Exhibit 10.433


 


ALLSTATE LIFE INSURANCE
COMPANY


ALLSTATE PLAZA SOUTH,
SUITE G5C


NORTHBROOK, ILLINOIS
60062


 


December 23, 2004


 


Inland
Western Longmont Fox Creek, L.L.C.


2901
Butterfield Road


Oakbrook,
Illinois 60523


 


Re:     
Allstate Life Insurance Company


            Loan
No. 122561


            Fox
Creek Village, 1601-1645 Pace Street


            Longmont,
Colorado(the “Property”)


 


Ladies
and Gentlemen:


 


Reference
is made to our Commitment Letter dated December 17, 2004, as amended (the “Commitment”)
with respect to a $11,485,000 loan (the “Loan”) to
be evidenced by a Mortgage Note of even date herewith payable to Allstate Life
Insurance Company in the principal amount the Loan (the “Note”), and to be
secured by a Deed of Trust, Assignment of Leases, Rents and Contracts, Security
Agreement and Fixture Filing of even date herewith (the “Deed of Trust”)
encumbering the Property. Initially capitalized terms used but not otherwise
defined in this letter agreement (the “Letter Agreement”) have the same
meanings given them in the Deed of Trust.


 


In
consideration of your execution and delivery of the documents evidencing,
securing or otherwise pertaining to the Loan (the “Loan Documents”), you (the “Borrower”)
and we (“Lender”) hereby agree as follows:


 


1.             Related Agreement. This
Letter Agreement shall constitute a Related Agreement


 


2.             Impounds.
With regard to the provisions contained in Section 1.06 of the Deed of Trust
requiring Borrower to deposit 1/12 of the annual amounts of real estate taxes,
regular and special assessments and insurance premiums, Lender hereby agrees to
defer collection of such monthly deposits for so long as (a) Borrower is the
sole fee simple owner of the Property; and (b) no Event of Default exists under
the Loan Documents and no condition or event exists which with notice, the
passage of time, or both, would constitute an Event of Default; and (c) at Lender’s
election, Borrower either pays for a tax reporting service or Borrower promptly
and consistently furnishes evidence that taxes and insurance are being
currently paid.


 


3.             Earthquake Insurance. With
regard to the provisions contained in Section 1.02 of the Deed of Trust
requiring Borrower obtain earthquake insurance coverage on the Property, Lender
hereby agrees to waive such requirement until such time as such coverage is
available at commercially reasonable rates and in Lender’s reasonable opinion
such coverage is generally required by other institutional lenders.


 


4.             Borrower’s Right to Transfer the
Property.    Notwithstanding the provisions
contained in Section 1.08 and other applicable provisions of the Deed of Trust,
Borrower shall have a one time right, provided there is no Event of Default or
default or event which, with notice or the passage of time, or both, could
result in an Event of Default by Borrower under the Loan Documents, to assign,
sell or transfer all of the Property (the “Permitted Transfer”) to a


 





















 


party with experience,
reasonably satisfactory to Lender, in managing property similar to the Property
and whose financial condition is reasonably satisfactory to Lender (“Permitted
Transferee”). The Permitted Transfer shall be further conditioned upon:


 


(a)           the payment by Borrower to Lender of
a transfer fee equal to one percent of the outstanding principal balance of the
Note (a nonrefundable $5,000 deposit toward such transfer fee shall be due at
the time Borrower initially requests a Permitted Transfer, the balance of the transfer
fee shall be due on the closing of the transaction);


 


(b)           the reimbursement of all of Lender’s
expenses, including legal fees, incurred in connection with the Permitted
Transfer;


 


(c)           the Permitted Transferee and such
general partners or principals of Permitted Transferee as Lender may request,
assuming, in form and substance satisfactory to Lender, all obligations  of Borrower 
under the  Loan  Documents, 
including,  without  limitation, 
the Environmental Indemnity Agreement and any nonrecourse exception
indemnity agreement, with the same degree of recourse liability as Borrower and
subject to the same exculpatory provisions;


 


(d)           Lender’s receipt of a title policy
complying with the requirements of the Commitment, updated to the date of the
Permitted Transfer, evidencing that such Permitted Transfer will not adversely
affect Lender’s first and prior lien on the Property or any other rights or
interests granted to Lender under the Loan Documents;


 


(e)           Lender’s receipt of opinions of
counsel acceptable to Lender that all previous opinions, pertaining to Borrower
are true with respect to the Permitted Transferee and the Permitted Transferee
has duly assumed the Loan Documents, and same are valid and enforceable against
Permitted Transferee and the Property; and that Borrower has the requisite
power and authority to properly transfer the Property;


 


(f)            the Property having maintained a
Debt Coverage Ratio of not less than 180 percent for the 12 month period ending
30 days before the date of the Permitted Transfer and the Property having a
projected Debt Coverage Ratio for the next 12 months based on the most recently
approved and certified financial statements and annual rent roll of not less
than 180 percent;


 


(g)           the Permitted Transferee paying to
Borrower at least 40 percent cash down payment on the date of the Permitted
Transfer;


 


(h)           Lender’s receipt and approval of the
purchase and sale contract and copies of the proposed transfer documentation;


 


(i)            Lender’s receipt and approval of the
Permitted Transferee’s resume and financial statements; and


 


(j)            Lender’s receipt and approval of an
updated MAI appraisal by an appraiser satisfactory to Lender (prepared at
Borrower’s expense) specifically confirming a loan to value ratio of no more
than 60 percent.


 


In
addition, Borrower shall have the right, provided there is no Event of Default
or default or event which, with notice or the passage of time, or both, could
result in an Event of Default by Borrower under the Loan Documents, to make a
Permitted Transfer to INLAND


 


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WESTERN
RETAIL REAL ESTATE TRUST, INC., a Maryland corporation (“Member”), the sole
member of Borrower, so long as (x) Borrower pays to Lender a transfer fee equal
to $5,000, (y) the Member assumes, in form and substance satisfactory to
Lender, all obligations of Borrower under the Loan Documents, including,
without limitation, the Environmental Indemnity Agreement, with the same degree
of recourse liability as Borrower and subject to the same exculpatory
provisions, and (z) the conditions and requirements set forth in subparagraphs
4(b), (d) and (e) above are satisfied.


 


Net
Operating Income shall be certified to be true and correct by the managing
general partner, manager or chief financial officer of Borrower.


 


5.               Right to Change Ownership
Interests in Borrower. Notwithstanding the provisions contained in Section
1.08 and other applicable provisions of the Deed of Trust, so long as Member
maintains its status as a Real Estate Investment Trust (a “REIT”), any
encumbrance, security interest or assignment or transfer of ownership of all
types and classes of the shares of Member shall not constitute an improper
encumbrance or transfer.


 


6
             Damage to Property.
With regard to the provisions contained in Section 1.04(A) of the Deed of Trust
requiring Borrower to notify Lender of damage to the Property, the cost
threshold for notification shall be increased to One Hundred Thousand Dollars
($100,000). With regard to the provisions contained in Section 1.04(B) and
1.04(C) of the Deed of Trust regarding the estimated cost of restoration, the
threshold amounts shall be increased to Two Hundred Fifty Thousand Dollars
($250,000).


 


7.             Insurance.   Lender hereby approves the insurance
evidenced by the certificates attached as Exhibit A hereto.


 


8.             Property Manager. Lender
hereby approves Inland Southwest Management LLC, as manager of the Property,
subject to its execution of the letter attached as Exhibit B hereto.


 


9.             Red Bug Loan.   In connection with the Loan, INLAND WESTERN
WINTER SPRINGS RED BUG, L.L.C., a Delaware limited liability company (“Affiliated
Borrower”), an affiliate of Borrower has applied to Allstate for a loan to be
evidenced and secured by (a) a Mortgage Note from Affiliated Borrower to Lender
(the “Other Note”), (b) a Mortgage, Assignment of Leases, Rents and Contracts,
Security Agreement and Fixture Filing of even date herewith (the “Other
Mortgage”) encumbering certain real property owned by Affiliated Borrower and
the respective improvements thereon and personal property associated therewith located
in Winter Springs, Seminole County, Florida, as described in the Other Mortgage
(the “Other Property”), and (c) the Related Agreements defined in the Other
Mortgage (collectively and as the same may be amended, modified or supplemented
from time to time, the “Other Loan Documents”).   Borrower acknowledges and agrees that Lender
is making the Loan with the understanding that the Loan will also be secured by
the Other Mortgage and that an Event of Default under either the Loan Documents
or the Other Loan Documents shall constitute an Event of Default under both the
Loan and the Other Loan.   In connection
with the Other Loan, Borrower shall execute an Amendment to Loan Documents to
be recorded in Boulder County, Colorado, 
and any other documentation necessary to ensure that the loans arc “cross-
collateralized” and “cross-defaulted”.


 


10.           Rights Personal to Borrower.    This Letter Agreement shall be binding upon
Borrower and its successors and assigns, except that the rights granted to
Borrower in this Letter Agreement shall be personal to Borrower and shall not
inure to the benefit of any subsequent


 


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owner
of the Property. In the event Lender transfers all or any part of the Loan or
any interest in the Loan Documents to any other person or entity, Lender agrees
to notify such transferee(s) of the existence of this Letter Agreement and the
fact that it is binding upon Lender’s successors and assigns by delivering such
transferee(s) a true, correct and complete copy of this Letter Agreement concurrently
with such transfer accompanied by a letter of transmittal from Lender advising
such transferee(s) of the binding nature of the provisions of this Letter
Agreement. Lender will send a copy of its letter of transmittal and the
enclosure to Borrower, and Borrower’s name will be shown on the face of the
original letter of transmittal as an addressee thereof.


 


*           *           *           *           *


 


[Signature Page Follows]


 


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  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  ALLSTATE LIFE INSURANCE
  COMPANY,

  an Illinois insurance
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
            Its Authorized Signatories

  
	
   

  	
   

  
	
   

  	
  Accepted and agreed:

  
	
   

  	
   

  
	
   

  	
  INLAND WESTERN LONGMONT
  FOX CREEK, L.L.C.,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  INLAND WESTERN RETAIL REAL
  ESTATE

  TRUST, INC., a Maryland corporation,

  Its sole member

  
	
   

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Asst. Secretary

  	
   

  
	
  Dated: December 23, 2004

  	
   

  	
   

  
						



 


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EXHIBIT A


 


INSURANCE CERTIFICATES


 





















 


EXHIBIT B


 


PROPERTY MANAGER LETTER


 


INLAND SOUTHWEST
MANAGEMENT LLC


 


December 23, 2004


 


Inland Western Longmont Fox
Creek, L.L.C.


290l Butterfield Road


Oakbrook,
Illinois 60523


 


Re:     
Allstate Life Insurance Company


            Loan
No. 122561


            Fox
Creek Village, 1601-1645 Pace Street


            Longmont,
Colorado (the “Property”)


 


Ladies
and Gentlemen:


 


The
undersigned (“Manager”) is the current property manager of the Property
pursuant to that certain Management Agreement (the “Agreement”) dated as of
November 22, 2004, by and between INLAND WESTERN LONGMONT FOX CREEK, L.L.C., a
Delaware limited liability company (“Owner”) and Manager. In consideration of
your making the Loan to Owner (Manager being an affiliate of Owner), Manager
acknowledges and agrees to the following:


 


1.                                       Allstate, in its sole discretion, may
terminate the Agreement by notice to Manager upon acquisition by Allstate of
title to the Property by foreclosure, deed in lieu of foreclosure, or other
transfer of the Property or upon Allstate otherwise obtaining possession of the
Property by any lawful means. Upon the appointment of a receiver or court
appointed officer, either Allstate or such receiver or officer may terminate
the Agreement in its sole discretion by notice to Manager.


 


2                                          Manager waives any right to create a lien
against the Property to secure payment of unpaid management fees.


 


3.                                       Upon the occurrence of, and during the
continuation of, a default under any of the documents evidencing the Loan which
has not been cured in Allstate’s sole judgment, all management fees paid or
payable to Manager thereafter shall be subordinate to amounts owed to Allstate
under such Loan documents.


 


 





















 


4.                                       Upon the occurrence of, and during the
continuation of, a default under any of the documents evidencing the Loan which
has not been cured in Allstate’s sole judgment, all management fees and other
sums received by Manager thereafter in connection with management of the
Property shall be held in trust for the benefit of Allstate.


 


5.                                       Until Allstate elects to terminate the
Agreement as provided herein, Manager will perform all of its obligations,
covenants, conditions and agreements under the Agreement for the benefit of
Allstate and its successors and assigns, so long as Allstate performs the
duties and obligations of Owner under the Agreement accruing after the date
Allstate exercises its rights under the Deed of Trust.


 


	
   

  	
  INLAND SOUTHWEST
  MANAGEMENT LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Its

  	
   

  	
   

  
						



 


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