Exhibit 10.67


 


	
  This instrument prepared by 

  
	
  and when recorded, return to:

  
	
  Kilpatrick Stockton LLP 

  
	
  1100 Peachtree Street, Suite 2800 

  
	
  Atlanta, Georgia 30309 

  
	
  Attn: Mark A. Palmer, Esq.

  



 


    ABOVE SPACE FOR RECORDER’S USE


 


ASSUMPTION AND RELEASE AGREEMENT


 


THIS ASSUMPTION AND RELEASE AGREEMENT (this “Agreement”) is made effective as of July       ,
2006, by and among A-S 46 HWY 290-SPRING
CYPRESS, L.P., a Texas limited partnership “Original Borrower”), STEVEN
D. ALVIS and JAY K. SEARS
(collectively, “Original
Borrower Principal”), MB CYPRESS CYFAIR LIMITED PARTNERSHIP, an
Illinois limited partnership (“Assumptor”), MINTO BUILDERS (FLORIDA), INC., a Florida
corporation (“New
Borrower Principal”), and WELLS
FARGO BANK, N.A., as Trustee for the Registered Holders of J.P.
Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3 (“Noteholder”).


 


RECITALS:


 


A.                      Original Borrower executed and delivered to the order
of JPMorgan Chase Bank, N.A., a national banking association (“Lender”), a certain
Fixed Rate Note dated November 23, 2004 (together with all addenda,
modifications, amendments, riders, exhibits and supplements thereto, the “Note”), in the stated principal amount of
$6,125,000.00, which Note evidences a loan (the “Loan”) made by Lender to Original
Borrower. To secure the repayment of the Note, Original Borrower, among other
things, executed and delivered a Deed of Trust and Security Agreement executed
by Original Borrower to Kim Sobieski, as trustee, for the benefit of Lender,


 


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as beneficiary,
dated as of November 23, 2004, recorded in the Official Records of the County
Clerk of Harris County, Texas, as File Number Y082845, in Volume 595, Book 99,
Page 1535 (together with all addenda, modifications, amendments, riders,
exhibits and supplements thereto, the “Security Instrument”), that grants a lien on
certain property described on Exhibit A attached hereto and incorporated
herein by reference and more particularly described in the Security Instrument
(the “Property”).
Original Borrower is liable for the payment and performance of all of Original
Borrower’s obligations under the Note, the Security Instrument and all those
other documents listed on Exhibit B attached hereto together with all
addenda, riders, exhibits and supplements thereto all of which are incorporated
herein by reference as though fully set forth herein (the Note, the Security
Instrument and such other documents and instruments are hereinafter referred to
as the “Loan Documents”).


 


B.                        Each of the Loan Documents has been duly
assigned or endorsed to Noteholder.


 


C.                        Noteholder, as the holder of the Note and
beneficiary under the Security Instrument, has been asked to consent to the transfer
of the Property to Assumptor (the “Transfer”) and the assumption by Assumptor
and New Borrower Principal of the obligations of Original Borrower and Original
Borrower Principal, respectively, under the Loan Documents (the “Assumption”).


 


D.                       Noteholder has agreed to consent to the
Transfer and the Assumption subject to the terms and conditions stated below.


 


E.                         Section 3.08 of that certain Pooling and
Servicing Agreement dated as of December 1, 2004 (the “PSA”), authorizes Midland Loan Services, Inc.,
a Delaware corporation (“Master
Servicer”), as Master Servicer under the PSA, on behalf of
Noteholder, under certain terms and conditions to waive the due on sale clause
and facilitate the Transfer and the Assumption, and Master Servicer has elected
to do so on the terms and conditions set forth in this Agreement. Master
Servicer’s execution and delivery of this Agreement is binding upon Noteholder
pursuant to the PSA.


 


AGREEMENT:


 


In consideration of the foregoing and the mutual covenants and promises
set forth in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Noteholder, Original
Borrower, Original Borrower Principal, Assumptor and New Borrower Principal
agree as follows:


 


1.                        Incorporation of Recitals. The foregoing recitals are incorporated
herein as a substantive, contractual part of this Agreement.


 


2.                        Assumption of Obligation. Assumptor agrees to and does hereby
assume as of the origination date of the Loan, all of the payment and
performance obligations of Original Borrower set forth in the Note, the
Security Instrument and the other Loan Documents in accordance with their
respective terms and conditions, as the same may be modified by this Agreement
including, without limitation, payment of all sums due and payable under the
Note. Assumptor further agrees to abide by and be bound by all of the terms of
the Loan Documents, all as though each of the Loan Documents had been made,
executed and delivered by Assumptor.


 


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The provisions of
the Loan Documents are incorporated herein by reference as if fully set forth
herein. Assumptor acknowledges and agrees that any reference to Original
Borrower in the Loan Documents shall be deemed to refer to Assumptor. Assumptor
hereby adopts, ratifies and confirms as of the date hereof all of the
representations, warranties and covenants of Original Borrower contained in the
Loan Documents in connection with the Loan (including, but not limited to, the
warranty of title set forth in, and the other terms and provisions of, Section
5.2 of the Security Instrument) as if Assumptor was Original Borrower named in
the Loan Documents, and, without limitation of the foregoing, Assumptor hereby
represents, warrants, and covenants that Assumptor has good, indefeasible and
insurable fee simple title to the real property comprising part of the Property
and good and indefeasible title to the balance of the Property, free and clear
of all liens whatsoever except the Permitted Exceptions (as defined in the
Security Instrument), such other liens as are permitted pursuant to the Loan
Documents and the liens created by the Loan Documents.


 


3.                        Original Borrower’s Acknowledgments,
Representations and Warranties. Original Borrower acknowledges, represents and
warrants to Noteholder as of the date of this Agreement that:


 


(a)             The Note has an unpaid principal balance as of the
date of this Agreement, of $5,672,816.00 and prior to default bears interest at
the rate of 4.83% per annum, subject to adjustment as, and to the extent, set
forth in the Note. There are presently the following balances in the indicated
reserve accounts (each of the following terms for the individual reserve
accounts are defined in the Escrow Agreement, as defined on Exhibit B) maintained by Noteholder in connection
with the Loan: (i) $104,954.92 in the Tax and Insurance Funds reserve account,
(ii) $0.00 in the TI & LC Funds reserve account, (iii) $0.00 in the
On-going Replacement Reserve, (iv) $0.00 in the Tenant Reserve Funds reserve
account, and (v) $0.00 in the Cold Stone Creamery reserve account.
Contemporaneously herewith, Original Borrower has transferred and assigned to
Assumptor all right, title and interest of Original Borrower in and to such
reserve accounts.


 


(b)            The Note requires that monthly payments of principal
and interest in the amount of $47,895.44 be made on or before the first day of
each month continuing to December 1, 2014, whereupon the entire outstanding
balance of the Loan shall be immediately due and payable, if not sooner
accelerated or paid.


 


(c)             The Security Instrument is a valid first lien on the
Property for the full unpaid principal amount of the Loan and all other amounts
as stated in the Loan Documents.


 


(d)            There are no defenses, offsets or counterclaims by
Original Borrower to the Note, the Security Instrument or the other Loan
Documents.


 


(e)             There are no defaults by Original Borrower under the
provisions of the Note, the Security Instrument or the other Loan Documents,
nor, to the best of Original Borrower’s knowledge, are there any conditions
which with the giving of notice or the passage of time or both may constitute a
default by Original Borrower under the provisions of the Note, the Security
Instrument or the other Loan Documents.


 


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(f)               To the best of
Original Borrower’s knowledge, all provisions of the Note, the Security
Instrument and the other Loan Documents are valid, in full force and effect,
and enforceable in accordance with their terms.


 


(g)            There are no
subordinate liens of any kind covering or relating to the Property, nor are
there any mechanics’ liens or liens for unpaid taxes or assessments encumbering
the Property, nor has notice of a lien or notice of intent to file a lien been
received by Original Borrower.


 


Original Borrower understands and intends that Noteholder and Assumptor
will rely upon the acknowledgments, representations and warranties contained
herein in entering into this Agreement.


 


4.                        Assumptor’s and
New Borrower Principal’s Representations and Warranties. Assumptor and
New Borrower Principal jointly and severally represent and warrant to
Noteholder as of the date of this Agreement that neither Assumptor nor New
Borrower Principal has any knowledge that any of the representations made by
Original Borrower in Section 3 above are not true and correct. Assumptor and
New Borrower Principal understand and intend that Noteholder will rely on the
representations and warranties contained herein.


 


5.                        Consent to
Transfer and Assumption. Noteholder hereby consents to the Transfer
and to the Assumption, subject to the terms and conditions set forth in this
Agreement Noteholder’s consent to the Transfer of the Property to Assumptor and
Noteholder’s consent to the Assumption are not intended to be and shall not be
construed as a consent to any subsequent transfer or assumption which requires
Noteholder’s consent pursuant to the terms of the Loan Documents.


 


6.                        Assumption by
New Borrower Principal of Liability for the Exceptions to Non-Recourse. New Borrower
Principal hereby adopts, ratifies and confirms all of the representations,
warranties and covenants of Original Borrower Principal under the Loan
Documents as if New Borrower Principal were the Original Borrower Principal
named therein, and jointly and severally assumes all liability of Original
Borrower Principal under the Loan Documents as of the origination date of the
Loan, including, without limitation, including, without limitation, the Environmental
Indemnity Agreement, the Guaranty, and Article 11 of the Security Instrument.
Reference in any Loan Document to Original Borrower Principal henceforth shall
be deemed to refer to New Borrower Principal.


 


7.                        Release of
Original Borrower and Original Borrower Principal. In reliance on
Original Borrower’s and Assumptor’s acknowledgments, representations and
warranties in this Agreement and in consideration for the releases contained in
Section 12 of this Agreement, Noteholder releases Original Borrower and
Original Borrower Principal from their respective obligations under the Loan
Documents, provided that neither
Original Borrower nor Original Borrower Principal is released from any
liability pursuant to this Agreement or any of the Loan Documents, including,
without limitation, Section 11 of the Security Instrument, for any liability
that relates to the period prior to the date hereof regardless of when any
environmental hazard or other condition giving rise to any such liability
thereunder is discovered. Nothing contained herein shall be deemed to impair
the right of Noteholder to name Original Borrower, for


 


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purposes of extinguishing Original Borrower’s interest in the Property,
as a party defendant in any action or suit for judicial foreclosure and sale
under the Security Instrument or for purposes of appointment of a receiver for
the Property, or for purposes of enforcement of the assignment of leases and
rents set forth in the Security Instrument.


 


8.                        No Impairment of
Lien. Nothing set forth herein shall affect the priority or extent of the
lien of the Security Instrument or any of the other Loan Documents, nor, except
as expressly set forth herein, release or change the liability of any party who
may now be or after the date of this Agreement may become liable, primarily or
secondarily, under the Loan Documents. Except as expressly modified hereby, the
Note, the Security Instrument and the other Loan Documents remain unchanged,
are hereby ratified and reaffirmed in all respects and shall remain in full
force and effect, and this Agreement shall have no effect on the priority or
validity of the liens, operation and effect of the Security Instrument and the
other Loan Documents, all of which are incorporated herein by reference.
Nothing herein shall be construed to constitute a novation of the Loan or of
any of the Loan Documents.


 


9.                        Costs. Original
Borrower agrees to pay all fees and costs (including reasonable attorneys’
fees) incurred by Noteholder in connection with Noteholder’s consent to and
approval of the Transfer of the Property and the assumption fee equal to 1.0%
of the outstanding principal balance of the Loan which is required to be paid
by Original Borrower to Noteholder in consideration of the consent to the
Transfer and to the Assumption.


 


10.                      Financial
Information. Assumptor and New Borrower Principal represent and
warrant to Noteholder that all financial information and information regarding
the management capability of Assumptor and New Borrower Principal provided to
Noteholder was true and correct as of the date provided to Noteholder and
remains materially true and correct as of the date of this Agreement.


 


11.                      Addresses. From and after
the date hereof, the addresses for notice for Assumptor, New Borrower Principal
and Noteholder hereunder and under the Loan Documents are as follows:


 


Assumptor:


 


MB Cypress CyFair Limited Partnership 

2901 Butterfield Road 

Oak Brook, Illinois 60523

Attn: Lori Foust


 


New Borrower Principal:


 


Minto Builders (Florida), Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attn: Lori Foust


 


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Noteholder:


 


Wells Fargo Bank, N.A., as Trustee for the
Registered

Holders of J.P. Morgan Chase Commercial Mortgage

Securities Corp., Commercial Mortgage Pass-Through

Certificates, Series 2004-C3

c/o Midland Loan Services, Inc.

10851 Mastin, Suite 300

Overland Park, Kansas 66210

Attn: MLS Loan Number 03-0244355


 


12.                      Complete Release. Assumptor,
Original Borrower, Original Borrower Principal and New Borrower Principal
hereby jointly and severally, unconditionally and irrevocably release and
forever discharge Lender, Noteholder and Master Servicer and their respective
successors, assigns, agents, directors, officers, employees and attorneys, and
each current or substitute trustee, if any, under the Security Instrument
(collectively, “Indemnitees”)
from all Claims (as defined below). Further, each of Original Borrower and
Original Borrower Principal hereby covenants and agrees that it will not take
or assert, and will not request or cause any other person or entity to take or
assert, any action, claim or allegation in contradiction of, or inconsistent
with, the following statement: all provisions of the Note, the Security
Instrument and the other Loan Documents are valid, in full force and effect,
and enforceable in accordance with their terms. Original Borrower and Original
Borrower Principal jointly and severally agree to indemnify Indemnitees and
defend and hold them harmless from any and all claims, losses, causes of
action, costs and expenses of every kind or character incurred by or asserted
against Indemnitees in connection with (A) any Claims, the Transfer, or the
breach by Original Borrower or Original Borrower Principal of the Loan
Documents, as amended herein, but only to the extent that such claims, losses,
causes of action, costs and expenses arise out of or are in any way connected
with or result from the acts, actions or omissions of Original Borrower or Original
Borrower Principal, or (B) any actions or conduct taken or caused to be taken
by Original Borrower, Original Borrower Principal, or any person or entity
claiming by, through, under, or on behalf of Original Borrower or Original
Borrower Principal which are in contradiction of, inconsistent with, or in
breach of the terms and provisions of this Section 12 (including, without
limitation, the release and discharge set forth in this Section 12). Assumptor
and New Borrower Principal jointly and severally agree to indemnify
Indemnitees, and defend and hold them harmless from any and all claims, losses,
causes of action, costs and expenses of every kind or character incurred by or
asserted against Indemnitees in connection with Claims, the Transfer or the breach
by Assumptor or New Borrower Principal of the Loan Documents, as amended
herein, but only to the extent that such claims, losses, causes of action,
costs and expenses arise out of or are in any way connected with or result from
the acts, actions or omissions of Assumptor or New Borrower Principal.


 


As used in this Agreement, the term “Claims” shall mean any and all possible claims,
demands, actions, fees, costs, expenses and liabilities whatsoever, known or
unknown, at law or in equity, originating in whole or in part, on or before the
date of this Agreement, which Original Borrower, Original Borrower Principal,
or any of their respective partners, limited partners, members, officers,
directors, shareholders, agents or employees may now or hereafter have against
Indemnitees, and irrespective of whether any such Claims arise out of contract,
tort,


 


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violation of laws,
regulations or otherwise, arising out of or relating to the Loan or any of the
Loan Documents including, without limitation, any contracting for, charging,
taking, reserving, collecting or receiving interest in excess of the highest
lawful rate applicable thereto and any loss, cost or damage of any kind or
character arising out of or in any way connected with or in any way resulting
from the acts, actions or omissions of Indemnitees, including any requirement
that the Loan Documents be modified as a condition to the transactions
contemplated by this Agreement, any charging, collecting or contracting for
prepayment premiums, transfer fees or assumption fees, any breach of fiduciary
commitment, undue influence, duress, economic coercion, violation of any
federal or state securities or Blue Sky laws or regulations, conflict of
interest, bad faith, malpractice, violations of the Racketeer Influenced and
Corrupt Organizations Act, intentional or negligent infliction of mental or
emotional distress, tortious interference with contractual relations, tortious
interference with corporate governance or prospective business advance, breach
of contract, deceptive trade practices, libel, slander, conspiracy or any claim
for wrongfully accelerating the Note or wrongfully attempting to foreclose on
any collateral relating to the Note, but in each case only to the extent
permitted by applicable law. Original Borrower, Assumptor, Original Borrower
Principal and New Borrower Principal agree that Noteholder has no fiduciary or
similar obligations to any of such parties and that their relationship is
strictly that of creditor and debtor. This release is accepted by Noteholder
pursuant to this Agreement and shall not be construed as an admission of
liability on the part of any party hereto. Original Borrower, Original Borrower
Principal, Assumptor and New Borrower Principal hereby represent and warrant
that they are the current legal and beneficial owners of all Claims, if any,
released hereby and have not assigned, pledged or contracted to assign or
pledge any such Claims to any other person.


 


13.                      Usury. It is expressly stipulated and agreed to be the
intent of all of the parties hereto at all times to comply with the applicable
law governing the maximum rate or amount of interest payable on or in
connection with the Note and the Loan (or applicable United States federal law
to the extent that it permits Noteholder to contract for, charge, take, reserve
or receive a greater amount of interest payable on or in connection with the
Note and the Loan than under applicable law). If the applicable law is ever
judicially interpreted so as to render usurious any amount called for under the
Note or under the Security Instrument, this Agreement or any other Loan
Document, or contracted for, charged, taken, reserved or received with respect
to the Loan, or if Original Borrower or Assumptor have paid any interest in
excess of that permitted by law, then it is the express intent of all of the
parties that all excess amounts theretofore collected by Noteholder or Lender
be credited to the then outstanding principal balance of the Note (or, if the
Note has been or would thereby be paid in full, any surplus refunded to
Original Borrower or Assumptor), and the provisions of the Note, this
Agreement, the Security Instrument and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with such applicable law but so as to permit the recovery of the fullest
amount otherwise called for hereunder and thereunder. The right to accelerate
the maturity of the Note does not include the right to accelerate any interest,
which has not otherwise accrued on the date of such acceleration, and
Noteholder does not intend to collect any unearned interest in the event of
acceleration. All sums paid or agreed to be paid to Lender or Noteholder for
the use, forbearance or detention of the indebtedness evidenced by the Note or
other Loan Documents shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread through the full term of such
indebtedness until payment in full so that the rate or amount of


 


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interest on
account of such indebtedness does not exceed the applicable usury ceiling. Notwithstanding
any provision contained in the Note, the Security Instrument, this Agreement or
in any of the other Loan Documents, as amended herein, that permits the
compounding of interest including, without limitation, any provision by which
any of the accrued interest is added to the principal amount of the Note, the
total amount of interest that Original Borrower or Assumptor is obligated to
pay and Noteholder is entitled to receive with respect to the Loan shall not
exceed the amount calculated on a simple (i.e., non-compounded) interest basis
at the maximum rate allowed by applicable law on principal amounts actually
advanced to or for the account of Original Borrower or Assumptor, including all
current and prior advances and any advances made pursuant to the Security
Instrument, this Agreement or the other Loan Documents, as amended herein
(including, but not limited to, the payment of taxes, insurance premiums and
the like). The provisions of the Note and the other Loan Documents limiting the
amount of interest which may be contracted for, charged or received on the
indebtedness evidenced thereby and dealing with the rights and duties of the
parties with respect to the charging or receiving of interest in excess of the
maximum rate, are hereby incorporated in this Agreement by reference as though
fully set forth herein. To the extent permitted by law, Original Borrower,
Assumptor, Original Borrower Principal and New Borrower Principal hereby waive
and release all claims and defenses based upon usury in connection with the
execution and delivery of the Note and the other Loan Documents and the
borrowing of the funds represented by the Loan.


 


14.                      Further Assurances. Original Borrower, Original Borrower
Principal, Assumptor and New Borrower Principal agree to perform such other and
further acts, and to execute such additional documents, agreements, notices or
financing statements, as Noteholder deems reasonably necessary or desirable
from time to time to create, preserve, continue, perfect, validate or carry out
any of Noteholder’s rights under this Agreement and/or the other Loan
Documents.


 


15.                      Miscellaneous.


 


(a)             This Agreement shall be construed according to and
governed by the laws of the jurisdiction(s), which are specified by the
Security Instrument. In the event the Security Instrument does not specifically
state what jurisdiction’s laws govern, this Agreement shall be construed
according to and governed by the laws in which the Property are located without
regard to its conflicts of law principles.


 


(b)            If any provision of this Agreement is adjudicated to
be invalid, illegal or unenforceable, in whole or in part, it will be deemed
omitted to that extent and all other provisions of this Agreement will remain
in full force and effect.


 


(c)             No change or modification of this Agreement shall be
valid unless the same is in writing and signed by all parties hereto.


 


(d)            The captions contained in this Agreement are for
convenience of reference only and in no event define, describe or limit the
scope or intent of this Agreement or any of the provisions or terms hereof.


 


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(e)             This Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, legal representatives,
successors and permitted assigns.


 


(f)               This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall
constitute one instrument, but in making proof hereof it shall only be
necessary to produce one such counterpart.


 


(g)            THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS AMENDED, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


(h)            THIS AGREEMENT CONTAINS INDEMNIFICATION PROVISIONS AS
SET FORTH IN SECTION 12 HEREOF.


 


16.                      Reservation of Rights. Nothing contained in this Agreement
shall prevent or in any way diminish or interfere with any rights or remedies
including, without limitation, the right to contribution, which Noteholder may
have against Original Borrower, Original Borrower Principal, Assumptor, New
Borrower Principal or any other party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (codified at Title 42, U.S.C.
Section 9601, et. seq.), as it may be amended from time to time, any
successor statute thereto or any other applicable federal, state or local laws,
all such rights being hereby expressly reserved.


 


17.                      Compliance with Anti-Terrorism, Embargo,
Sanctions and Anti-Money Laundering Laws. Assumptor shall comply with all Requirements of Law
relating to money laundering, anti-terrorism, trade embargos and economic
sanctions now or hereafter in effect. Upon Noteholder’s request from time to
time during the term of the Loan, Assumptor shall certify in writing to
Noteholder that Assumptor’s representations, warranties and obligations under
this Section 17 remain true and correct and have not been breached. Assumptor
shall immediately notify Noteholder in writing if any of such representations,
warranties or covenants are no longer true or have been breached or if
Assumptor has reasonable basis to believe that they may no longer be true or
have been breached. In connection with such an event, Assumptor shall comply
with all Requirements of Law and directives of Governmental Authorities and, at
Noteholder’s request, provide to Noteholder copies of all notices, reports and
other communications exchanged with or received from Governmental Authorities
relating to such an event. Assumptor shall also reimburse Noteholder any
expense incurred by Noteholder in evaluating the effect of such an event on the
Loan and Noteholder’s interest in the collateral for the Loan, in obtaining any
necessary license from Governmental Authorities as may be necessary for
Noteholder to enforce its rights under the Loan Documents, and in complying
with all Requirements of Law applicable to Noteholder as the result of the
existence of such an event and for any penalties or fines imposed upon
Noteholder as a result thereof. Further, Assumptor shall immediately notify
Noteholder in writing if any future tenant of the Property (i) is identified on
the OFAC List, or (ii) is a Person with whom a citizen of the United States is
prohibited to engage in transactions by any trade embargo, economic sanction or
other prohibition of United


 


9

















 


States law,
regulation or Executive Order of the President of the United States. For
purposes of this Agreement, the following definitions shall apply:


 


“Governmental Authority” means any nation or government, any state
or other political subdivision thereof, and any Person exercising executive,
legislative, judicial or administrative functions of or pertaining to such
government.


 


“OFAC List” means the
list of specially designated nationals and blocked Persons subject to financial
sanctions that is maintained by the U.S. Treasury Department, Office of Foreign
Assets Control and any other similar list maintained by the U.S. Treasury
Department, Office of Foreign Assets Control pursuant to any Requirements of
Law including, without limitation, trade embargo, economic sanctions or other
prohibitions imposed by Executive Order of the President of the United States.
The OFAC List currently is accessible through the internet website
www.treas.gov/ofac/tl lsdn.pdf.


 


“Requirements of Law”
means (a) the organizational documents of an entity, and (b) any law,
regulation, ordinance, code, decree, treaty, ruling or determination of an
arbitrator, court or other Governmental Authority or any Executive Order issued
by the President of the United States, in each case applicable to or binding
upon such Person or to which such Person any of its property or the conduct of
its business is subject including, without limitation, laws, ordinances and
regulations pertaining to the zoning, occupancy and subdivision of real property.


 


“Person” means an
individual, partnership, limited partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.


 


18.                      Additional Permitted Transfers. Notwithstanding any terms or provisions
of the Loan Documents to the contrary (including, without limitation, Article 8
of the Security Instrument), so long as MB Cypress Cyfair Limited Partnership,
an Illinois limited partnership, an Illinois limited partnership, is the sole
Borrower, the following Transfers (each, a “Permitted Transfer” and, collectively, the “Permitted Transfers”) will be permitted without Noteholder’s
consent, subject to the terms and conditions set forth in this Section 18:


 


(a)                       MB REIT Transfers. Subject to the terms and conditions of
subparagraphs (1), (2), and (3), below, the following series of transactions
(each, an “MB REIT
Transfer”) to be consummated between the date of this Agreement
and December 31, 2006, that will lead to the full capitalization of Minto
Builders (Florida), Inc., a Florida corporation and a REIT (“MB REIT”):


 


(i)                       To the extent
not completed prior to the date of this Agreement, issuance to individuals of
125 shares of non-voting Series B Preferred Stock in MB REIT to satisfy certain
REIT regulations requiring MB REIT to have at least 100 shareholders; such
Series B Preferred Stock will be issued at a price of $1,000 per share with a
12.5% preferred return and shall have no voting rights;


 


(ii)                    Issuance to
Inland Western Real Estate Trust, Inc., a Maryland corporation and a public
REIT (“Inland Western”),
of up to $60,000,000.00 in additional Class C Preferred Stock in MB REIT and
the subsequent redemption thereof by MB


 


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REIT; such Class C
Preferred Stock will earn a preferred return of 7% and shall have no voting
rights; and


 


(iii)                 Issuance to
Inland American Real Estate Trust, Inc., a Maryland corporation and a public
REIT (“Inland American”),
of up to $1,128,000,000.00 in additional Special Voting Stock in MB REIT and
the subsequent conversion thereof to Common Stock so that after such issuance
and conversion Inland American will own 80% of the value of the stock of MB REIT
and approximately 97.5% of the Common Stock of MB REIT, with Minto (Delaware),
LLC, a Delaware limited liability company, owning the remaining approximately
2.5% of the Common Stock. Such Special Voting Stock shall be convertible to
Common Stock and entitled to 0.99 votes per share and a liquidation preference
of $0.01 per share. The Common Stock in MB REIT shall be entitled to one vote
per share.


 


provided, that, with respect to any of the
transactions described in this Section 18(a):


 


(1)                    With respect to
any MB REIT Transfer resulting in Inland American becoming the owner of greater
than forty-nine percent (49%) of the direct or indirect ownership interests in
Borrower or MB REIT, Borrower shall deliver to Noteholder and Noteholder’s
counsel:  (A) written notice of such MB
REIT Transfer at least fifteen (15) business days prior to the consummation
thereof; which notice requirement may be satisfied by Borrower giving written
notice to Noteholder, at least fifteen (15) business days prior to the commencement
of such period, of the thirty (30) day period in which Borrower anticipates
such MB REIT Transfer will occur (e.g., if Borrower anticipates that such
transaction will occur during the period from July 1 to July 30, 2006, Borrower
shall give written notice thereof to Noteholder on or before June 12, 2006),
and, if such MB REIT Transfer does not occur during the thirty-day period
identified in any such notice, then Borrower shall give a subsequent written
notice to Noteholder at least fifteen (15) business days prior to the
commencement of a later thirty-day period in which Borrower then anticipates
such MB REIT Transfer will occur; in all events, Borrower shall give written
notice to Noteholder of such MB REIT Transfer within ten (10) business days
after the consummation thereof; and (B) at least ten (10) business days prior
to such MB REIT Transfer, a non-consolidation opinion in form and substance,
and issued by a law firm, satisfactory to Noteholder and its counsel in their
sole discretion,  it being acknowledged
that such non-consolidation opinion may be delivered to Noteholder and its
counsel at any time during the ninety (90) day period prior to such MB REIT
Transfer and Borrower shall promptly after the consummation of such MB REIT
Transfer cause to be delivered to Noteholder a re-dated original of such
non-consolidation opinion, dated as of the date of such consummation.


 


(2)                    Within ten (10)
business days after the end of each calendar quarter (commencing with the
calendar quarter ending June 30, 2006), Borrower shall give Noteholder written
notice of any MB REIT Transfer(s) that has occurred during said calendar
quarter, including the MB REIT Transfer described in subparagraph (1), above;
and


 


11

















 


(3)                    Except as
contemplated in subparagraph (1), above, no MB REIT Transfer shall be a “Permitted
Transfer” under this Section 18 if it results in either (A) any Person who does
not now, as of the date of this Agreement, own greater than forty-nine percent
(49%) of the ownership interests in Borrower or MB REIT becoming the owner (by
itself or together with its Affiliates) of greater than forty-nine percent
(49%) of the ownership interests in Borrower or MB REIT, or (B) any Person who
does not now, as of the date of this Agreement, Control Borrower or MB REIT,
obtaining Control (by itself or together with its Affiliates) of Borrower or MB
REIT (as such term “Control” is hereinafter defined). Any transaction described
in this subparagraph (3) shall be subject to the applicable terms and
conditions of the Loan Documents, including, without limitation, Article 8 of
the Security Instrument, and, without limitation, unless earlier notice is
required under any such terms and conditions, Borrower shall give Noteholder at
least fifteen (15) business days advance written notice of any transaction
described in this subparagraph (3). “Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or other agreement or otherwise; “Controlling” has a correlative meaning.


 


(b)                   Inland American
Transfers. The following Transfers of stock in Inland
American:


 


(i)                       Transfer of
stock in Inland American to Inland Western, Inland Retail Real Estate Trust,
Inc., a Maryland corporation, Inland Real Estate Corporation, a Maryland
corporation, or Inland Real Estate Investment Corporation, a Delaware
corporation, in connection with a concurrent merger of Inland American with or
into such entity, so long as the applicable entity is a REIT that is a publicly
traded corporation and related to Inland American, it being acknowledged that
the term “publicly traded” (as used in this subparagraph (i)) shall not be
deemed to require that the corporation’s stock be traded on a public stock
exchange; and


 


(ii)                    Transfers of
stock in Inland American so long as all such Transfers, in the aggregate, do
not result in (i) any Person who does not now, as of the date of this
Agreement, own, directly or indirectly, greater than forty-nine percent (49%)
of the stock in Inland American, becoming the owner (by itself or together with
its Affiliates), directly or indirectly, of greater than forty-nine percent
(49%) of the stock in Inland American, or (ii) any Person who does not now, as
of the date of this Agreement, Control Inland American, obtaining Control (by
itself or together with its Affiliates) of Inland American.


 


Notwithstanding anything to the contrary contained in this Agreement or
in the Loan Documents, (i) this Agreement shall not modify or amend, or
constitute a waiver of, the terms and conditions of Section 8.7 of the Security
Instrument, and (ii) no Transfer shall be permitted without Noteholder’s prior
written consent, subject to satisfaction of the requirements and conditions of
Section 8.3(c) or the Security Instrument, that would cause or result in Inland
American, or its successor following a permitted merger pursuant to
subparagraph (b)(i), above,


 


12

















 


(i) not owning at
least fifty-one percent (51%) of the Common Stock in MB REIT, or (ii) not
Controlling Borrower and MB REIT.


 


It is acknowledged and agreed that permitting
the Permitted Transfers (as defined in this Section 18) without Noteholder’s
consent as set forth in this Section 18 is a limited and conditional waiver of
certain restrictions on Transfers set forth in the Loan Documents that may
otherwise require such consent, and such waiver shall be effective only so long
as: (i) the conditions set forth in this Section 18 with respect to each such
Transfer are performed and satisfied; (ii) neither an Event of Default nor any
event that with the giving of notice or the passage of time would become an
Event of Default has occurred and subsists; and (iii) without limitation of any
other condition, MB Cypress Cyfair Limited Partnership, an Illinois limited
partnership, an Illinois limited partnership, is the sole Borrower. Without
limitation, it is acknowledged and agreed that (a) upon the failure of the
condition described in clause (iii) of the preceding sentence, the waiver set
forth in this Section 18 shall automatically terminate and become null and
void, and any Transfers occurring thereafter shall be subject to the terms and
conditions of the Loan Documents without regard to this Section 18, and (b)
upon the failure of any other condition set forth in this Section 18, and
during the subsistence of any such failure, the waiver set forth in this
Section 18 shall not be effective, and any Transfers occurring while any such
failure subsists shall be subject to the terms and conditions of the Loan
Documents without regard to this Section 18. In no event shall this Section 18
be deemed or construed to modify or amend the Security Agreement or any of the
other Loan Documents.


 


19.                      Amendments to
Loan Documents. Section 8.3(a) of the Security Instrument is hereby
amended by: (i) deleting the phrase “Steven D. Alvis and Jay K. Sears” in
clause (B) of said Section and substituting the phrase “Minto Builders
(Florida), Inc., a Florida corporation” in its place; (ii) deleting the phrase “prior
to the death or legal incapacity of all the Original Principals and is
thereafter assumed by persons who are acceptable to Lender in its sole and
absolute discretion” at the end of said clause (B); and (iii) deleting clause
(C) of said Section in its entirety and substituting the phrase “(C)
intentionally omitted,” in its place.


 


20.                      Noteholder
Confirmation. Noteholder hereby confirms to Assumptor that
the representations and warranties of Original Borrower made in Sections 3(a)
and 3(b) of this Agreement are true and correct. Further, Noteholder hereby
confirms to Assumptor that there are no uncured defaults under the Loan
Documents with respect to the payment of principal and interest. Further,
Noteholder represents and warrants to Assumptor that to its actual knowledge,
no other Event of Default (as defined in the Security Instrument) exists under
the Loan. However, Noteholder is not waiving and does not hereby waive any
existing defaults if any in fact exist and nothing herein is intended to be nor
shall it be construed to be a waiver of any existing defaults, material or
immaterial, which may in fact exist. As used in this paragraph, “actual
knowledge” means the actual state of mind of the person or persons directly
responsible for the processing of Original Borrower’s request for consent to
the Transfer and Assumption and does not include any implied, constructive or
imputed knowledge.


 


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BLANK]


 


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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written, with the intent that this shall be deemed an
instrument under seal.


 


 


	
   

  	
   

  	
  ASSUMPTOR:

  
	
   

  	
   

  	
  

  MB CYPRESS CYFAIR LIMITED

  PARTNERSHIP, an Illinois limited partnership

  
	
   

  	
   

  	
   

  	
   

  
	
  Witnesses:

  	
   

  	
  By:

  	
  MB Cypress CyFair GP,
  L.L.C., a Delaware

  limited liability company, its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ LaVenia Smith

  	
   

  	
   

  	
   

  
	
  Name:

  	
  LaVenia Smith

  	
   

  	
   

  	
  By:

  	
  Minto Builders
  (Florida), Inc., its sole

  
	
   

  	
   

  	
   

  	
   

  	
  member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Deborah A. Camp

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Deborah A. Camp

  	
   

  	
   

  	
  By:

  	
  /s/ Debra A. Palmer

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Debra
  A. Palmer

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  	
   

  
								



 


 


	
   

  	
   

  	
  NEW
  BORROWER PRINCIPAL:

  
	
  

  Witnesses:

  	
   

  	
  

  MINTO BUILDERS (FLORIDA), INC., a
  

  Florida corporation

  
	
  /s/ LaVenia Smith

  	
   

  	
   

  	
   

  
	
  Name:

  	
  LaVenia Smith

  	
   

  	
  By: 

  	
  /s/ Debra A. Palmer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Debra A. Palmer

  	
   

  
	
  Name:

  	
  Deborah A. Camp

  	
   

  	
  Title:

  	
  Assistant Secretary

  	
   

  
	
   

  	
  /s/ Deborah A. Camp

  	
   

  	
   

  



 


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[SIGNATURES CONTINUED FROM THE PREVIOUS PAGE]


 


 


	
   

  	
   

  	
  ORIGINAL
  BORROWER:

  
	
   

  	
   

  	
  

  A-S 46 HWY 290-SPRING CYPRESS, L.P., a

  Texas limited partnership

  
	
  Witnesses:

  	
   

  	
  By: 

  	
  

  A-S 46, L.C., a Texas limited liability

  company, its General Partner

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
  Name:

  	
  Steven D. Alvis

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Member Manager

  



 


 


	
   

  	
   

  	
  ORIGINAL
  BORROWER PRINCIPAL:

  
	
  Witnesses:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  STEVEN
  D. ALVIS

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


	
   

  	
   

  	
   

  
	
  Witnesses:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JAY K.
  SEARS

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


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[SIGNATURES CONTINUED FROM THE PREVIOUS PAGE]


 


 


	
   

  	
   

  	
  NOTEHOLDER:

  
	
   

  	
   

  	
  

  WELLS FARGO BANK, N.A., as
  Trustee under that certain Pooling and Servicing Agreement dated as of
  December 1, 2004 (the “PSA”),
  for the Registered Holders of J.P. Morgan Chase Commercial Mortgage
  Securities Corp.,

  Commercial Mortgage Pass-Through Certificates, Series 2004-C3

  
	
   

  	
   

  	
   

  	
   

  
	
  Witnesses:

  	
   

  	
  By: 

  	
  Midland Loan Services,
  Inc., a Delaware

  
	
   

  	
   

  	
   

  	
  corporation, as Master
  Servicer under the PSA

  
	
  /s/ Dave Wenthold

  	
   

  	
   

  	
  and Attorney-In-Fact

  
	
  Name:

  	
  Dave Wenthold

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Northmarq Capital,
  Inc., as Sub-Servicer

  under the Sub-Servicing Agreement

  
	
  /s/ Jason Lenz

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Jason Lenz

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Karen L. Pribnow

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Karen L. Pribnow

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  EVP