Exhibit 10.66


 


	
  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-K-S 75 NEC SPRING TOWN CENTER, L.P., a
Texas limited partnership (“Original Borrower”), STEVEN
D. ALVIS, JAY K. SEARS, DAVID R. KLEIN and KYLE D. LIPPMAN (collectively, “Original Borrower Principal”),
MB SPRING TOWN CENTER 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
2005-LDP1 (“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 December 20, 2004 (together with all addenda,
modifications, amendments, riders, exhibits and supplements thereto, the “Note”), in the stated
principal amount of $8,200,000.00, 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 December 20, 2004, recorded in the Office of the County Clerk of
Harris County, Texas, under County Clerk’s File No. Y141028 (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 March 1, 2005 (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 $7,628,738.89 and prior
to default bears interest at the rate of 4.87% 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) $131,222.75 in the Tax and Insurance Funds
reserve account, (ii) $45,347.82 in the TI & LC Funds reserve account,
(iii) $0.00 in the On-going Replacement Reserve, (iv) $0.00 in the Tenancy
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 $64,291.13 be made
on or before the first day of each month continuing to January 1, 2015,
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 Spring Town
Center 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 2005-LDP1

c/o Midland Loan Services, Inc.

10851 Mastin, Suite 300

Overland Park, Kansas 66210

Attn: MLS Loan Number 03-0244928


 


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, “Indemnities”) 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


 


7

















 


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
arc 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 Spring Town Center 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
Spring Town Center 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, Jay K. Sears, David R. Klein, and
Kyle D. Lippman” 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
  SPRING TOWN CENTER LIMITED PARTNERSHIP, an Illinois limited partnership

  
	
  Witnesses:

  	
   

  	
  

  By:

  	
  MB Spring Town
  Center GP, L.L.C, a

  
	
   

  	
   

  	
   

  	
  Delaware limited
  liability company, its general 

  
	
  /s/ LaVenia Smith

  	
   

  	
   

  	
  partner

  
	
  Name:

  	
  LaVenia Smith

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Minto Builders
  (Florida), Inc., its sole 

  
	
   

  	
   

  	
   

  	
   

  	
  member

  
	
  Name:

  	
  /s/ Janet Hughes

  	
   

  	
   

  	
   

  
	
  Janet Hughes

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  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/ Janet Hughes

  	
   

  	
  Title:

  	
  Assistant Secretary

  	
   

  
	
  Janet Hughes

  	
   

  	
   

  
							



 


 


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  ORIGINAL
  BORROWER:

  
	
   

  	
   

  	
  

  A-K-S 75 NEC SPRING TOWN CENTER, L.P.,

  a Texas limited partnership

  
	
  Witnesses:

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  A-K-S 75, 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:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  JAY
  K. SEARS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witnesses:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  DAVID
  R. KLEIN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witnesses:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  KYLE
  D. LIPPMAN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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  NOTEHOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WELLS
  FARGO BANK, N.A.,
  as Trustee under that certain Pooling and Servicing Agreement dated as of
  March 1, 2005 (the “PSA”),for the Registered Holders of J.P.
  Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage
  Pass-Through Certificates, Series 2005-LDP1

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Midland Loan
  Services, Inc., a Delaware 

  
	
  Witnesses:

  	
   

  	
   

  	
  corporation, as
  Master Servicer under the PSA 

  
	
   

  	
   

  	
   

  	
  and
  Attorney-In-Fact

  
	
  /s/ Dave
  Wenthold

  	
   

  	
   

  
	
  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