004,
and having the following metes and bounds to wit:
Commencing at an iron pin on the southern right-of-way of W.O. Xxxxx Boulevard
(US 29, 75' right-of-way from centerline), said iron pin being located
approximately 269 feet in a southwesterly direction from Westchester Place and
being the most northwesterly corner of Xxxx Road Land Associates, LLC; thence
leaving said right-of-way along the common line of Xxxx Road Land Associates,
LLC S 04-58-26 E for 197.42 feet to an iron pin; thence along the common line of
Xxxx Road Land Associates, LLC and Camelot 1 Subdivision S 04-58-26 E for 637.89
feet to an iron pin; thence along the common line of the Wal-Mart Tract S
85-01-34 W for 148.64 feet to a PK nail; thence S 47-05-16 W for 46.10 feet to a
PK nail; thence S 85-01-34 W for 123.55 feet to a PK nail being the POINT OF
BEGINNING; thence continuing along the
JHLICO Loan No. 6518291
common line of the Wal-Mart Tract S 04-58-26 E for 117.28 feet to a PK nail;
thence S 85-01-34 W for 90.83 feet to a point on the building line; thence S
04-58-26 E for 34.08 feet to a point being a building corner; thence S 85-01-34
W for 116.75 feet to a PK nail; thence N 04-58-26 W for 15.60 feet to a PK nail;
thence S 85-01-34 W for 167.60 feet to a PK nail; thence N 04-58-26 W for 33.69
feet to a PK nail; thence S 85-00-00 W for 141.35 feet to a PK nail; thence N
61-04-39 W for 53.90 feet to a PK nail on the eastern right-of-way of Xxxxxx
Centre Drive (variable width right-of-way); thence along said eastern
right-of-way with a curve to the left having a radius of 347.50 feet, an arc
length of 60.08 feet and a chord bearing and distance of N 28-01-09 E for 60.01
feet to an iron pin; thence leaving said eastern right-of-way along the common
line of Home Depot USA, Inc. S 61-04-39 E for 14.36 feet to an iron pin; thence
S 41-54-43 E for 47.58 feet to an iron pin; thence N 85-01-34 E for 187.25 feet
to a PK nail; thence N 04-58-26 W for 63.03 feet to a PK nail; thence N 85-01-34
E for 115.89 feet to an iron pin; thence N 04-58-26 W for 4.76 feet to an iron
pin; thence N 85-01-34 E for 184.94 feet to a PK nail being the Point of
Beginning. Said tract contains 1.214 acres or 52,875 square feet more or less.
TMS No. 6-21-05-001.03
SHOPS TRACT 3
All that certain piece, parcel or lot of land lying and being in Spartanburg
County, State of South Carolina, being shown and designated on an ALTA/ASCM Land
Title Survey for Inland Western Spartanburg, L.L.C., Xxxxxx Centre, Phase I, by
Xxxxxxxx & Associates, Inc., dated January 19, 2004, last revised March 3, 2004,
and having the following metes and bounds to wit;
Beginning at an iron pin found on the eastern right-of-way of East Xxxxxxxxxx
Road (SC 215), said iron pin being the most southwesterly xxxxx of Xxxxxxx (Plat
Book 30, page 357); thence leaving said right-of-way along the common line of
Xxxxxxx N 43-52-15 E for 144.59 feet to an iron pin; thence along the common
line of Xxxxx, Xxxxx (Quincy's, Plat Book 88, page 687), Conn (Plat Book 71,
page 16) and Xxxxxxx N 01-25-58 W for 711.35 feet to an iron pin; thence along
the common line of Xxxxxxx S 79-19-11 W for 232.84 feet to an iron pin on the
eastern right-of-way of East Xxxxxxxxxx Road (SC 215); thence along said
right-of-way N 10-42-30 W for 49.72 feet to an iron pin; thence leaving said
right-of-way along the common line of Xxxxxx Drive, LLC (Plat Book 81, page 135)
N 79-11-51 E for 240.75 feet to an iron pin; thence along the common line of
Xxxxxx Drive LLC, P.M. Properties (Plat Book 71, page 16) and Sylwn Partnership
(Plat Book 71, page 16) N 01-27-56 W for 389.60 feet to an iron pin; thence
along the common line of Yeoman's N 73-44-44 E for 233.51 feet to an iron pin;
thence along the common line of C&T Investment, Inc. N 73-50-42 E for 155.49
feet to a concrete monument found; thence along the common line of Out Parcel #1
(Tenant Development Group, LLC S 04-58-26 E for 67.46 feet to an iron pin;
thence N 85-01-34 E for 292.16 feet to an iron pin on the western right-of-way
of Xxxxxx Centre Drive (variable width right-of-way); thence along said western
right-of-way S 04-58-26 E for 101.80 feet to an iron pin; thence S 04-47-10 W
for 281.57 feet to an iron pin; thence S 05-01-22 E for 79.74 feet to an iron
pin; thence with a curve to the right having a radius of 288.50 feet, an arc
length of 284.69 feet and a chord bearing and distance of S 26-02-42 W for
273.28 feet to an iron pin; thence with a curve to the left having a radius of
497.50 feet, an arc length of 109.01 feet and a chord bearing and distance of S
48-02-15
JHLICO Loan No. 6518291
W for 108.79 feet to an iron pin; thence S 41-45-37 W for 502.12 feet to an iron
pin; thence with a curve to the left having a radius of 519.47 feet, an arc
length of 156.11 feet and a chord bearing and distance of S 26-56-56 W for
155.52 feet to an iron pin; thence with a curve to the right having a radius of
88.50 feet, an arc length of 103.83 feet and a chord bearing and distance of S
51-24-53 W for 97.98 feet to an iron pin; thence S 85-01-34 W for 44.71 feet to
a PK nail on the eastern right-of-way of East Xxxxxxxxxx Road (SC 215); thence
along said eastern right-of-way N 10-43-46 W for 36.10 feet to an iron pin being
the Point of Beginning. Said tract contains 14.105 acres or 614,396 square feet
more or less.
TMS No. 6-21-05-001.07
ALSO, all real property rights, including, but not limited to, rights of
ingress, egress, access and parking arising and under the following instruments:
A) Amended and Supplemented Covenants regarding Tenant Uses, dated
February 19, 2004, recorded in Deed Book 79-T at page 191,
Spartanburg County records; and
B) Covenants Regarding Tenant Uses dated January 31, 2004, recorded
March 1, 2004 in Deed Book 79-U at page 446, Spartanburg County
records.
C) Easements and Covenants with Restrictions Affecting Land dated
November 1, 2002, and recorded in Deed Book 76-T at page 610,
Spartanburg County records.
D) First Amendment to Easement with Covenants and Restrictions Affecting
Land dated November 6, 2003, and recorded in Deed Book 79-B at page
911, Spartanburg County records.
Phase II
All of that property identified generally as Out Parcel #2, Out Parcel #5 and
Out Parcel #6 (Shops) on ALTA/ACSM Land Title Survey #51826 - Inland dated
January 19, 2004 (last revised on March 24, 2004) prepared by Xxxxx X. Xxxxxxxx,
Xxxxxxxx & Associates, Inc., and to be more fully legally described in a manner
approved by Lender
Return after recording to:
Xxxxx X. Sarasek, Esq.
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
JHLICO Loan No. 6518291
EXHIBIT "D"
TRANSITION SUBMISSION SCHEDULE
In conjunction with the satisfaction of the Transition Conditions, Lender will
accept the following information and materials, rather than the requirements
stated in the corresponding section of the Application, so long as (1) Borrower
satisfied the requirements set forth in the corresponding section of the
Application on or before the date of funding of the Loan (the "Closing"); (2)
Borrower certifies to Lender in writing on a form satisfactory to Lender that no
material change has occurred to any of the following items since the Closing;
and (3) no Event of Default exists under the Loan Documents.
SECTION 13: THIRD PARTY INSPECTIONS
If requested by Lender, Borrower shall furnish an update of the Appraisal
prepared by the appraiser who prepared the original Appraisal. The update must
be acceptable to Lender.
SECTION 14: LEASE REQUIREMENTS
Borrower shall provide an updated rent roll certified by Borrower in form
reasonably satisfactory to Lender.
SECTION 23: OPINION OF COUNSEL
Borrower shall provide new or updated opinions satisfactory in form and
substance to Lender and its counsel dated as of the date of recording of the
Amendment to the Mortgage covering Phase II from an attorney approved by Lender
and its counsel and, in addition, at Lender's option, from such counsel, opining
to the matters set forth in Sections 9(c)(ix) and (x), to the extent applicable
and 23 of the Application as they apply to the Loan Documents for the Loan.
JHLICO Loan No. 6518291
EXHIBIT "E"
DISBURSEMENT REQUEST
JHLICO LOAN NO. 6518291
TO: XXXX XXXXXXX LIFE INSURANCE COMPANY ("LENDER")
FROM: INLAND WESTERN SPARTANBURG, L.L.C., ("BORROWER")
This Disbursement Request is submitted by Borrower in accordance with the
Transitional Security (Phase II) Reserve Agreement dated as of April 9, 2004
between Borrower and Lender (the "AGREEMENT"). Terms used with initial capital
letters and not defined in this Disbursement Request have the meanings given
them in the Agreement.
1. Borrower hereby requests return of the Letter of Credit and/or
disbursement of the entire Reserve.
2. Borrower certifies, represents and warrants to Lender that (a) the
Mortgaged Property satisfies the Debt Service Coverage Ratio and minimum
loan-to-value requirements set forth in Paragraph 4(f) of the Agreement, (b) all
rent and other sums due by tenants under Leases through the date of this
Disbursement Request have been paid in full, (c) the Leases are in full force
and effect and no default or any event which with the giving of notice or the
lapse of time, or both, would become a default under the Lease by Borrower, or
to Borrower's actual knowledge, by Tenant, has occurred, (d) Borrower is
entitled to a disbursement of the Letter of Credit and/or Reserve pursuant to
the Agreement; (e) Borrower's representations and warranties made in the Loan
Documents and the Agreement are true and correct on and as of this date; and (f)
no Event of Default has occurred.
JHLICO Loan No. 6518291
Date: _____________,20___.
BORROWER:
INLAND WESTERN SPARTANBURG, L.L.C.,
a Delaware limited liability company
By: Inland Western Spartanburg SPE, L.L.C., a
Delaware limited liability company, its Sole
Member
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its Sole
Member
Signed, sealed and delivered
in the presence of:
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
/s/ Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
------------------------------- -----------------------------------
Name: Title: Asst Secretary
----------------------------------
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Name:
JHLICO Loan Xx. 0000000
XXXXX XX XXXXXXXX
XXXXXX OF DuPage
PERSONALLY appeared before me the undersigned witness, who, being duly
sworn, says that (s)he saw Xxxxx X. Xxxxxx, Ass't Sec of Inland Western Retail
Real Estate Trust, Inc., a Maryland corporation, which is the Sole Member of
Inland Western Spartanburg SPE, L.L.C., a Delaware limited liability company,
which is the Sole Member of Inland Western Spartanburg, L.L.C., a Delaware
limited liability company (the "Company"), sign, seal and as his/her act and
deed, and as the act and deed of the Company, deliver the foregoing instrument,
and that (s)he with the other witness named above witnessed the execution and
delivery thereof as the act and deed of the said Company.
SWORN to before me this 12th Xxxxxxx X. Xxxxx
day of April, 2004. -----------------------------------
(Signature of Witness)
/s/ Xxxxx X Xxxxxxxx (SEAL)
------------------------------------
Notary Public,
State of Illinois
----------------------------
My commission expires: OFFICIAL SEAL
-------------- XXXXX X XXXXXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES: 06/30/04
STATE OF ILLINOIS
COUNTY OF DuPage
PERSONALLY appeared before the undersigned witness, who, being duly sworn,
says that (s)he saw Xxxxx X. Xxxxxx, Ass't Sec of Inland Western Retail Real
Estate Trust, Inc., a Maryland corporation, which is the Sole Member of Inland
Western Spartanburg SPE, L.L.C., a Delaware limited liability company, which is
the Sole Member of Inland Western Spartanburg, L.L.C., a Delaware limited
liability company (the "Company"), sign, seal and as his/her act and deed, and
as the act and deed of the Company, deliver the foregoing instrument, and that
(s)he with the other witness named above witnessed the execution and delivery
thereof as the act and deed of the said Company.
SWORN to before me this 12th /s/ Xxxxxxxxx X. Xxxxxx
day of April, 2004. -----------------------------------
(Signature of Witness)
/s/ Xxxxx X Xxxxxxxx (SEAL)
------------------------------------
Notary Public,
State of Illinois
----------------------------
My commission expires: OFFICIAL SEAL
------------- XXXXX X XXXXXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES: 06/30/04
Initial Approval -- Name: Date:
----------- ------------------
Disbursement Approval -- Name: Date:
----------- ----------------
LOAN No. 6518291
BORROWER'S CERTIFICATE
DATE: AS OF APRIL __, 2004
BORROWER: INLAND WESTERN SPARTANBURG, L.L.C.
LENDER: XXXX XXXXXXX LIFE INSURANCE COMPANY
LOAN AMOUNT: $27,610,000.00
ADDRESS: 000 XXXXXX XXXXXX
XXXXXXXXXXX, XXXXX XXXXXXXX
In connection with the loan (the "LOAN") in the Loan Amount from
Lender to Borrower secured by the Premises, Borrower hereby certifies as
follows:
1. The Premises are free and clear of all liens, encumbrances,
servitudes and easements of any nature whatsoever, recorded or unrecorded,
except as set forth in the pro forma title insurance policy issued by Chicago
Title Insurance Company (#ETC 2003-2699), and to Borrower's best knowledge there
has been no violation of any of the terms or provisions of any covenants,
conditions, restrictions or easements affecting the Premises.
2. All fixtures and articles of personalty attached to the Premises
or used or usable in connection with the operation of the Premises, except for
trade fixtures or articles of personalty that are owned or leased by any tenants
of the improvements erected on the Premises, have been fully paid for and are
the property of Borrower and are not subject to any security interests,
conditional bills of sale, chattel mortgages or any other title retention
agreements of a similar nature or to any other liens or encumbrances not
specifically referred to herein.
3. There are no federal tax claims or liens assessed or filed
against Borrower, or any principal thereof, and there are no judgments against
Borrower unsatisfied of record or docketed in any court of the state in which
the Premises are located or in any other court located in the United States and
no petition in bankruptcy has ever been filed by or against Borrower or any
related entity or any principal thereof and neither Borrower nor any related
entity or principal thereof has ever made any assignment for the benefit of
creditors, filed a petition in bankruptcy or taken advantage of any insolvency
act or any act for the benefit of debtors.
4. The Premises are not subject to any leases other than the
lease(s) (hereinafter referred to as the "LEASES") described in the most-recent
certified rent roll delivered by Borrower to Lender (the "RENT ROLL"), and no
person, party, firm or corporation has any possessory interest in the Premises
or right to occupy the same except under and pursuant to the provisions of the
Leases. The Rent Roll is a true, complete and correct rent roll of the Premises
as of the date hereof. The requirements of Section 16(a) of Borrower's
Application to Lender for the Loan have been satisfied by Borrower.
5. As of the date hereof, (i) the Borrower is the owner and holder
of the landlord's interest under each Lease; (ii) there are no prior assignments
of any Lease or any
LOAN No. 6518291
portion of rents, additional rents, charges, issues or profits due and payable
or to become due and payable thereunder (hereinafter collectively referred to as
the "RENTS") which are presently outstanding and have priority over the
Assignment of Leases and Rents (the "ASSIGNMENT OF LEASES AND RENTS"), dated the
date hereof, given by Borrower to Lender and intended to be duly recorded; (iii)
each Lease is in full force and effect; (iv) neither Borrower nor to Borrower's
best knowledge any tenant under any Lease is in material default under any of
the terms, covenants or provisions of the Lease and Borrower knows of no event
which, but for the passage of time or the giving of notice or both, would
constitute an event of default under any Lease; (v) to Borrower's best knowledge
there are no offsets or defenses to the payment of any portion of the Rents;
(vi) all Rents due and payable under each Lease have been paid in full and no
said Rents have been paid more than one (1) month in advance of the due dates
thereof; and (vii) no tenant under any Lease has an option or right of first
refusal to purchase the Premises or any portion thereof.
6. The Premises consists of a single lot or multiple tax lots; no
portion of said tax lot(s) covers property other than the Premises or a portion
of the Premises and no portion of the Premises lies in any other tax lot.
7. Borrower is validly existing in good standing under the laws of
the State of its formation, and is qualified to do business in the State of
South Carolina. Borrower has full power and authority to own the Premises and to
accept the Loan and to execute all documents and instruments required in
connection therewith. Borrower has taken all necessary actions for the
authorization of the borrowing on account of the Loan, including, without
limitation, that those interest holders of Borrower whose approval is required
by the terms of any agreement or organizational documents have duly approved the
transactions contemplated by the Loan Documents (as defined below) and have
authorized execution and delivery thereof by the respective signatories. To the
best of Borrower's knowledge, no other consent by any local, state or federal
agency is required in connection with the execution and delivery of the
documents executed and delivered in connection with the Loan (the "LOAN
DOCUMENTS"). The execution, delivery and performance of the obligations imposed
on Borrower under the Loan Documents will not cause Borrower to be in default
under the provisions of any agreement, judgment or order to which Borrower is a
party or by which Borrower is bound.
8. Borrower is not a party to any outstanding contract or agreement
providing for or requiring it to convey its interest in the Premises to any
person, party, firm or corporation, and no person, party or firm or corporation
other than Borrower has any beneficial or equitable right, title or interest in
the Premises, or any part thereof, and no other person, party, firm or
corporation other than Borrower has any beneficial or equitable right, title or
interest in or to the proceeds of the Loan.
9. The Premises have not been damaged or destroyed by fire or other
casualty and no condemnation or eminent domain proceedings have been commenced
with respect to the Premises or any part thereof. To the best of Borrower's
knowledge no such condemnation or eminent domain proceedings are about to be
commenced.
2
LOAN No. 6518291
10. All inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Premises and with respect to
the use and occupancy of the same, including but not limited to, certificates of
occupancy and fire underwriter certificates, have been made by or obtained from
the appropriate governmental authorities.
11. To Borrower's best knowledge, the improvements located on the
Premises are being used only in compliance with applicable local, state and
federal environmental, zoning, subdivision and building requirements, including
without limitation any parking ratio requirements.
12. There are no facts known to Borrower relating to the title to the
Premises or any part thereof which have not been set forth in this Certificate
or in the title policy described in Paragraph 1 of this Certificate.
13. Any and all construction work, alterations and repairs with
respect to the Premises or any part thereof have been paid for in full as of the
date hereof and no notice of any mechanics' or materialmen's liens or of any
claim of right to any such liens has been received.
14. All financial data and documentation furnished on behalf of
Borrower is true, complete and correct as of the date hereof. There has been no
material adverse change in any condition, fact, circumstance or event that would
make any such information inaccurate, incomplete, incorrect or otherwise
misleading.
15. There is no action, suit, proceeding or investigation pending or,
to Borrower's knowledge, threatened against Borrower or any principal of
Borrower which, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial condition,
properties or assets of Borrower, or in any material impairment of the right or
ability of Borrower to carry on its business substantially as now conducted, or
in any material liability on the part of Borrower, or which would draw into
question the validity of any of the Loan Documents or of any action taken or to
be taken in connection with the obligations of Borrower as contemplated therein.
16. Neither Borrower nor any interest holder of Borrower is currently
(a) the subject of or a party to any completed or pending bankruptcy,
reorganization or insolvency proceeding; or (b) the subject of any judgment
unsatisfied of record or docketed in any court of the state in which the
Premises is located or in any other court located in the United States.
17. Borrower does not own any real property or assets other than the
Premises and does not engage in any business other than the management and
operation of the Premises.
18. Attached hereto as EXHIBIT A is a list of the all person or
entities having ownership interests in the Borrower.
19. Attached hereto as EXHIBIT B is a list of the all person or
entities having any rights to control the operations of the Borrower or the
Premises (and not already listed on EXHIBIT B as having an ownership interest in
the Borrower).
3
LOAN No. 6518291
20. This Certificate is made (i) for the benefit of and may be relied
upon by Lender, its successors and assigns; and (ii) to induce Lender to make
the Loan and to accept the Loan Documents, all dated the date hereof, given by
Borrower to Lender as security for the Loan. If the date of funding of the Loan
is subsequent to the date hereof, then the Borrower shall be deemed to have
remade all of the representations and warranties set forth herein and in the
other Loan Documents as of the date of funding of the Loan.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES APPEAR ON NEXT PAGE)
4
LOAN No. 6518291
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed under seal as of the date first written above.
INLAND WESTERN SPARTANBURG, L.L.C.,
a Delaware limited liability company
By: Inland Western Spartanburg SPE, L.L.C., a
Delaware limited liability company, its Sole
Member
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its Sole
Member
Signed, sealed and delivered
in the presence of:
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
/s/ Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
------------------------------- -----------------------------------
Name: Title: Asst Secretary
----------------------------------
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Name:
5
LOAN No. 6518291
EXHIBIT A
Persons or Entities Having Ownership Interests in Borrower
Borrower: Inland Western Spartanburg, L.L.C.
Sole Member of Borrower: Inland Western Spartanburg SPE, L.L.C.
Sole Member of SPE: Inland Western Retail Real Estate Trust, Inc.
LOAN No. 6518291
EXHIBIT B
Persons or Entities Having any Rights to
Control the Operations of the Borrower or the Premises
(and not shown on Exhibit A)
None
