Exhibit 10.68


 


	
  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-K 41 ELDRIDGE-W.
LITTLE YORK,  L.P., a
Texas limited partnership (“Original Borrower”), STEVEN
D. ALVIS and JAY K. SEARS (collectively,
“Original
Borrower Principal), MB HOUSTON
ELDRIDGE LAKES 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 $8,100,000.00, 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 Office of the County Clerk of
Harris County, Texas, under County Clerk’s File No. Y082849 (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 $7,504,380.74 and
prior to default bears interest at the rate of 4.88% 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) $179,772.62 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 Construction Reserve Funds 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 $63,549.09 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 Houston
Eldridge Lakes 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 03-0244356


 


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


 


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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 Houston Eldridge Lakes 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 Houston Eldridge Lakes 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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13

















 


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 HOUSTON ELDRIDGE LAKES LIMITED

  PARTNERSHIP, an Illinois limited partnership

  
	
  Witnesses:

  	
   

  	
  

  By:

  	
  MB Houston
  Eldridge 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:

  	
  /s/ Pamela Hayes

  	
   

  	
   

  	
   

  
	
  Pamela
  Hayes

  	
   

  	
   

  	
  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:

  	
  /s/ Pamela Hayes

  	
   

  	
  Title:

  	
  Assistant Secretary

  	
   

  
	
  Pamela Hayes

  	
   

  	
   

  



 


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[SIGNATURES CONTINUED FROM THE PREVIOUS PAGE]


 


 


	
   

  	
   

  	
  ORIGINAL BORROWER:

  
	
   

  	
   

  	
  

  A-S-K
  41 ELDRIDGE-W. LITTLE YORK, L.P.,
a Texas limited partnership

  
	
  Witnesses:

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  A-S-K 41, 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:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


 


[SIGNATURES CONTINUE ON THE NEXT PAGE]


 





















 


[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

  
	
  

  /s/ Dave Wenthold

  	
   

  	
   

  	
  corporation, as Master Servicer under the PSA

  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