AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”) is made and entered into as of March 22, 2007, by and among Key Hospitality Acquisition Corporation, a Delaware corporation (“ Parent ”), Key Merger Sub, LLC, a Florida limited liability company and a wholly-owned subsidiary of Parent (“ Merger Sub ”), Cay Clubs LLC, a Florida limited liability company (the “ Company ”), and each of the persons listed under the caption “Members” on the signature page hereof, such persons being all of the members of the Company (each a “ Member ” and, collectively, the “ Members ”).

WHEREAS, the Boards of Directors of Parent and Merger Sub and the Board of Directors of the Company have each declared it to be advisable and in the best interests of each company and their respective stockholders and owners that Parent and the Company combine in order to advance their long-term business interests; and

WHEREAS, the Boards of Directors of Parent and Merger Sub and the Board of Directors of the Company have each approved this Agreement and the merger of Merger Sub with and into the Company (the “ Merger ”), in accordance with the Florida Limited Liability Company Act, Chapter 608 (the “ Florida Act ”) and the terms and conditions set forth herein, which Merger will result in, among other things, the Company becoming a wholly owned subsidiary of Parent and the Members becoming stockholders of Parent; and

WHEREAS, for federal income tax purposes, it is intended the Members will not recognize any gain or loss as a result of the Merger based upon Section 351 of the Internal Revenue Code of 1986, as amended (the “ Code ”) and the regulations promulgated thereunder.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1.1    The Merger . At the Effective Time (as defined in Section 1.3), in accordance with the Florida Act and the terms and conditions of this Agreement, Merger Sub shall be merged with and into the Company. From and after the Effective Time, the separate corporate existence of Merger Sub shall cease and the Company, as the surviving entity in the Merger, shall continue its existence under the Florida Act as a wholly owned subsidiary of Parent. The Company as the surviving entity after the Merger is hereinafter sometimes referred to as the “ Surviving Entity .”

1.2    Closing . Unless this Agreement shall have been terminated and the transactions contemplated by this Agreement abandoned pursuant to the provisions of Article VIII, and subject to the satisfaction or waiver, as the case may be, of the conditions set forth in Article VI, the closing of the Merger and other transactions contemplated by this Agreement (the “ Closing ”) shall take place at 10:00 a.m. (Eastern Standard Time) on a date to be mutually agreed upon by the parties (the “ Closing Date ”), which date shall be no later than the second Business Day (as defined below) after all the conditions set forth in Article VI (excluding conditions that, by their nature, cannot be satisfied until the Closing) shall have been satisfied or waived in accordance with the terms of this Agreement, unless another time and/or date is agreed to in writing by the parties. The Closing shall take place at the offices of Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. in New York, New York. For purposes of this Agreement, “ Business Day ” shall mean any day on which banks are permitted to be open in New York, New York.

1.3    Effective Time . Subject to the provisions of this Agreement, on the Closing Date or as soon thereafter as is practicable the parties shall cause the Merger to become effective by executing and filing in accordance with the Florida Act a certificate of merger with the Secretary of State of the State of Florida in substantially the form of Exhibit A attached hereto (the “ Certificate of Merger ”), the date and time of such filing, or such later date and time as may be agreed upon by the parties and specified therein, being hereinafter referred to as the “ Effective Time .”

1.4    Effect of the Merger . At the Effective Time, the Merger shall have the effects set forth in this Agreement and in the Florida Act. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all the assets, properties, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Entity and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Entity.

1.5    Certificate of Formation and Limited Liability Company Agreement . From and after the Effective Time and without further action on the part of the parties, the Certificate of Formation of the Company immediately prior to the Effective Time shall be the Certificate of Formation of the Surviving Entity until amended in accordance with the terms thereof. From and after the Effective Time, the operating agreement set forth on Exhibit B attached hereto shall be the operating agreement of the Surviving Entity until amended in accordance with terms thereof.

1.6    Merger Consideration.

(a)    The aggregate consideration (the “ Merger Consideration ”) to be paid or reserved for issuance by Parent and Merger Sub in the Merger to the Members shall be (1) 50,000,000 fully paid and non-assessable shares of common stock of Parent, par value $0.001 per share (the “ Parent Common Stock ”), and (2) 24,666,666 shares of Parent Common Stock which shall be deposited in and subject to the Escrow created and established pursuant to Section 1.15 provided that all the transactions contemplated by the Optioned Property Provider Agreement (as defined in Section 2.3(a)) have been completed (in any event, such shares to be deposited in the Escrow shall sometimes be referred to as the “ Escrow Shares ”). At the Effective Time, each Company Membership Interest held by a Member immediately prior to the Effective Time shall, by virtue of the Merger, and without any action on the part of such Member, be converted automatically into and become the aggregate of the Merger Consideration and shall be allocated among the Members as set forth on Schedule 1.6(a) (which Schedule shall be amended from time to time to reflect the addition of any new Members to the Company and which final Schedule shall be delivered at least one week prior to Closing). In the event that the transactions contemplated by the Optioned Property Provider Agreement have not closed prior to the Closing Date, the first 12,500,000 shares of Parent Common Stock that would have been Earned Shares will not be issued and the balance of 12,166,666 shares of Parent Common Stock will be issued and deposited in Escrow and constitute part of the Merger Consideration and be subject to return to Parent in accordance with the provisions of Section 1.19.

(b)    From and after the Effective Time, all membership interests of the Company, (together, “ Company Membership Interests ”) (other than any Company Membership Interests to be canceled and retired pursuant to Section 1.7) shall be deemed canceled and shall cease to exist, and each holder of a Company Membership Interest shall cease to have any rights with respect thereto except as set forth herein or under applicable law. As soon as practicable after the Effective Time, Parent shall furnish one or more certificates representing the prescribed number of shares of Parent Common Stock to the Members in accordance with Section 1.14 hereof.

1.7    Cancellation of Membership Interests . Immediately prior to the Effective Time, each Company Membership Interest owned by Parent or any direct or indirect wholly owned Subsidiary (as defined in Section 2.2(a)) of Parent or the Company, shall be canceled and extinguished without any conversion thereof or payment therefor.

1.8    No Further Ownership Rights in Company Membership Interests . All shares of Parent Common Stock issued upon the surrender for exchange of Company Membership Interests in accordance with the terms of this Article I shall be deemed to have been issued in full satisfaction of all rights pertaining to such Company Membership Interests under this Article I. If, after the Effective Time, certificates representing Company Membership Interests are presented to Parent or Surviving Entity for any reason, they shall be canceled and exchanged as provided in this Article I.

1.9    Membership Interests of Merger Sub . Parent’s ownership interest in Merger Sub (the “ Merger Sub Membership Interest ”) shall be converted automatically into a 100% membership interest in the Company.

1.10    Adjustments to Merger Consideration . Notwithstanding any other provision of this Agreement, the Merger Consideration shall be adjusted, at any time and from time to time, to fully reflect the effect of any stock split, reverse split, stock dividend (including, without limitation, any dividend or distribution of securities convertible into Parent Common Stock), reorganization, recapitalization or other like change with respect to Parent Common Stock, occurring prior to the Closing.

1.11    No Fractional Shares . No certificate or scrip representing fractional shares of Parent Common Stock shall be issued as part of the Merger Consideration, and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. Notwithstanding any other provision of this Agreement, each holder of Company Membership Interests who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after taking into account all Company Membership Interests) shall receive from Parent, in lieu thereof, the next highest number of whole shares of Parent Common Stock.

1.12    No Liability . Notwithstanding any other provision of this Agreement, none of the Parent, Merger Sub or the Surviving Entity shall be liable to a Member for any shares of Parent Common Stock or any amount of cash properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.

1.13    Taking of Necessary Action; Further Action . If, at any time and from time to time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest in the Surviving Entity full right, title and possession of all assets, properties, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the Surviving Entity shall be and are fully authorized and directed, in the name of and on behalf of the Company and Merger Sub, to take, or cause to be taken, all such lawful and necessary action as is not inconsistent with this Agreement.

1.14    Letter of Transmittal . As promptly as practicable before or after the Effective Time, Parent (or its designee or exchange agent) will send to each Member as set forth on Schedule 1.6(a) a letter of transmittal for use in enabling Parent to issue one or more certificates representing the prescribed number of shares of Parent Common Stock to which such Member may be entitled as determined in accordance with the provisions of this Agreement. Upon delivery of a duly executed letter of transmittal, such Member will be entitled to receive the portion of the Merger Consideration to which such Member may be entitled (as determined in accordance with the provisions of this Agreement). It is intended that such letter of transmittal will contain provisions requiring each executing Member thereof to (a) acknowledge and agree to be bound by Sections 1.6 (Merger Consideration) and 1.19 (Earn-Out) of this Agreement, (b) make representations and warranties with respect to ownership of the Company Membership Interests owned or held by such Member at that time, and (c) waive all appraisal or dissenter’s rights, in each case, in a form reasonably satisfactory to Parent and as a condition precedent to Parent’s obligation to issue shares of Parent Common Stock to such Member. If any certificate representing shares of Parent Common Stock are to be issued in a name other than that as set forth in Schedule 1.6(a) , it shall be a condition that the person requesting such shall deliver to Parent (or its designee) all documents necessary to evidence and effect such transfer and pay to Parent (or its designee) any transfer or other taxes required by reason of such issuance or establish to the satisfaction of Parent (or its designee) that such tax has been paid or is not applicable.

1.15    Escrow . (a)   To provide for the indemnity obligations set forth in Article VII and to provide for the return of certain shares of Parent Common Stock in the event that certain performance criteria set forth in Section 1.19 are not met, the Escrow Shares shall be deposited in escrow (the “ Escrow ”).  The Escrow Shares shall be subject to the terms and conditions provided herein and the Escrow Agreement to be entered into at the Closing between Parent, F. Dave Clark Irrevocable Trust under Agreement dated August 31, 2004 (the “Clark Trust”), David Schwarz and Continental Stock Transfer and Trust Company (“ Continental ”) (or another escrow agent acceptable to the parties), as Escrow Agent, in substantially the form annexed hereto as Exhibit C (the “ Escrow Agreement ”). 

(b)   Any Escrow Shares that become Forfeited Shares pursuant to the operation of Section 1.19 (due to the failure to satisfy certain performance targets provided therein) shall be removed from the Escrow, shall cease to be Escrowed Shares and shall be returned to Parent, at such time such shares shall be retired by Parent.

(c)   Except as provided in subsection (d) hereof (providing for certain Earned Shares to be set aside to cover the indemnification obligations of the Members as set forth in Article VII), any Escrow Shares that become Earned Shares pursuant to the operation of Section 1.19 (due to the satisfaction of certain performance targets provided therein) shall be released from the Escrow and the Escrow Agent shall deliver the Escrow Shares to the Clark Trust and David Schwarz, pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a).

(d)   Until the date that is twelve (12) months subsequent to the Closing Date, the first 10,000,000 Earned Shares shall be retained in the Escrow and treated as deposited into a separate account for the purpose of setting aside certain Earned Shares for the possible satisfaction of the indemnification obligations of the Clark Trust and David Schwarz pursuant to Article VII (such account shall be referred to herein as the “ Earned Shares Indemnity Escrow Account ”). On the date that is twelve (12) months and one day subsequent to the Closing Date, only 5,000,000 Earned Shares, shall be retained in the Earned Shares Indemnity Escrow Account and the excess Earned Shares shall be released from the Escrow and the Escrow Agent shall deliver such excess Escrow Shares to the Clark Trust and David Schwarz, pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a). On the date that is eighteen (18) months subsequent to the Closing Date, pursuant to Article VII, the indemnity obligation of the Clark Trust and David Schwarz shall terminate under this Agreement and any shares remaining in the Earned Shares Indemnity Escrow Account shall be released from the Escrow and the Escrow Agent shall deliver the Escrow Shares to the Clark Trust and David Schwarz, pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a). Any Earned Shares that are deposited in the Earned Shares Indemnity Escrow Account and are used to satisfy an indemnification obligation pursuant to Article VII shall be removed from the Escrow, shall cease to be Escrowed Shares and shall be returned to Parent, at such time such shares shall be retired by Parent. Notwithstanding anything set forth in this Section 1.15(d), the indemnification provisions of Article VII, and specifically Section 7.4, and the Escrow Agreement shall control any releases of Earned Shares from the Earned Shares Indemnity Escrow Account to satisfy the Article VII indemnification obligations and the general operation and maintenance of such Account.

(e)   Escrow Shares shall be issued and outstanding on the balance sheet of Parent and it is the intention of the parties hereto that such shares be legally outstanding under Delaware law.  All dividends payable on the Escrow Shares shall be distributed to the Clark Trust and David Schwarz pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a). The Clark Trust and David Schwarz shall be entitled to vote the Escrow Shares. .

1.16    Rule 145 . All shares of Parent Common Stock issued pursuant to this Agreement to “affiliates” of the Company listed on Schedule 1.16 will be subject to certain resale restrictions under Rule 145 promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”) and all certificates representing such shares shall bear an appropriate restrictive legend. At the Closing, Parent and the Members shall execute and deliver a Registration Rights Agreement in the form annexed hereto as Exhibit D with respect to registration of the shares of Parent Common Stock under the Securities Act (the “ Registration Rights Agreement ”).

1.17    Member Matters .    Each Member, for itself only, represents and warrants as follows: (i) all Parent Common Stock to be acquired by such Member pursuant to this Agreement will be acquired for his, her or its account and not with a view towards distribution thereof other than, with respect to Members that are entities, transfers to its stockholders, partners or members; (ii) it understands that he, she or it must bear the economic risk of the investment in the Parent Common Stock, which cannot be sold by he, she or it unless it is registered under the Securities Act, or an exemption therefrom is available thereunder; (iii) he, she or it has had both the opportunity to ask questions and receive answers from the officers and directors of Parent and all persons acting on Parent’s behalf concerning the business and operations of Parent and to obtain any additional information to the extent Parent possesses or may possess such information or can acquire it without unreasonable effort or expense necessary to verify the accuracy of such information; and (iv) he, she or it has had access to the Parent SEC Reports filed prior to the date of this Agreement. Each Member acknowledges, as to himself, herself or itself only, that (v) he, she or it is either (A) an “accredited investor” as such term is defined in Rule 501(a) promulgated under the Securities Act, or (B) a person possessing sufficient knowledge and experience in financial and business matters to enable it to evaluate the merits and risks of an investment in Parent; and (vi) he, she or it understands that the certificates representing the Parent Common Stock to be received by he, she or it may bear legends to the effect that the Parent Common Stock may not be transferred except upon compliance with (C) the registration requirements of the Securities Act (or an exemption therefrom), and (D) the provisions of this Agreement. Each Member that is an entity, for itself, represents, warrants and acknowledges, with respect to each holder of its equity interests, to the same effect as the foregoing provisions of this Section 1.17(a).

(b)    Each Member, for himself, herself or itself, represents and warrants that the execution and delivery of this Agreement by such Member does not, and the performance of his, her or its obligations hereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any court, administrative agency, commission, governmental or regulatory authority, domestic or foreign (a “ Governmental Entity ”), except (i) for applicable requirements, if any, of the Securities Act, the Securities Exchange Act of 1934, as amended (“ Exchange Act ”), state securities laws (“ Blue Sky Laws ”), and the rules and regulations thereunder, and (ii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on such Member or the Company or, after the Closing, the Parent, or prevent consummation of the Merger or otherwise prevent the parties hereto from performing their obligations under this Agreement.

1.18    Committee for Purposes of Agreement . Prior to the Closing, the Board of Directors of Parent shall appoint a committee consisting of one of its then members to act on behalf of Parent to take all necessary actions and make all decisions pursuant to the Escrow Agreement regarding Parent’s right to indemnification pursuant to Article VII hereof. In the event of a vacancy in such committee, the Board of Directors of Parent shall appoint as a successor a Person who was a director of Parent prior to the Closing Date or some other Person who would qualify as an “independent” director of Parent and who has not had any relationship with the Company prior to the Closing. Such committee is intended to be the “ Committee ” referred to in Article VII hereof and the Escrow Agreement.

1.19    Return of Escrow Shares for Failure to Meet Performance Measures  

(a)    As promptly as practicable after the end of the twelve (12) month period commencing on January 1, 2007 and ending on December 31, 2007 and the twelve (12) month period commencing on January 1, 2008 and ending on December 31, 2008 (each, a “ Performance Period ”) but in no event later than 90 days thereafter, Parent will deliver or cause to be delivered to the Clark Trust and David Schwarz a statement for the applicable Performance Period (the “ Net Income Statement ”) setting forth the calculation of the net income (after taxes) of the Company for such Performance Period. The Net Income Statement shall be prepared using the audited financial statements of Parent and shall be final and binding on the parties. In order to facilitate the calculation of any Escrow Shares that shall be returned to the Company pursuant to this Section 1.19 and retired by the Company (" Forfeited Shares "), Parent shall account for the Company and its Subsidiaries separately from other assets held and businesses conducted by Parent and its Affiliates during the applicable Performance Period. 

(b)    Escrow Shares shall become Forfeited Shares, in which case such Forfeited Shares shall be taken from the Clark Trust and David Schwarz (pro rata among them in accordance with the distribution of the Merger Consideration as set forth on Schedule 1.6(a)) within fifteen (15) Business Days following the delivery of the applicable Net Income Statement, as provided in Schedule 1.19 hereto.  For the 2007 Performance Period, the difference between 12,333,333 shares less the Forfeited Shares for the 2007 Performance Period shall become Earned Shares pursuant to this Section 1.19.   For the 2008 Performance Period, difference between 12,333,333 shares less the Forfeited Shares for the 2008 Performance Period shall become Earned Shares pursuant to this Section 1.19.

(c)    The Net Income targets set forth on Schedule 1.19 shall be appropriately adjusted pro rata to reflect any stock issuances on a time-weighted basis (for example, an issuance of shares of Parent Common Stock (excluding the Escrow Shares and shares of Parent Common Stock issued upon exercise of options and warrants) on January 1, 2008 representing 5% of the issued and outstanding shares of capital stock of Parent on a fully-diluted basis shall increase targeted Net Income by 5% and an issuance of shares of Parent Common Stock (excluding the Escrow Shares and shares of Parent Common Stock issued upon exercise of options and warrants) on July 1, 2008 representing 5% of the issued and outstanding shares of capital stock of Parent on a fully-diluted basis shall increase targeted Net Income by 2.5%). Similarly, the number of Escrow Shares that become Forfeited Shares under this Section 1.19 and the target stock prices used above shall be appropriately adjusted for any stock splits, stock dividends, reorganizations and similar events.

1.20    Outstanding Company Derivative Securities . The Company shall, and shall cause its Subsidiaries to, arrange that the holders of all outstanding options, warrants and other derivative securities of the Company or any Subsidiary exercise such securities prior to the Effective Time. Such exercise may be made contingent upon the occurrence of the Closing and no Person shall have any right to acquire any ownership or other equity interest in the Company or any Subsidiary (other than Parent at Closing).

Except as set forth in the disclosure schedule provided by the Company to Parent on the date hereof, which (without limiting Parent’s rights under Section 6.3(f) hereof) may be supplemented from time to time after the date hereof should any fact or condition require a change thereto (the “ Company Disclosure Schedule ”), the Company represents and warrants to Parent that the statements contained in this Article II are true, complete and correct as of the date hereof and as of the Closing Date unless such representation or warranty is limited as to a specified date. Unless otherwise noted, all references to the Company and its Subsidiaries in this Article II shall mean the Company on an as reorganized basis as such reorganization is set forth on Schedule 2.2(a) hereto. The Company Disclosure Schedule shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Article II. As used in this Agreement, a “ Company Material Adverse Effect ” (or a Material Adverse Effect relating to the Company) means any change, event or effect that is materially adverse to the business, assets (including, without limitation, intangible assets), financial condition, results of operations of the Company or any of its Subsidiaries, taken as a whole. A “ Project Material Adverse Effect ” shall mean any change, event or effect that is materially adverse to the business, assets (including without limitation intangible assets) financial condition or results of operations of any individual Material Project. Notwithstanding the foregoing, “ Company Material Adverse Effect ” and “ Project Material Adverse Effect ” shall not include events caused by general economic conditions (but shall include economic conditions applicable solely or principally to the hospitality or resort industries or to locations in which the Company and its Subsidiaries operate). The following projects shall constitute “ Material Projects ”: Orlando, Sandpiper, Bayshore, Crested Butte, Boca Chica, Clearwater, Marathon, Las Vegas, Sarasota, Tavernier and Islemorada. “ Optioned Property Provider ” shall mean the entities set forth on Schedule 2.15(c) attached hereto. The following projects shall constitute the “ Optioned Property Projects ”: (a) Bayshore, Clearwater, Orlando, Islemorada, Marathon, Sombrero, Sarasota and Tavernier and (b) if the Closing is consummated for an Optioned Property Provider, the owner of an Optioned Property Provider or any affiliate thereof to acquire any of the following properties then: Sandpiper and/or Crested Butte. If an exception is adequately disclosed in any one section of the Company Disclosure Schedules, it should be deemed disclosed for purposes of each other section of the Company Disclosure Schedules where it is reasonably apparent that such exception is applicable.

2.1    Organization and Qualification . (a) The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Florida, and is qualified to do business in Florida and all other jurisdictions where the character of the properties and other assets owned, leased or operated by it, or the nature of its activities, makes such qualification or licensing necessary, except where the failure to be so qualified, licensed or in good standing, individually or in the aggregate, has not had and would not be expected to have a Company Material Adverse Effect. The Company is in possession of all franchises, grants, authorizations, licenses, permits, easements, consents, certificates, approvals and orders (“ Approvals ”) necessary to own, lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now being conducted, except where the failure to have such Approvals could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Company has delivered to Parent true, complete and correct copies of its Certificate of Formation and operating agreement of the Company (the “ Operating Agreement ”), each as amended to date. The Company is not in default under or in violation of any provision of its Certificate of Formation or Operating Agreement.

(b)    The minute books of the Company contain true, complete and accurate records of all meetings and consents in lieu of meetings of its Board of Directors or Managers, if applicable (and any committees thereof), similar governing bodies and Members (“ Corporate Records ”) since January 1, 2004. Copies of such Corporate Records of the Company have been heretofore made available to Parent or Parent’s counsel.

(c)    The transfer and ownership records of the Company contain true, complete and accurate records of the securities ownership as of the date of such records and the transfers involving the Company Membership Interests and other securities of the Company since January 1, 2004. Copies of such records of the Company have been heretofore made available to Parent or Parent’s counsel.

2.2    Subsidiaries .

(a)    Schedule 2.2(a) sets forth a complete and correct list of each Subsidiary of the Company and of all jurisdictions in which the Company or any such Subsidiary is qualified or licensed to do business. Attached to Schedule 2.2(a) is an organizational chart of the Company and its Subsidiaries. For purposes of this Agreement, the term “ Subsidiary ” means, with respect to any Person, any corporation or other organization, whether incorporated or unincorporated, of which: (i) such Person (or any other Subsidiary of such Person) is a general partner (excluding partnerships, the general partnerships of which held by such Person or Subsidiary of such Person do not have a majority of the voting interest of such partnership); or (ii) at least a majority of the securities or other equity interests having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization, is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries. Except for the Subsidiaries set forth on Schedule 2.2(a) , the Company does not own, directly or indirectly, any ownership, equity, profits or voting interest in any Person or have any agreement or commitment to purchase any such interest, and has not agreed and is not obligated to make nor is bound by any written, oral or other agreement, contract, subcontract, lease, binding understanding, instrument, note, option, warranty, purchase order, license, sublicense, insurance policy, benefit plan, commitment or undertaking of any nature, as of the date hereof or as may hereafter be in effect under which it may become obligated to make, any future investment in or capital contribution to any other entity.

(b)    Each Subsidiary that is a corporation is duly incorporated, validly existing and in good standing under the laws of its state of incorporation (as listed on Schedule 2.2(a) ) and has the requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being or currently planned by the Company to be conducted. Each Subsidiary that is a limited liability company is duly organized or formed, validly existing and in good standing under the laws of its state of organization or formation (as listed on Schedule 2.2(a) ) and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted by the Company. Each Subsidiary is in possession of all Approvals necessary to own, lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now being or currently planned by the Company to be conducted, except where the failure to have such Approvals could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or such Subsidiary. Complete and correct copies of the certificate of incorporation and by-laws (or other comparable governing instruments with different names) (collectively referred to herein as “ Charter Documents ”) of each Subsidiary, as amended and currently in effect, have been heretofore delivered or made available to Parent or Parent’s counsel. No Subsidiary is in violation of any of the provisions of its Charter Documents.

(c)    Each Subsidiary is duly qualified or licensed to do business as a foreign corporation or foreign limited liability company and is in good standing in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except for such failures to be so duly qualified or licensed and in good standing that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or such Subsidiary. Each jurisdiction in which each Subsidiary is so qualified or licensed is listed in Schedule 2.2(a) .

(d)    The minute books of each Subsidiary contain true, complete and accurate records of all meetings and consents in lieu of meetings of its Board of Directors (and any committees thereof), similar governing bodies and stockholders since January 1, 2004. Copies of the Corporate Records of each Subsidiary have been heretofore made available to Parent or Parent’s counsel.

2.3    Capitalization . (a) All of the Company Membership Interests held by the Members of the Company are as reflected on Schedule 1.6(a) .

(b)    As of the date hereof, there are no shares of voting or non-voting capital stock, equity interests, percentage interests or other securities of the Company authorized, issued, reserved for issuance or otherwise outstanding. Schedule 1.6(a) sets forth a true, complete and correct list of all holders of Company Membership Interests indicating the percentage of Company Membership Interests held by each of them. The Company has entered into an agreement with an Optioned Property Provider (the “ Optioned Property Agreement ”). A true, correct and complete copy of the Optioned Property Agreement has been provided to Parent. The Company may amend the Optioned Property Agreement provided that the amended agreement preserves the economic substance of the original agreement prior to the amendment.

(c)    Schedule 1.6(a) also sets forth a true, complete and correct list of the holders of all Company Options and Company Warrants, including: (i) the number and class of Company Membership Interests subject to each such Company Option or Company Warrant; (ii) the date of grant; (iii) the exercise price; (iv) the date of grant, the vesting schedule, as applicable, and expiration date; and (v) any other material terms, including, without limitation, any terms regarding the acceleration of vesting. At Closing, no such derivative securities will be outstanding.

(d)    All outstanding Company Membership Interests are, and all membership interests which may be issued pursuant to the Company Options and Company Warrants, will be, when issued against payment therefore in accordance with the terms thereof, duly authorized, validly issued, fully paid and non-assessable, and not subject to, or issued in violation of, any kind of preemptive, subscription or of similar rights, and were or will be issued in compliance in all material respects with all applicable federal and state securities laws.

(e)    There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock (or options to acquire any such shares), membership interests, percentage interests or other security or equity interests of the Company or to cause the Company or its Subsidiaries to file a registration statement under the Securities Act, or which otherwise relate to the registration of any securities of the Company or its Subsidiaries.

(f)    Except as disclosed in Schedule 1.6(a) , there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into securities having the right to vote) on any matters on which the Company’s members may vote. Except as described in subsection (c) above, there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind (contingent or otherwise) to which the Company is a party or bound obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, membership interests, percentage interests or other voting securities of the Company or obligating the Company to issue, grant, extend or enter into any agreement to issue, grant or extend any security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. The Company is not subject to any obligation or requirement to provide funds for or to make any investment (in the form of a loan or capital contribution) to or in any Person.

(g)    There are no voting trusts, proxies or other agreements, arrangements, commitments or understandings of any character to which the Company or its Subsidiaries or, to the Knowledge of the Company, any of the Company’s members, is a party or by which any of them is bound with respect to the issuance, holding, acquisition, voting or disposition of any shares of capital stock, membership interests, percentage interests or other security or equity interests of the Company.

(h)    The authorized and outstanding capital stock or membership interests of each Subsidiary are set forth in Schedule 2.2(a) hereto. Except as set forth on Schedule 2.2(a) , all of the outstanding shares or membership interests of the Company's wholly owned, direct or indirect, Subsidiaries (and all of the shares or membership interests of non-wholly owned Subsidiaries owned, directly or indirectly, by the Company) are owned, directly or indirectly, by the Company, free and clear of any Liens, charges, pledges, security interests, mortgages, claims, encumbrances, options or rights of first refusal. All of the outstanding shares of capital stock or membership interests of each of such Subsidiaries owned by the Company have been duly authorized and validly issued and are fully paid, non-assessable and free of preemptive or similar rights. Except as contemplated by the Merger, there are no warrants, options, agreements, call rights, conversion rights, exchange rights, preemptive rights or other rights or commitments or understandings relating to the issuance, sale, delivery, pledge, transfer, redemption or other disposition by the Company or its Subsidiaries (including any right of conversion or exchange under any outstanding security or other instrument) of the capital stock or membership interests of any of the Company's Subsidiaries. None of the Subsidiaries owns any stock or membership interests of the Company.

2.4    Authority Relative to this Agreement . The Company has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby (including the Merger). The execution and delivery of this Agreement and the consummation by the Company of the transactions contemplated hereby (including the Merger) have been duly and validly authorized by all necessary action on the part of the Company (including the approval by its Members, subject in all cases to the satisfaction of the terms and conditions of this Agreement, including the conditions set forth in Article VI), and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby pursuant to the Florida Act and the terms and conditions of this Agreement. The Merger and the adoption of this Agreement have been approved by the affirmative vote of all of the holders of the Company Membership Interests in accordance with the Florida Act and the Operating Agreement (the “ Requisite Member Approval ”). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the other parties hereto, constitutes the legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

2.5    No Conflict; Required Filings and Consents . (a) The execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company shall not, (i) conflict with or violate the Company’s Certificate of Formation or Operating Agreement, (ii) conflict with or violate any Legal Requirements (as defined in Section 10.2(a)), (iii) result in any breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or materially impair the Company’s rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company pursuant to, any Material Company Contracts or (iv) result in the triggering, acceleration or increase of any payment to any Person pursuant to any Company Contract, including any “change in control” or similar provision of any Company Contract, except, with respect to clauses (ii), (iii) or (iv), for any such conflicts, violations, breaches, defaults, triggerings, accelerations, increases or other occurrences that would not, individually and in the aggregate, have a Material Adverse Effect on the Company.

(b)    The execution and delivery of this Agreement by the Company does not, and the performance of its obligations hereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except: (i) for the filing of any notifications required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”) and the expiration of the required waiting period thereunder, and (ii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or, after the Closing, the Parent, or prevent consummation of the Merger or otherwise prevent the parties hereto from performing their obligations under this Agreement.

2.6    Compliance with Laws . To the Knowledge of the Company, the Company and its Subsidiaries are in compliance in all respects with all Legal Requirements, except for instances of possible noncompliance that individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect. No written notice, charge, claim, action or assertion has been received by the Company or any of its Subsidiaries (and the Company has no Knowledge of any such written notice delivered to any Person) and, to the Company's Knowledge, no written notice, charge, claim, action has been filed, commenced or threatened against the Company or any of its Subsidiaries or any portion of the Owned Real Property or any of the Optioned Property Projects alleging any violation of any Legal Requirements, except for instances of possible noncompliance that individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect. The parties hereto acknowledge that the Company is or may be in the process of renovating various Owned Real Property and Optioned Property Projects which will require compliance with respect to certain Legal Requirements and the Company and/or the applicable Subsidiary agree to use commercially reasonable best efforts from and after the date hereof to be in compliance with such Legal Requirements, it being agreed by Company and any such Subsidiary that any possible noncompliance with respect to such Legal Requirements as of the Closing shall not individually or in the aggregate be reasonably expected to have a Company Material Adverse Effect or a Project Material Adverse Effect.

2.7    Material Permits .

(a)    To the Knowledge of the Company, the Company and its Subsidiaries as the case may be, have all material federal, state, local and foreign governmental licenses, permits, franchises, approvals and authorizations (the “ Material Permits ”) necessary for the Company, or the Subsidiaries as the case may be, to operate its business as presently conducted as of the date of this Agreement and as presently planned to be conducted except for Material Permits that individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect. The parties hereto acknowledge that the Company is or may be in the process of renovating various Owned Real Property and Optioned Property Projects which will require obtaining and comply with certain Material Permits and the Company and/or the applicable Subsidiary agree to use commercially reasonable best efforts from and after the date hereof to obtain and complying with such Material Permits as and when required by such Legal Requirements, it being agreed by Company and any such Subsidiary that any failure to obtain any such Material Permits as of the Closing shall not individually or in the aggregate be reasonably expected to have a Company Material Adverse Effect or a Project Material Adverse Effect.

(b)    To the Knowledge of the Company, neither the Company nor the Subsidiaries have received any written notice from any governmental agency that they are not in compliance in all material respects with the terms and conditions of the Material Permits.

(c)    Each Material Permit is in full force and effect and neither the Company nor any Subsidiary have received written notification of any action, proceeding, revocation proceeding, amendment procedure, writ, injunction or claim that is pending or, to the Knowledge of the Company, threatened, which seeks to revoke or limit any Material Permit.

(d)    To the Knowledge of the Company, the rights and benefits of each Material Permit will be available to the Company and the Subsidiaries immediately after the Closing on terms substantially identical to those enjoyed by the Company and the Subsidiaries immediately prior to the Closing.

2.8    Financial Statements . (a) The Company has provided to Parent a correct and complete copy of the unaudited combined financial statements (including any related notes thereto) of the Company and its Subsidiaries for the fiscal year ended December 31, 2006 (the “ Unaudited Financial Statements ”) and audited consolidated financial statements (including any related notes thereto) of the Company and its Subsidiaries for the fiscal years ended December 31, 2005 and December 31, 2004 (the “ Audited Financial Statements ”). The Audited Financial Statements are currently being restated and will be delivered to the Parent prior to April 1, 2007. Upon completion of the restatement, the Audited Financial Statements will have been prepared in accordance with generally accepted accounting principles of the United States (“ U.S. GAAP ”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto), and each will fairly present in all material respects the financial position of the Company and its Subsidiaries at the respective dates thereof and the results of their respective operations and cash flows for the periods indicated. The Unaudited Financial Statements comply as to form in all material respects, and were prepared in accordance with, U.S. GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto), and fairly present in all material respects the financial position of the Company and its Subsidiaries at the date thereof and the results of their respective operations and cash flows for the period indicated, except that such statements do not contain notes and are subject to normal adjustments that are not expected to have a Material Adverse Effect on the Company.

(b)    Since January 1, 2004, the books of account, minute books, stock certificate books and stock transfer ledgers and other similar books and records of the Company and its Subsidiaries have been maintained in accordance with good business practice, are complete and correct in all material respects and there have been no material transactions that are required to be set forth therein and which are not so set forth.

(c)    Except as otherwise noted in the Audited Financial Statements or the Unaudited Financial Statements, the accounts and notes receivable of the Company and its Subsidiaries reflected on the balance sheets included in the Audited Financial Statements and the Unaudited Financial Statements (i) arose from bona fide transactions in the ordinary course of business and are payable on ordinary trade terms, (ii) are legal, valid and binding obligations of the respective debtors enforceable in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting creditors’ rights generally, and by general equitable principles, (iii) are not subject to any valid set-off or counterclaim except to the extent set forth in such balance sheet contained therein, and (iv) are not the subject of any actions or proceedings brought by or on behalf of the Company or its Subsidiaries.

2.9    No Undisclosed Liabilities . To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has any liabilities (absolute, accrued, contingent or otherwise) of a nature required to be disclosed on a balance sheet or in the related notes to the Unaudited Financial Statements which are, individually or in the aggregate, material to the business, results of operations or financial condition of the Company, except: (i) liabilities provided for in or otherwise disclosed in the balance sheet included in the Unaudited Financial Statements, and (ii) such liabilities arising in the ordinary course of business and consistent with past practice since December 31, 2006.

2.10    Absence of Certain Changes or Events . Except as set forth on Schedule 2.10 or otherwise set forth in this Agreement, since December 31, 2006, the Company and its Subsidiaries have conducted their respective businesses only in the ordinary course of business consistent with past practice, and there has not been: (i) any action, event or occurrence which has had, or to the Knowledge of the Company could reasonably be expected to result in, a Company Material Adverse Effect; or (ii) any action, event or occurrence which has had a loss or liability to the Company or any of its Subsidiaries in excess of $250,000 or where all such matters aggregate more than $1,000,000; or (iii) any other action, event or occurrence that would have required the consent of Parent pursuant to Section 4.1 had such action, event or occurrence taken place after the execution and delivery of this Agreement.

2.11    Litigation . There are no claims, suits, actions or proceedings pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, before any court, governmental department, commission, agency, instrumentality or authority, or any arbitrator that seeks to restrain or enjoin the consummation of the transactions contemplated by this Agreement or which could reasonably be expected, either singularly or in the aggregate with all such claims, actions or proceedings, to have a Material Adverse Effect on the Company, have a Project Material Adverse Effect or have a Material Adverse Effect on the ability of the parties hereto to consummate the Merger.

2.12    Employee Benefit Plans and Compensation .

(a)    Definitions. With the exception of the definition of “Affiliate” set forth in this Section 2.12(a) below (which definition shall apply only to this Section 2.12(a)), for purposes of this Agreement, the following terms shall have the following respective meanings:

“ Affiliate ” shall mean any other person or entity under common control with the Company within the meaning of Section 414(b), (c), (m) or (o) of the Code and the regulations issued thereunder.

“ Company Employee Plan ” shall mean any plan, program, policy, practice, contract, agreement or other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written, unwritten or otherwise, funded or unfunded, including without limitation, each “employee benefit plan,” within the meaning of Section 3(3) of ERISA which is or has been maintained, contributed to, or required to be contributed to, by the Company or any Affiliate for the benefit of any Employee, or with respect to which the Company or any Affiliate has or may have any liability or obligation and any International Employee Plan.

“ COBRA ” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

“ DOL ” shall mean the United States Department of Labor.

“ Employee ” shall mean any current, former or rehired employee, consultant, officer or director of the Company or any Affiliate.

“ Employee Agreement ” shall mean each employment, consulting or similar agreement, each agreement providing for severance, relocation, repatriation, expatriation or similar agreement (including, without limitation, any offer letter) between the Company or any Affiliate and any Employee.

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“ FMLA ” shall mean the Family Medical Leave Act of 1993, as amended.

“ HIPAA ” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended.

“ International Employee Plan ” shall mean each Company Employee Plan or Employee Agreement that has been adopted or maintained by the Company or any Affiliate, whether formally or informally or with respect to which the Company or any Affiliate will or may have any liability with respect to Employees who perform services outside the United States.

“ IRS ” shall mean the United States Internal Revenue Service.

“ PBGC ” shall mean the United States Pension Benefit Guaranty Corporation.

“ Pension Plan ” shall mean each Company Employee Plan that is an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA.

(b)    Schedule 2.12(b) of the Company Disclosure Schedules sets forth a complete and accurate list of each Company Employee Plan and Employee Agreement. The Company has not made any plan or commitment to establish any new Company Employee Plan or Employee Agreement, to modify any Company Employee Plan or Employee Agreement (except to the extent required by law or to conform any such Company Employee Plan or Employee Agreement to the requirements of any applicable law, or as required by this Agreement), or to enter into any Company Employee Plan or Employee Agreement, nor does it have any intention or commitment to do any of the foregoing. The Company has previously made available to Parent a true and complete table setting forth the name, position and salary of each employee of the Company.

(c)    Documents . The Company has provided to Parent: (i) correct and complete copies of all documents embodying each Company Employee Plan and each Employee Agreement including, without limitation, all amendments thereto and written interpretations thereof and all related trust documents; (ii) the three (3) most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, filed pursuant to ERISA or the Code in connection with each Company Employee Plan; (iii) if the Company Employee Plan is funded, the most recent annual and periodic accounting of Company Employee Plan assets; (iv) the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to each Company Employee Plan; (v) all material written agreements and contracts relating to each Company Employee Plan, including, without limitation, administrative service agreements and group insurance contracts; (vi) all communications from the Company within the prior three (3) years material to any Employee or Employees relating to any Company Employee Plan and any proposed Company Employee Plan, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any liability to the Company; (vii) all correspondence to or from any governmental agency relating to any Company Employee Plan within the prior three (3) years; (viii) all material COBRA forms and related notices; (ix) all policies pertaining to fiduciary liability insurance covering the fiduciaries for each Company Employee Plan; (x) all discrimination tests for each Company Employee Plan for the three (3) most recent plan years; and (xi) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan.

(d)    Employee Plan Compliance . The Company has performed all obligations required to be performed by it under, is not in default or violation of, and has no Knowledge of any default or violation by any other party to, any Company Employee Plan, and each Company Employee Plan has been established and maintained in accordance with its material terms and in compliance, in all material respects, with all applicable laws, statutes, orders, rules and regulations, including but not limited to ERISA or the Code. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code and any trust intended to qualify under Section 501(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code or is entitled to rely on a prototype plan sponsor’s determination letter pursuant to IRS pronouncements. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. There are no actions, suits or claims pending which have been served on the Company or, to the Knowledge of the Company, otherwise pending or threatened or reasonably anticipated (other than routine claims for benefits) against any Company Employee Plan or against the assets of any Company Employee Plan. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without liability to Parent, the Company or any Affiliate (other than accrued benefits and ordinary administration expenses). There are no audits, inquiries or proceedings pending or, to the Knowledge of the Company or any Affiliates, threatened by the IRS, DOL, or any other Governmental Entity with respect to any Company Employee Plan. Neither the Company nor any Affiliate is subject to any penalty or tax with respect to any Company Employee Plan under Section 402(i) of ERISA or Sections 4975 through 4980 of the Code. The Company has made all contributions and other payments required by and due under the terms of each Company Employee Plan.

(e)    No Pension Plan . Neither the Company nor any Affiliate has ever maintained, established, sponsored, participated in, or contributed to, any Pension Plan that is subject to Title IV of ERISA or Section 412 of the Code.

(f)    No Self-Insured Plan . Neither the Company nor any Affiliate has ever maintained, established sponsored, participated in or contributed to any self-insured plan that provides healthcare, life, disability or other welfare benefits to employees (including, without limitation, any such plan pursuant to which a stop-loss policy or contract applies).

(g)    Collectively Bargained, Multiemployer and Multiple-Employer Plan . At no time has the Company or any Affiliate contributed to or been obligated to contribute to any multiemployer plan, as defined in Section 414(f) of the Code and Section 3(37) of ERISA. Neither the Company nor any Affiliate has at any time ever maintained, established, sponsored, participated in or contributed to any multiple employer plan or to any plan described in Section 413 of the Code.

(h)    No Post-Employment Obligations . No Company Employee Plan or Employment Arrangement provides, or reflects or represents any liability to provide, retiree life insurance, retiree health or other retiree employee welfare benefits to any person for any reason, except as may be required by COBRA or other applicable statute, and the Company has not represented, promised or contracted (whether in oral or written form) to any Employee (either individually or to Employees as a group) or any other person that such Employee(s) or other person would be provided with retiree life insurance, retiree health or other retiree employee welfare benefits, except to the extent required by statute.

(i)    COBRA; FMLA; HIPAA . The Company and each Affiliate has, prior to the Effective Time, complied, in all material respects, with COBRA, FMLA, HIPAA, the Women’s Health and Cancer Rights Act of 1998, the Newborns’ and Mothers’ Health Protection Act of 1996, and any similar provisions of state law applicable to its Employees. The Company does not have unsatisfied obligations to any Employees or qualified beneficiaries pursuant to COBRA, HIPAA or any state law governing health care coverage or extension.

(j)    Effect of Transaction . The execution of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Plan, Employee Agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits or be deemed a “parachute payment” under Section 280G of the Code with respect to any Employee.

(k)    Employment Matters . The Company: (i) to the Knowledge of the Company, it is in compliance, in all material respects, with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices, terms and conditions of employment, termination of employment, employee safety and wages and hours, and in each case, with respect to Employees; (ii) has withheld and reported all amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to Employees; (iii) to the Knowledge of the Company is not liable for any arrears of wages, severance pay or any taxes or any penalty for failure to comply with any of the foregoing; and (iv) to the Knowledge of the Company is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any governmental authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for Employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no action, suits, claims or administrative matters pending which have been served on the Company, or to the Company’s Knowledge, otherwise pending or threatened or reasonably anticipated against the Company or any of its Employees relating to any Employee, Employee Agreement or Company Employee Plan. There are no pending, which have been served on the Company, or to the Company’s Knowledge, otherwise pending or threatened or reasonably anticipated claims or actions against Company, any Company trustee under any worker’s compensation policy. To the Company’s Knowledge, no employee of the Company has violated any employment contract, nondisclosure agreement, non-competition or non-solicitation agreement by which such employee is bound due to such employee being employed by the Company and disclosing to the Company or using trade secrets or proprietary information of any other person or entity. The services provided by each of the Company’s and its Affiliate’s Employees is terminable at the will of the Company and its Affiliates and any such termination would result in no liability to the Company or any Affiliate.  

(l)    No Interference or Conflict . To the Knowledge of the Company, no officer, Employee or consultant of the Company is obligated under any contract or agreement, subject to any judgment, decree, or order of any court or administrative agency that would interfere with such person’s efforts to promote the interests of the Company or that would interfere with the Company’s business. Neither the execution nor delivery of this Agreement, nor the carrying on of the Company’s business as presently conducted or proposed to be conducted nor any activity of such officers, Employees or consultants in connection with the carrying on of the Company’s business as presently conducted or currently proposed to be conducted will, to the Knowledge of the Company, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract or agreement under which any of such officers, Employees, or consultants is now bound.

(m)    International Employee Plan . Neither the Company nor any Affiliate currently or has it ever had the obligation to maintain, establish, sponsor, participate in, be bound by or contribute to any International Employee Plan.

2.13    Labor Matters . Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by the Company or any of its Subsidiaries nor does the Company have Knowledge of any activities or proceedings of any labor union to organize any such employees.

2.14    Restrictions on Business Activities . To the Company’s Knowledge, there is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or their respective assets or to which the Company or any of its Subsidiaries is a party which has or could reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently conducted.

2.15    Real Property .

(a)    “ Owned Real Property ” shall mean each piece of real property owned in fee simple (or with respect to real property located outside the United States, such other similar form of title as may be described in the title policy for such parcel) by the Company or any of its Subsidiaries (including all land, easements, development rights and other rights and interests appurtenant thereto including interests in buildings, structures, improvements and fixtures located thereon) which Owned Real Property is described on Schedule 2.15(a) attached hereto and made a part hereof. The Owned Real Property constitutes all of the real property owned by the Company or any of its Subsidiaries in connection with the businesses of the Company and its Subsidiaries.

(b)    “ Leased Real Property ” shall mean each property leased, subleased, licensed, or otherwise occupied by the Company or any of its Subsidiaries pursuant to a lease, sublease, license, or other occupancy agreement and all amendments, modifications, and supplements thereto, excluding leases for individual condominium units at any Owned Real Property and leases of individual condominium units within the Optioned Property Projects, all of which condominium unit leases are with Persons not affiliated with the Company for fair market value on reasonable and customary terms, (each, a “ Lease ”) (including all rights included in any Lease for a Leased Real Property to use or occupy any land, buildings, including sales kiosks, and improvements thereon), which Leased Real Property is described on Schedule 2.15(b) attached hereto and made a part hereof. A true, correct and complete copy of each Lease for each Leased Real Property, except for all bay bottom/submerged land leases entered into with the Board of Trustees of the Internal Improvement Fund under the Florida Administrative Code, is described on Schedule 2.15(b) attached hereto and made a part hereof, a copy of each of which has been delivered to Parent or its representatives prior to the date hereof. The Leased Real Property constitutes all of the real property leased, subleased, licensed, or otherwise occupied by the Company and any of its Subsidiaries.

(c)    Each agreement (an “ Optioned Property Redevelopment Agreement ”) pursuant to which the Company or a Subsidiary, as the case may be, has an option to purchase all or part of an Optioned Property Project, has a management agreement and/or ground lease for an Optioned Property Project, or is redeveloping an Optioned Property Project and each fee or other mortgage encumbering or other financing with respect to an Optioned Property Project (an “ Optioned Property Mortgage ”) is listed on said Schedule 2.15(c) . There are no other agreements pursuant to which the Company or a Subsidiary has an option to purchase all or part of an Optioned Property Project or is managing, leasing or redeveloping an Optioned Property Project other than those listed on said Schedule 2.15(c) . To Company’s Knowledge, no party is in material default in respect of its respective obligations under any Optioned Property Redevelopment Agreement or under any Optioned Property Mortgage and no act or omission of a party, which, with the passage of time or the giving of notice or both, would comprise a default, except for such defaults as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect. True, correct and complete copies of the Optioned Property Provider Agreement and each Optioned Property Redevelopment Agreement and Optioned Property Mortgage described on Schedule 2.15(c) hereto have heretofore been delivered to Parent or its representatives prior to the date hereof.

(d)    Intentionally Left Blank

(e)    “ Real Property ” shall mean, collectively, the Owned Real Property, the Leased Real Property, and the Optioned Property Projects.

(f)    Each Lease is binding, enforceable, in full force and effect and neither the Company nor any of its Subsidiaries have received written notice or otherwise have Knowledge that they are in default or in breach under such Lease except for such defaults as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect. Neither Company nor any of its Subsidiaries have Knowledge of any event or omission, which, with the passage of time or the giving of notice or both, would comprise a default, except for such defaults as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect. To Company’s Knowledge, no landlord, sublandlord, licensor or other Person that is a party to any Lease (other than Company or a Subsidiary) is in default in respect of its obligations under such Lease and no event or omission has occurred, which, with the passage of time or the giving of notice or both, would cause any such Person to be in default in a material respect of its obligations under such Lease. Neither the Company nor any of its Subsidiaries have received written notice of any claimed abatements, offsets, defenses or other bases for relief or adjustment under any of the Leases. The Merger does not require the consent of any Person or party to any Lease or any consent the absence of which would not cause a Company Material Adverse Effect), and will not result in a breach of or default under such Lease, or otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect following the Closing. No security deposit or portion thereof deposited with respect to any Lease has been applied in respect of a breach or default under which Lease which has not been redeposited in full by Company or any Subsidiary. Except as may be disclosed in a Lease, the Company and its Subsidiaries do not owe, nor will they owe in the future, any brokerage commissions or finder’s fees with respect to such Lease which is not paid. No party to any Lease (except where such party is the Company or a Subsidiary) has an economic interest in the Company or a Subsidiary. Neither the Company nor any Subsidiary has (i) assigned, subleased, licensed or otherwise granted any Person (except where such Person is the Company or a Subsidiary) the right to use or occupy such Leased Real Property or any portion thereof, or (ii) collaterally assigned or granted any other security interest in any Lease or any interest therein.

(g)    With respect to the Real Property, as applicable: (i) the Company, its Subsidiaries or the Optioned Property Provider, as the case may be, have good and marketable fee simple interest in the Real Property and a valid leasehold interest in the Leased Real Property, free and clear of any use or occupancy restrictions, Liens, encumbrances, and easements or title defects, except as set forth on any existing title insurance policy, deed, or survey, that have had or could have a Project Material Adverse Effect or a Material Adverse Effect on the Company’s, or any of its Subsidiaries’, as the case may be, use and occupancy of the Real Property or the Optioned Property Projects, as the case may be; and (ii) neither the Company nor any of its Subsidiaries have received written notice or otherwise have Knowledge (a) of any condemnation, eminent domain or similar proceeding affecting any portion of the Real Property or any access thereto or of any sale or other disposition of the Real Property or any part thereof in lieu of condemnation or of any possible widening of streets abutting all or any portion of the Real Property, and, to the Knowledge of the Company, no such proceedings are contemplated, (b) of the imposition of any special taxes or assessments by a governmental authority, or payments in lieu thereof, against all or any portion of the Real Property, or any pending improvement liens to be made by any governmental authority which may affect any Real Property, (c) from or on behalf of any existing insurance carriers indicating that the insurance rates for all or any portion of any of the Real Property will be substantially increased or that alterations of any Real Property are required, and (d) the curtailment of any utility service supplied to any Real Property.

(h)    Prior to the date hereof, the Company has furnished or made available to Parent or its representatives true and correct copies of all deeds, mortgages, surveys, licenses, leases, title insurance policies and permanent certificates of occupancy (or documents equivalent to certificates of occupancy in the jurisdiction where the Real Property is located) with respect to the Real Property that are in the possession of Company or its Subsidiaries.

(i)    Neither the Company nor its Subsidiaries have received written notice of, and to the Knowledge of the Company and its Subsidiaries there are no, outstanding claims made by or against the Company or any applicable Subsidiary or Optioned Property Provider with respect to title or ownership of the Owned Real Property or the Optioned Property Projects.

(j)    Neither the Company nor any of its Subsidiaries is obligated under or a party to, and none of the Owned Real Property or the Optioned Property Projects is subject to, any option, right of first refusal, right of first offer or other obligation to sell, transfer, dispose of, grant any interest in or lease any of the Owned Real Property or the Optioned Property Projects or any portion thereof or interest therein to any Person other than (x) the Company and its Subsidiaries or (y) such leases, subleases, licenses, concessions or other agreements entered into by the Company or its Subsidiaries in the ordinary course of business (the documents described in this clause (y), the “ Owned Real Property Leases ”), which Owned Real Property Leases are described on Schedule 2.15(j) attached hereto and made a part hereof. The Owned Real Property Leases are in full force and effect and neither the Company nor any of its Subsidiaries have received written notice or otherwise have Knowledge that they are in default or in breach under any such Lease except for such defaults as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither Company not any Subsidiary has Knowledge of any event or omission under any Owned Real Property Lease, which, with the passage of time or the giving of notice or both, would cause a default except for such defaults as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries have received written notice of, or have Knowledge of, any claimed abatements, offsets, defenses or other bases for relief or adjustment under any Owned Real Property Lease.

(k)    All improvements upon or constituting a part of the Real Property (including, but not limited to, the buildings, structures, fixtures, roofs and structural elements thereof and the heating, ventilation, air conditioning, plumbing, electrical, elevator mechanical, sewer, waste water, storm water, paving and parking equipment, systems and facilities included therein) (the “ Improvements ”) are adequate for the purposes for which they are being or shall be put in the ordinary course of business, except for such Improvements that are in the process of being developed or constructed, which, upon substantial completion, shall be adequate for the purposes for which they are intended to be used in the ordinary course of business. To the Knowledge of the Company, there are no facts or conditions affecting any of the Improvements, except for such Improvements that are in the process of being developed or constructed (which, upon substantial completion, shall be adequate for the purposes for which they are intended to be used in the ordinary course of business), which would interfere in any material respect with the use or occupancy of the Improvements or any portion thereof in the operation of the business of the Company and its Subsidiaries or which would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect.

(l)    There are no Construction Contracts with amounts payable as of December 31, 2006 that equal or exceed in the aggregate $1,000,000. As used herein, a “ Construction Contract ” shall mean each development agreement, master architectural contract or general contractor agreement to which the Company or any of its Subsidiaries is a party with respect to any present or contemplated construction by the Company or any Subsidiary for which no certificate of occupancy has been obtained (each, a “ Construction Project ”). To the Company's Knowledge, it has not received written notice that it or any other party thereto, is presently in default and there are no facts or circumstances which, with or without the passage of time or both, would result in a breach of any of the terms thereof by it or any such other party, except for such defaults as would not, individually or in the aggregate reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect.

(m)    Each condominium declaration related to Real Property in which dwelling units have been or are being sold by the Company or any of its Subsidiaries that is required to be filed in the real estate records of the county or other local jurisdiction in which such Owned Real Property or such Optioned Property Project is located has been properly filed and recorded with the appropriate county or other local jurisdiction office in which the respective Owned Real Property or Optioned Property Project is located, except for any failures to be so filed or recorded which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect or a Project Material Adverse Effect. All such condominium projects comply with Legal Requirements and all filings and approvals required by Legal Requirements with respect to such condominium projects have been obtained and all sales of condominium units have been conducted in compliance with Legal Requirements.

(n)    Neither the Company nor any of its Subsidiaries have any direct or indirect ownership in, or involvement with or liabilities of any type with respect to, the shopping center known as the Richland Mall and located in Columbia, South Carolina.

(o)    With respect to the parcel of Owned Real Property described on Schedule 2.15(a) hereto as Island Homes (also known as Vaca Cut Island) (“ Island Homes ”), the Company represents that prior to the Closing (i) the Company shall transfer ownership of Island Homes to the Clark Trust and/or David Schwarz or to an entity that Dave Clark and/or David Schwarz directly or indirectly control (any of the foregoing, the “ Island Homes Owner ”), (ii) any contract deposit posted or other expenses incurred by the Company or any Subsidiary with respect to Island Homes shall be reimbursed/returned by the Island Homes Owner to the Company or such Subsidiary in connection with such transfer of ownership, and (iii) the Company shall grant to Parent a right of first refusal to purchase or lease any portion of Island Homes that the Island Homes Owner intends to sell, lease or transfer directly or indirectly to any other Person and that the Island Homes Owner does not intend to retain ownership of in order to construct single family homes for Island Homes Owner and/or its immediate respective families, pursuant to a document containing mutually agreeable terms and provisions, in recordable form, to be executed by each of the Island Homes Owner and Parent (or to a Parent Affiliate designated by Parent) and recorded prior to the Closing.

2.16    Taxes .

Definition of Taxes . For the purposes of this Agreement, “ Tax ” or “ Taxes ” refers to any and all federal, state, local and foreign taxes, including, without limitation, gross receipts, income, profits, sales, use, occupation, value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, assessments, governmental charges and duties together with all interest, penalties and additions imposed with respect to any such amounts and any obligations under any agreements or arrangements with any other person with respect to any such amounts and including any liability of a predecessor entity for any such amounts.

(a)    Tax Returns and Audits .

(i)    As of the Closing Date, the Company and each of its Subsidiaries has filed all federal, state, local and foreign returns, estimates, information statements and reports relating to Taxes (“ Returns ”) required to be filed by the Company and each of its Subsidiaries with any Tax authority prior to the date hereof. To the Company’s Knowledge, all such Returns are true, correct and complete in all material respects. As of the Closing Date, the Company and each of its Subsidiaries has paid all Taxes shown to be due on such Returns. The Company is not a “United States real property holding corporation,” as defined in section 897 of the Internal Revenue Code of 1986, as amended, and Section 1.897-2(b) of the regulations promulgated thereunder.

(ii)    As of the Closing Date, all material Taxes that the Company or any of its Subsidiaries is required by law to withhold or collect have been duly withheld or collected, and have been paid over to the proper governmental authorities to the extent due and payable.

(iii)    As of the Closing Date, none of the Company or any of its Subsidiaries will be delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, assessed or, to the Knowledge of the Company, proposed against the Company or any of its Subsidiaries, nor will the Company or any of its Subsidiaries have executed any unexpired waiver of any statute of limitations extending or waiving the period for the assessment or collection of any Tax.

(iv)    To the Company’s Knowledge, no audit or other examination of any Return of the Company or any of its Subsidiaries by any Tax authority is presently in progress. Neither the Company nor any of its Subsidiaries has been notified in writing of any request for such an audit or other examination.

(v)    No adjustment relating to any Returns filed by the Company or any of its Subsidiaries has been proposed in writing, formally or informally, by any Tax authority to the Company or any of its Subsidiaries or any of the officers and directors thereof.

(vi)    As of the Closing Date, neither the Company nor any of its Subsidiaries has any liability for any material unpaid Taxes which have not been accrued for or reserved on the Company’s balance sheets included in the Audited Financial Statements or the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, would constitute a Company Material Adverse Effect, other than any liability for unpaid Taxes that may have accrued since the end of the most recent fiscal year in connection with the operation of the business of the Company and its Subsidiaries in the ordinary course of business.

2.17    Environmental Matters .

(a)    To the Company’s Knowledge, no facts or circumstances exist with respect to the Real Property which give rise to any liability based upon or related to the Company’s, any Subsidiary’s or any other Person’s actions or omissions in the processing, distribution, use, treatment, storage, disposal, transport or handling, or the emission, discharge or release into the environment of any Hazardous Substance, except where such liability would not have a Material Adverse Effect on the Company.

(b)    As used in this Agreement, the term “ Hazardous Substance ” means any substance that is: (i) listed, classified or regulated pursuant to any Environmental Law; (ii) any petroleum product or by-product, asbestos-containing material, lead-containing paint or plumbing, polychlorinated biphenyls or radioactive materials; or (iii) any other substance which is regulated under any Environmental Law.

(c)    Except for such matters that, individually or in the aggregate are not reasonably likely to have a Material Adverse Effect or a Project Material Adverse Effect to the Company’s Knowledge: (i) the Company and each of its Subsidiaries has complied at all times and is currently in compliance with all Environmental Laws; (ii) there are no Hazardous Substances at, in, under or from the Real Property; and (iii) there has been no release or threatened release of Hazardous Substances at, in, under or from the Real Property.

(d)    Except for those items that individually or in the aggregate are not reasonably likely to cause a Company Material Adverse Effect or a Project Material Adverse Effect: (i) there are no pending or, to the Knowledge of the Company, threatened claims, demands, actions, administrative proceedings, lawsuits or inquiries relating to the Real Property under Environmental Law; (ii) neither the Company nor any of its Subsidiaries has received any notice, demand, letter, claim or request for information alleging that the Company or any of its Subsidiaries may be in violation of or liable under any Environmental Law; and (iii) neither the Company nor any of its Subsidiaries is subject to any agreements, orders, decrees, injunctions or other arrangements with any Governmental Entity or other Person relating to liability under any Environmental Law or relating to Hazardous Substances.

(e)    Except as disclosed in Schedule 2.17(e) hereto and to the Knowledge of the Company, there are no underground storage tanks at any Real Property.

(f)    As used in this Agreement, the term “ Environmental Law ” means any federal, state, local or foreign law, regulation, order, decree, permit, authorization, opinion, common law or agency requirement relating to: (A) the protection, investigation or restoration of the environment, health and safety, or natural resources; (B) the handling, use, presence, disposal, release or threatened release of any Hazardous Substance; or (C) noise, odor, wetlands, pollution, contamination or any injury or threat of injury to persons or property.

(g)    The parties hereto acknowledge that the Company and its Subsidiaries may be in various stages of obtaining Material Permits, including, without limitation, any Material Permits related to any Environmental Law, as of the date of this Agreement and the Company and/or the applicable Subsidiary agree to use commercially reasonable best efforts from and after the date hereof to obtain and comply with such Material Permits, including, without limitation, any Material Permit relating to Environmental Laws as and when required by any Legal Requirements and Environmental Laws, it being agreed that any failure to obtain such Material Permits as of the Closing shall not individually or in the aggregate be reasonably expected to have a Company Material Adverse Effect or a Project Material Adverse Effect.

(h)    Except for those items that have been delivered to the Parent, there are no environmental investigations, studies or audits with respect to the Real Property.

2.18    Brokers; Third Party Expenses . The Company has not incurred, nor will it incur, directly or indirectly, any liability for brokerage, finders’ fees, agent’s commissions or any similar charges in connection with this Agreement or any transactions contemplated hereby. Except pursuant to Sections 1.6 and 1.19, no shares of common stock, options, warrants or other securities of either Company or Parent are payable to any third party by Company as a result of the Merger.

2.19    Intellectual Property . For the purposes of this Agreement, the following terms have the following definitions:

“ Intellectual Property ” shall mean any or all of the following and all worldwide common law and statutory rights in, arising out of, or associated therewith: (i) patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof (“ Patents ”); (ii) inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, technical data and customer lists, and all documentation relating to any of the foregoing; (iii) copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; (iv) software and software programs; (v) domain names, uniform resource locators and other names and locators associated with the Internet; (vi) industrial designs and any registrations and applications therefor; (vii) trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor (collectively, “ Trademarks ”); (viii) all databases and data collections and all rights therein; (ix) all moral and economic rights of authors and inventors, however denominated, and (x) any similar or equivalent rights to any of the foregoing (as applicable).

“ Company Intellectual Property ” shall mean any Intellectual Property that is owned by, or exclusively licensed to, Company or any of its Subsidiaries, including software and software programs developed by or exclusively licensed to the Company or any of its Subsidiaries (specifically excluding any off the shelf or shrink-wrap software).

“ Registered Intellectual Property ” means all Intellectual Property that is the subject of an application, certificate, filing, registration or other document issued, filed with, or recorded by any private, state, government or other legal authority.

“ Company Registered Intellectual Property ” means all of the Registered Intellectual Property owned by, or filed in the name of, Company or any of its Subsidiaries.

(a)    No Company Intellectual Property is subject to any material proceeding or outstanding decree, order, judgment, contract, license, agreement or stipulation restricting in any manner the use, transfer or licensing thereof by the Company or any of its Subsidiaries, or which may affect the validity, use or enforceability of such Company Intellectual Property, which in any such case could reasonably be expected to have a Material Adverse Effect on the Company.

(b)    The Company and each of its Subsidiaries, as the case may be : own and has good and exclusive title to, or in the case of exclusive licenses, has the right to use, each material item of Company Intellectual Property, owned by, or exclusively licensed to, either the Company or a Subsidiary, as the case may be, free and clear of any liens and encumbrances (excluding non-exclusive licenses and related restrictions granted by it in the ordinary course of business); and the Company or its Subsidiaries is the exclusive owner of all material registered Trademarks used in connection with the operation or conduct of its business as currently conducted including the sale of any products or the provision of any services by the Company or its Subsidiaries.

2.20    Infringement on Intellectual Property . To the Company’s Knowledge, the operation of the business of the Company and its Subsidiaries as such business currently is conducted has not and does not infringe or misappropriate the Intellectual Property of any third party or constitute unfair competition or trade practices under the laws of any jurisdiction. No written notice, charge, claim, action or assertion of infringement, unfair competition, unfair trade practices or misappropriation has been received by the Company or any of its Subsidiaries and, to the Company’s Knowledge, no written notice, charge, claim, action has been filed, commenced or threatened against the Company or any of its Subsidiaries alleging any such violation that could be expected to have a Company Material Adverse Effect.

2.21    Agreements, Contracts and Commitments .

(a)    Except for any items that are included in another schedule attached hereto or excluded by virtue of another representation included in this Article II, Schedule 2.21 hereto sets forth a complete and accurate list of all Material Company Contracts (as hereinafter defined), specifying the parties thereto. For purposes of this Agreement the term “ Company Contracts ” shall mean all contracts, agreements, leases, mortgages, indentures, notes, bonds, Optioned Property Redevelopment Agreements, licenses, permits, franchises, purchase orders, sales orders, and other understandings, commitments and obligations of any kind, whether written or oral, to which the Company or any of its Subsidiaries is a party or by or to which any of the properties or assets of the Company or any of its Subsidiaries may be bound, subject or affected (including without limitation notes or other instruments payable to the Company or its Subsidiaries). For purposes of this Agreement the term “ Routine Operating Contracts ” shall mean contracts entered into by the Company or any of its Subsidiaries w