AMENDED AND RESTATED MEZZANINE LOAN AGREEMENT

Exhibit 10.45

AMENDED AND RESTATED
MEZZANINE LOAN AGREEMENT

Between

1100 West Holdings, LLC,

a Delaware limited liability company

as Borrower

The Lenders Party Hereto

as Lenders

and

Eurohypo AG, New York Branch

as Administrative Agent

Dated as of November 25, 2008

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LIST OF EXHIBITS AND SCHEDULES

AMENDED AND RESTATED MEZZANINE LOAN AGREEMENT

This Amended and Restated Mezzanine Loan Agreement (this “ Agreement ”) is entered into as of November 25, 2008 among 1100 WEST HOLDINGS, LLC , a limited liability company duly organized and validly existing under the laws of the State of Delaware ( “ Borrower ” ) ; each of the lenders that is a signatory hereto identified under the caption “ LENDERS ” on the signature pages hereof and each lender that becomes a “Lender” after the date hereof pursuant to Section 12.24(2) (individually, a “ Lender ” and, collectively, the “ Lenders ”); and EUROHYPO AG, NEW YORK BRANCH (“ Eurohypo ”), as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “ Administrative Agent ”).

RECITALS

A. Borrower, the Administrative Agent and Eurohypo, as Lender, are parties to a Mezzanine Loan Agreement dated as of April 25, 2008 (as the same may be amended, modified and supplemented and in effect from time to time, the “ Existing Loan Agreement ”), which provides for, among other things, loans by the Lenders to Borrower in an aggregate principal or face amount not exceeding $28,000,000 (the “ Loans or Existing Loans ”).

B. Mortgage Borrower (as defined below), Mortgage Lenders (as defined below) and Eurohypo, as administrative agent are parties to that certain Loan Agreement dated as of August 8, 2006, as amended by that certain First Amendment to Loan Agreement dated as of September 6, 2007, and that certain Second Amendment to Loan Agreement dated as of April 25, 2008 (said Loan Agreement, as so amended, the “ Original Mortgage Loan Agreement ”), which provides for, among other things, loans by Mortgage Lenders to Mortgage Borrower in an aggregate principal or face amount not exceeding $124,000,000 (the “ Mortgage Loan ”).

C. On the date hereof, Mortgage Borrower, Mortgage Lenders and Eurohypo, as administrative agent, are entering into that certain Amended and Restated Loan Agreement dated as of the date hereof (as the same may be further amended, modified and supplemented and in effect from time to time, the “ Mortgage Loan Agreement ”).

D. Additional funds are required to complete the Building Conversion (as defined below) and cause Construction Completion (as defined below) to occur and certain affiliates of Borrower and Mortgage Borrower are ready to provide such funds through a combination of additional equity investments in Mortgage Borrower and the making of the Junior Mezzanine Loan (as defined below).

E. Borrower, the Lenders and the Administrative Agent desire to amend, restate and supersede the Existing Loan Agreement with this Agreement. As of the date hereof, the principal balance of the Loans is $26,046,370.42 and the unfunded amount of the Commitments is $1,953,629.58.

AGREEMENT

ARTICLE 1

CERTAIN DEFINITIONS

Section 1.1 Certain Definitions. As used herein, the following terms have the meanings indicated:

(1) “ Acceptable Counterparty ” shall mean (1) Eurohypo and/or its Affiliates, or (2) any other counterparty to the Hedge Agreement that has and shall maintain, until the expiration of the applicable Hedge Agreement, a credit rating of not less than ‘A’ from S&P.

(2) “ Access Laws ” has the meaning assigned to such term in Section 9.21(1) .

(3) “ Additional Costs ” has the meaning assigned to such term in Section 2.9(1)(a) .

(4) “ Adjusted LIBOR Rate ” means, for any Interest Period for any Eurodollar Loan, a rate per annum (rounded upwards, if necessary, to the nearest 1/1000 of 1%) determined by the Administrative Agent to be equal to the LIBOR Rate for such Interest Period divided by one (1) minus the Reserve Requirement (if any) for such Interest Period.

(5) “ Adjusted Operating Expenses ” means Operating Expenses as determined and adjusted by the Administrative Agent in accordance with its then current audit policies and procedures.

(6) “ Adjusted Operating Revenues ” means Operating Revenues as determined and adjusted by the Administrative Agent in accordance with its then current audit policies and procedures.

(7) “ Advance Conditions ” means those conditions listed in Schedule 2.1 attached hereto and made a part hereof.

(8) “ Advance Date ” has the meaning assigned to such term in Section 2.8(6) .

(9) “ Advanced Amount ” has the meaning assigned to such term in Section 15.12(2) .

(10) “ Affiliate ” means with respect to any Person, another Person that directly or indirectly Controls, or is under common Control with, or is Controlled by, such Person and, if such Person is an individual, any member of the immediate family (including parents, spouse, children and siblings) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is Controlled by any such member or trust. For purposes of this definition, any Person that owns directly or indirectly securities having ten percent (10%) or more of the voting power for the election of directors or other governing body of a corporation or thirty-five percent (35%) or more of the partnership, membership or other ownership interests of any other Person (other than as a limited partner of such other Person) will be deemed to Control such corporation or other Person. Notwithstanding the foregoing, no individual shall be an Affiliate solely by reason of his or her being a director, officer, trustee or employee of Borrower.

(11) “ Agency Fee ” means the agency fee agreed to by Borrower and Administrative Agent pursuant to the Fee Letter.

(12) “ Agreement ” means this Amended and Restated Mezzanine Loan Agreement, as amended from time to time.

(13) “ Amendment Closing Date ” means the date hereof.

(14) “ Annual Operating Budget ” has the meaning assigned to such term in Section 8.4 .

(15) “ Anti-Terrorism Order ” means Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States of America (Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism).

(16) “ Applicable Law ” means collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any governmental authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any governmental authority, in each case whether or not having the force of law.

(17) “ Applicable Lending Office ” means, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an affiliate of such Lender) designated for such Type of Loan on the respective signature pages hereof or such other office of such Lender (or of an affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and Borrower as the office by which its Loans of such Type are to be made and maintained.

(18) “ Applicable Margin ” with respect to the Loans shall mean (a) for Base Rate Loans, ten percent (10.0%) per annum; and (b) for Eurodollar Loans, six percent (6.0%) per annum.

(19) “ Appraisal ” means an appraisal of the Project prepared by an appraiser reasonably satisfactory to the Administrative Agent, which appraisal must also (a) satisfy the requirements of Title XI of the Federal Institution Reform, Recovery and Enforcement Act of 1989 and the regulations promulgated thereunder (including the appraiser with respect thereto) and (b) be otherwise in form and substance reasonably satisfactory to the Administrative Agent.

(20) “ Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

(21) “ Approved Sales Program ” has the meaning assigned to such term in Section 14.2 .

(22) “ Assignment and Acceptance ” means an Assignment and Acceptance, duly executed by the parties thereto, in substantially the form of Exhibit D hereto and consented to by the Administrative Agent in accordance with Section 12.24(2) .

(23) “ Assignment of Forward Purchase Contract ” means that certain Assignment of Forward Purchase Contract dated as of the Original Closing Date by and among Mortgage Borrower, Administrative Agent and the buyers named in the Forward Purchase Contract.

(24) “ Assignment of Rents and Leases ” means the Assignment of Rents and Leases, executed by Mortgage Borrower for the benefit of the Mortgage Loan Administrative Agent (on behalf of the Mortgage Lenders), and pertaining to leases of space in the Project, as the same may be modified, amended and/or supplemented from time to time.

(25) “ Association ” means the association to be formed pursuant to the Declaration.

(26) “ Authorized Officer ” means, with respect to Borrower or Mortgage Borrower, an officer of Sanctuary Management who has knowledge of the financial affairs of Borrower or Mortgage Borrower, and with respect to Morgans LLC, an officer who holds the title of controller or chief financial officer or an equivalent title.

(27) “ Bankruptcy Code ” means Title 11 of the United States Code, 11 U.S.C. § 101 et seq., as amended from time to time.

(28) “ Bankruptcy Party ” has the meaning assigned in Section 10.9 .

(29) “ Base Rate ” means, for any day, a rate per annum equal to the Prime Rate for such day. Each change in any interest rate provided for herein based upon the Base Rate resulting from a change in the Base Rate shall take effect at the time of such change in the Base Rate.

(30) “ Base Rate Loans ” means Loans that bear interest at rates based upon the Base Rate.

(31) “ Basel II ” means that certain revised at-risk capital framework published by the Basel Committee on Banking Supervision in its paper entitled “International Convergence of Capital Measurement and Capital Standards: a Revised Framework” in June, 2004, as amended, modified and in effect from time to time.

(32) “ Boat Slip ” or “ Boat Slips ” means any one or more of the boat slips located adjacent to, and comprising a part of, the Project.

(33) “ Borrower Party ” means Mortgage Borrower, Borrower, MMI, Sanctuary Avenue, any Joinder Party or any Guarantor.

(34) “ Broker ” has the meaning assigned to such term in Section 12.25 .

(35) “ Building Conversion ” means the conversion of the Project from a rental building to a hotel condominium building in accordance with, and as contemplated by, the Project Budget, the Plans and Specifications and the terms of this Agreement.

(36) “ Business Day ” means (a) any day other than a Saturday, a Sunday, or other day on which commercial banks located in New York City are authorized or required by Applicable Law to remain closed and (b) in connection with a borrowing of, a payment or prepayment of principal of or interest on, a Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice by Borrower with respect to any such borrowing, payment, prepayment or Conversion, the term “Business Day” shall also exclude a day on which banks are not open for dealings in Dollar deposits in the London interbank market.

(37) “ Cash Management Account ” has the meaning assigned to such term in the Cash Management Agreement.

(38) “ Cash Management Agreement ” means that certain Second Amended and Restated Cash Management and Security Agreement dated and delivered on or about the date hereof, by and among Mortgage Borrower, the Mortgage Loan Administrative Agent (on behalf of the Lenders) and the Depository Bank, as the same may be modified, amended and/or supplemented from time to time.

(39) “ Casualty ” has the meaning assigned to such term in Section 3.3(1) .

(40) “ Casualty/Taking Account ” has the meaning assigned to such term in the Cash Management Agreement.

(41) “ Change of Control ” shall mean: (a) any event, including, without limitation, the sale, transfer, issuance, assignment, pledge or encumbrance in one or more transactions, of any direct or indirect beneficial ownership interests in the Borrower, which results in (i) any Person, other than MMI and Sanctuary Avenue, owning or encumbering any of the membership interests in, or rights to distributions from, Borrower; (ii) any Person other than the MMI and Sanctuary Avenue having the responsibility for managing and administering the day-to-day business and affairs of, or otherwise Controlling, the Borrower, (iii) any Person other than Morgans LLC and Sanctuary Holdings owning or encumbering any of the membership interests in, or rights to distributions from, MMI or Sanctuary Avenue, respectively, or (iv) any Person other than Morgans LLC or Sanctuary Holdings having the responsibility for managing and administering the day-to-day business and affairs of, or otherwise Controlling, MMI and Sanctuary West, respectively; or (b) Morgans Public no longer directly or indirectly (i) owning (free of any encumbrance) at least 51% of the ownership interests in and rights to distributions from MMI and owning at least 51% of the ownership interests in and rights to distributions from Morgans LLC, (ii) having responsibility for managing and

administering the day-to-day business and affairs of MMI or Morgans LLC, or (iii) in any other respects, any Person other than Morgans Public directly or indirectly Controlling MMI or Morgans LLC; or (c) Galbut or members of his immediate family (including parents, spouse, children and siblings) no longer directly or indirectly (i) owning at least 51% of the ownership interests in and rights to distributions from Sanctuary Avenue, Sanctuary Holdings or Sanctuary Management, (ii) having responsibility for managing and administering the day-to-day business and affairs of Sanctuary Avenue, Sanctuary Holdings or Sanctuary Management, or (iii) in any other respects, any Person other than Galbut or Sonny Kahn directly or indirectly Controlling Sanctuary Avenue, Sanctuary Holdings or Sanctuary Management. A “ Change of Control ” shall not be deemed to have occurred solely as a result of (w) the transfer of membership interests in Borrower between MMI and Sanctuary Avenue, so long as MMI and/or Sanctuary Avenue continue to own 100% of the membership interests in Borrower and to Control Borrower; (x) transfers of ownership interests Morgans Public; or (y) transfers by Galbut of ownership interests in Sanctuary Avenue, Sanctuary Holdings or Sanctuary Management for estate planning purposes to family members of Galbut or one or more trusts of the benefit of such immediate family members, provided that after giving effect to such transfer Galbut shall continue to have responsibility for managing and administering the day-to-day business and affairs of, and otherwise continue to Control, Sanctuary Avenue, Sanctuary Holdings or Sanctuary Management; or (z) as a result of Galbut’s passing away, he no longer Controls Sanctuary Avenue, Sanctuary Holdings or Sanctuary Management, so long as Menin, Daniel Galbut, Frohlich or the personal representative of the estate of Galbut Controls Sanctuary Avenue, Sanctuary Holdings and Sanctuary Management.

(42) “ Clearing Account ” has the meaning assigned to such term in the Clearing Account Agreement.

(43) “ Clearing Account Agreement ” means the Clearing Account Agreement among Mortgage Borrower, the Administrative Agent and the Clearing Bank pertaining to the Clearing Account, as the same may be modified, amended and/or supplemented and in effect from time to time.

(44) “ Clearing Bank ” has the meaning assigned to such term in the Clearing Account Agreement.

(45) “ Code ” means the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated thereunder.

(46) “ Collateral ” means the pledge of ownership interests provided as collateral for the Loan pursuant to the Pledge Agreement and all other collateral described herein and in the other Loan Documents.

(47) “ Commitment ” means, as to each Lender, the obligation of such Lender to make a Loan in a principal amount up to but not exceeding the amount set opposite the name of such Lender on Schedule 1(a) under the caption “Commitment” or, in the case of a Person that becomes a Lender pursuant to an assignment permitted under Section 12.24(2) , as specified in the respective instrument of assignment pursuant to which such assignment is effected. The original aggregate principal amount of the Commitments is Twenty Eight Million and No/100 Dollars ($28,000,000).

(48) “ Completion Guaranty ” means that certain Completion Guaranty, dated as of the date hereof, executed by Galbut, Frohlich, Menin and Morgans LLC in favor of the Administrative Agent (on behalf of the Lenders), as the same may be modified, amended, and/or supplemented and in effect from time to time.

(49) “ Condominium Act ” means Chapter 718 of the Florida Statutes, as amended.

(50) “ Condominium Escrow ” means that certain condominium escrow held pursuant to the Condominium Escrow Agreement.

(51) “ Condominium Escrow Agreement ” means the condominium escrow agreement between Mortgage Borrower and Escrow Agent, approved by the Mortgage Loan Administrative Agent in writing.

(52) “ Constituent Documents ” has the meaning assigned to such term in Section 9.17(1) .

(53) “ Construction Completion ” means the satisfaction of all of the conditions set forth on Part B of Schedule 2.1 as required pursuant to the terms of this Agreement.

(54) “ Construction Completion Deadline ” means April 1, 2009.

(55) “ Construction Consultant ” has the meaning assigned to such term in Section 8.8 .

(56) “ Construction Management Contract ” means the contract for the management of construction of the Improvements dated as of July 9, 2007, entered into between Mortgage Borrower and the Construction Manager, as the same may be modified, supplemented and/or amended from time to time in accordance with the terms of the Mortgage Loan Agreement.

(57) “ Construction Manager ” means G.T. Construction and Development, Inc.

(58) “ Continue ” “ Continuation ” and “ Continued ” refer to the continuation pursuant to Section 2.2 of (a) a Eurodollar Loan from one Interest Period to the next Interest Period or (b) a Base Rate Loan at the Base Rate.

(59) “ Contract Price ” means the Purchase Price of a Unit as set forth in a Qualified Purchase Contract (net of any credits to the purchaser), not including any amounts for any build-out or improvements in excess of Standard Unit Finish.

(60) “ Control ” of one Person (the “controlled Person”) by another Person (the “controlling Person”) means the possession, directly or indirectly, by the controlling Person of the power or ability to direct or cause the direction of the management or policies of the controlled Person, whether through the ability to exercise voting power, by contract or otherwise (“ Controlled ” and “ Controlling ” each have the meanings correlative thereto).

(61) “ Convert ” “ Conversion ” and “ Converted ” means, with respect to any Type of Loan, a conversion pursuant to the terms of this Agreement of one Type of Loans into another Type of Loans, which may be accompanied by the transfer by a Lender (at its sole discretion) of a Loan from one Applicable Lending Office to another.

(62) “ Debt ” means, for any Person, without duplication: (a) all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of property for which such Person or its assets is liable, (b) all unfunded amounts under a loan agreement, letter of credit, or other credit facility for which such Person would be liable, if such amounts were advanced under the credit facility, (c) all amounts required to be paid by such Person as a guaranteed payment to partners, members (or other equity holders) or a preferred or special dividend, including any mandatory redemption of shares or interests, (d) all indebtedness guaranteed by such Person, directly or indirectly, (e) all obligations under leases that constitute capital leases for which such Person is liable, and (f) all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person is liable contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against loss.

(63) “ Debt Service ” means, for any period of determination, the aggregate interest due with respect to the Loans and the Mortgage Loan during such period.

(64)  “ Debt Service Coverage Ratio ” means, as of any date of determination, the ratio of Net Operating Income to Debt Service for the twelve (12) calendar months ending immediately prior to the date of such determination. The Debt Service Coverage Ratio shall be as determined by the Administrative Agent based upon the most recent reports required to have been submitted by Borrower under Section 8.1 (or, if no such reports have been so submitted, such other information as Administrative Agent shall determine in its discretion), which determination shall be conclusive in the absence of manifest error.

(65) “ Declarant ” has the meaning assigned to such term in Section 9.17(1) .

(66) “ Declaration ” means that certain Declaration of Condominium for Mirador 1000, dated December 30, 2004 and recorded in the Clerk of the Court, Miami-Dade County, Florida, on December 30, 2004 in OR Book 22959 at Page 1727.

(67) “ Default Rate ” means a rate per annum equal to five percent (5%) plus the Base Rate as in effect from time to time plus the Applicable Margin for Base Rate Loans, provided that, with respect to principal of a Eurodollar Loan, the “ Default Rate ” shall be the greater of (a) five percent (5%) plus the interest rate for such Loan as provided in Section 2.3 and (b) the rate provided for above in this definition; provided, however, that in no event shall the Default Rate exceed the maximum rate allowed by Applicable Law.

(68) “ Defaulting Lender ” has the meaning assigned to such term in Section 15.12(1) .

(69) “ Depository Bank ” has the meaning assigned to such term in the Cash Management Agreement.

(70) “ Distribution ” means, other than payments which are expressly permitted to be made pursuant to this Agreement, any of the following: (a) the payment by any Person of any Distributions or other payments to its shareholders, members or partners; (b) the declaration or payment of any dividend on or in respect of shares of any class of capital stock of, membership interest in, or partnership interest in, any Person; (c) the purchase or other retirement of any shares of any class of capital stock of, membership interest in, or partnership interest in, any Person, directly or indirectly through a subsidiary or otherwise; (d) the return of capital by any Person to its shareholders, members, or partners; or (e) any other payment on or in respect of any shares of any class of capital stock of, membership interest in, or partnership interest in, any Person.

(71) “ Dollars ” and “ $ ” means lawful money of the United States of America.

(72) “ Eligible Assignee ” means any of (a) a commercial bank organized under the laws of the United States, or any State thereof, and having (i) total assets in excess of $1,000,000,000 and (ii) a combined capital and surplus of at least $250,000,000; (b) a commercial bank organized under the laws of any other country which is a member of the Organization of Economic Cooperation and Development (“ OECD ”), or a political subdivision of any such country, and having (i) total assets in excess of $1,000,000,000 and (ii) a combined capital and surplus of at least $250,000,000, provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of OECD; (c) a life insurance company organized under the laws of any State of the United States, or organized under the laws of any country and licensed as a life insurer by any State within the United States and having admitted assets of at least $1,000,000,000; (d) a nationally recognized investment banking company or other financial institution in the business of making loans, or an Affiliate thereof (other than any Person which is directly or indirectly a Borrower Party or directly or indirectly an Affiliate of any Borrower Party) organized under the laws of any State of the United States, and licensed or qualified to conduct such business under the laws of any such State and having (i) total assets of at least $1,000,000,000 and (ii) a net worth of at least $250,000,000; (e) an Approved Fund; or (f) or a Related Entity of Eurohypo.

(73) “ Environmental Claim ” has the meaning assigned to such term in Section 5.1(1) .

(74) “ Environmental Laws ” has the meaning assigned to such term in Section 5.1(2) .

(75) “ Environmental Liens ” has the meaning assigned to such term in Section 5.3(4) .

(76) “ Environmental Losses ” has the meaning assigned to such term in Section 5.1(4) .

(77) “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time and any regulations promulgated thereunder.

(78) “ Escrow Agent ” means an escrow agent as may be reasonably approved by Administrative Agent.

(79) “ Eurodollar Loan ” means Loans that bear interest at rates based on rates referred to in the definition of “LIBOR Rate”.

(80) “ Eurohypo ” means Eurohypo AG, New York Branch.

(81) “ Event of Default ” has the meaning assigned to such term in Article 10 .

(82) “ Excess Cash Flow ” means, with respect to the applicable Unit, the Net Sales Proceeds less the Scheduled Release Price.

(83) “ Existing Loan Agreement ” has the meaning assigned to such term in the Recitals.

(84) “ Existing Loans ” has the meaning assigned to such term in the Recitals.

(85) “ Exit Fee ” means a fee payable by Borrower to Administrative Agent (for the benefit of the Lenders) in an amount equal to one and one-quarter percent (1.25%) of the full amount of the Commitments.

(86) “ Fee Letter ” means the letter agreement, dated as of the Original Closing Date, between Borrower and Administrative Agent with respect to certain fees payable by Borrower in connection with the Loans, as the same may be modified or amended from time to time.

(87) “ FNMA ” means the Federal National Mortgage Association.

(88) “ Fifth Extension Notice ” has the meaning assigned to such term in Section 2.5(5)(a) .

(89) “ Fifth Extension Period ” has the meaning assigned to such term in Section 2.5(5) .

(90) “ First Extension Notice ” has the meaning assigned to such term in Section 2.5(1)(a) .

(91) “ First Extension Period ” has the meaning assigned to such term in Section 2.5(1) .

(92) “ Forward Purchase Contract ” means that Agreement for Purchase of Condominium Units and related Rider, each dated as of the Original Closing Date, by and among Mortgage Borrower, as seller and/or developer and Galbut, Frohlich, Menin and Morgans Group LLC, a Delaware limited liability company, individually and collectively, as buyers and/or purchasers.

(93) “ Fourth Extension Notice ” has the meaning assigned to such term in Section 2.5(4)(a) .

(94) “ Fourth Extension Period ” has the meaning assigned to such term in Section 2.5(4) .

(95) “ Franchise Fee ” means the franchise fee payable to Hotel Manager as hotel operator upon the sale of a Unit, which shall be in the amount of one percent (1%) of the Purchase Price of such Unit up to that portion of the gross sales price attributable to a gross sales price of $800 per square foot, and ten percent (10%) of the Units’ gross sales price attributable to a sales price greater than $800 per square foot.

(96) “ Frohlich ” means Seth Frohlich, an individual.

(97) “ Galbut ” means Abraham Galbut, an individual.

(98) “ Government Lists ” means (a) the Specially Designated Nationals and Blocked Persons List maintained by OFAC, (b) any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC that is included in “Governmental Lists”, or (c) any similar list maintained by the United States Department of State, the United States Department of Commerce or any other Governmental Authority or pursuant to any Executive Order of the President of the United States of America.

(99) “ Guarantee or “ Guaranty ” means any instruments of guaranty (including the Joinder, Completion Guarantee and the Minimum Equity Guarantee) delivered to the Administrative Agent (for the benefit of the Lenders) in connection with the Loans.

(100) “ Guarantor ” or Guarantors ” means the Persons, including the Joinder Parties, executing a Guarantee.

(101) “ Hazardous Materials ” has the meaning assigned to such term in Section 5.1(5) .

(102) “ Hazardous Substances Indemnity Agreement ” means that certain Hazardous Substances Indemnity Agreement by Borrower and Joinder Parties in favor of the Administrative Agent and each of the Lenders, to be executed, dated and delivered to the Administrative Agent (on behalf of the Lenders) on the Original Closing Date, as the same may be modified, amended and/or supplemented and in effect from time to time.

(103) “ Hedge Agreement ” shall mean an interest rate cap with a maturity date of the initial Maturity Date entered into with an Acceptable Counterparty with a notional amount equal to the outstanding principal balance of the Loans for the term of the Loan and a LIBOR strike price not greater than five percent (5%). Furthermore, each Hedge Agreement shall provide for (i) the calculation of interest, (ii) the determination of the interest rate, (iii) the modification of the Interest Period, and (iv) the distribution of payments thereunder to be identical to the definition of Interest Period set forth herein.

(104) “ Hedge Agreement Pledge ” means that certain Assignment, Pledge and Security Agreement, to be executed, dated and delivered by Borrower and Acceptable Counterparty to the Administrative Agent (on behalf of the Lenders) in accordance with Section 9.15 and at any other time Borrower elects or is required to enter into a Hedge Agreement, covering Borrower’s right, title and interest in and to any such Hedge Agreement, as the same may be modified, amended and/or supplemented and in effect from time to time.

(105) “ Hotel Improvements ” means that portion of the Improvements consisting of a 335-room luxury hotel to be known as “Mondrian South Beach Hotel Residences,” consisting of a restaurant, a sunset bar, a swimming pool, a gym, a spa, the Boat Slips, on-site parking areas, and related amenities and improvements.

(106) “ Hotel Management Agreement ” means that certain Hotel Management Agreement dated as of August 7, 2006, between the Hotel Manager and Mortgage Borrower with respect to the management of the Project as a hotel, as the same may from time to time hereafter be modified, amended or replaced in accordance with the terms of this Agreement.

(107) “ Hotel Manager ” means Morgans Hotel Group Management LLC, a Delaware limited liability company, or another hotel manager acceptable to the Administrative Agent.

(108) “ Hotel Manager’s Consent ” means the Hotel Manager’s Consent and Subordination Agreement executed, dated and delivered by (i) the Hotel Manager and Borrower to the Administrative Agent (on behalf of the Lenders) on the Original Closing Date and (ii) any successor Hotel Manager to Administrative Agent (on behalf of Lenders) prior to its appointment as Hotel Manager, as the same may be modified, amended and/or supplemented and in effect from time to time.

(109) “ Hotel Opening ” means that the Hotel Improvements are open for business with the public in compliance with the all Applicable Law and the majority of Units have been completed and are ready for occupancy.

(110) “ Hotel Opening Deadline ” means January 1, 2009.

(111) “ Improvements ” has the meaning assigned to such term in the Mortgage.

(112) “ Indemnified Party ” has the meaning assigned to such term in Section 9.12 .

(113) “ Independent Manager ” means, in the case of a limited liability company or a limited partnership, a member or manager that is a natural person who, for the five (5) year period prior to his or her appointment as an Independent Manager and at all times while serving as an Independent Manager was not and will not be, directly or indirectly, (i) an employee, manager, stockholder, director, member, partner, officer, attorney or counsel of such limited liability company, limited partnership or any of its Affiliates (other than his or her service as an Independent Manager or special member of the limited liability company or limited partnership), (ii) a creditor, customer of, or supplier or other Person who derives any of its purchases or revenues from its activities with such limited liability company, limited partnership or any of its members, managers or their Affiliates (other than his or her service as an Independent Manager if such Person has been provided by a nationally-recognized company that provides professional independent directors and/or as a corporate service provider if such nationally recognized company also provides corporate services), (iii) a Person Controlling or under common Control with or Controlled by any such employee, manager, stockholder, director, member, partner, officer, attorney, counsel, customer, supplier or other Person, or (iv) any member of the immediate family (including grandchildren or siblings) of a person described in clauses (i), (ii) or (iii) immediately above.

(114) “ Intercreditor Agreement ” has the meaning assigned to such term in Section 12.28 .

(115) “ Interest Allocation ” has the meaning assigned to such term in Section 2.1(2)(a) .

(116) “ Interest Period ” means, with respect to any Eurodollar Loan, each period commencing on the date such Eurodollar Loan is made or Converted from a Base Rate Loan or (in the event of a Continuation) the last day of the immediately preceding Interest Period for such Loan and ending on the numerically corresponding day fourteen (14) days thereafter or in the first, second, third or sixth calendar month thereafter, as Borrower may select as provided in Section 2.8(5) ; provided that (a) each Interest Period that commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month; (b) each Interest Period that would otherwise end on a day that is not a Business Day shall end on the next succeeding Business Day (or, if such next succeeding Business Day falls in the next succeeding calendar month, on the immediately preceding Business Day); (c) except for an Interest Period having a duration of fourteen (14) days, no Interest Period shall have a duration of less than one month and, if the Interest Period for any Eurodollar Loan would otherwise be a shorter period, such Loan shall bear interest at the Base Rate plus the Applicable Margin for Base Rate Loans; (d) in no event shall any Interest Period extend beyond the Maturity Date; and (e) there may be no more than five (5) separate Interest Periods in respect of Eurodollar Loans outstanding from each Lender at any one time.

(117) “ Interest Reserve Fund ” has the meaning assigned to such term in Section 4.4(1) .

(118) “ Involuntary Proceeding ” has the meaning assigned to such term in Section 10.9 .

(119) “ Joinder ” means the Joinder attached hereto.

(120) “ Joinder Party ” means the Persons executing the Joinder, including Galbut, Menin, Frohlich and Morgans LLC.

(121) “ Junior Loan Intercreditor Agreement ” means that certain Subordination and Standstill Agreement dated as of the date hereof, by and among Mortgage Borrower, Borrower, Junior Mezzanine Borrower, Junior Mezzanine Lender, Mortgage Lender and the Administrative Agent.

(122) “ Junior Mezzanine Borrower ” means 1100 West Holdings II, LLC, a Delaware limited liability company.

(123) “ Junior Mezzanine Lender ” means RMF Capital LLC, a Delaware limited liability company, and any assignee of RMF Capital LLC permitted under the Junior Loan Intercreditor Agreement, each in its capacity as the lender under the Junior Mezzanine Loan.

(124) “ Junior Mezzanine Loan ” means a loan to Junior Mezzanine Borrower in the original principal amount of at least $22,500,000 (inclusive of the sum of $16,500,000.00, which has been funded as of the date hereof), made pursuant to that certain Mezzanine Loan Agreement dated as of the date hereof by and between Junior Mezzanine Borrower, as borrower, and Junior Mezzanine Lender, as lender; it being agreed that, at the election of the Junior Mezzanine Borrower and the Junior Mezzanine Lender, the amount of the Junior Mezzanine Loan may be increased from time to time as necessary to pay the costs of the Building Conversion and to fund Debt Service and other payments due under the Loan Documents and the Mortgage Loan Documents).

(125) “ Lender ” or “ Lenders ” have the meaning assigned in the Recitals.

(126) “ Lender Parties ” has the meaning assigned in Section 17 .

(127) “ LIBOR Rate ” or “ Libor Rate ” means, for any Interest Period for any Eurodollar Loan, the rate per annum appearing on Reuters Screen LIBOR01 (formerly operated as Page 3750 of the Dow Jones Market Service (Telerate)) (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m. London time on the date two (2) Business Days prior to the first day of such Interest Period as the rate for the offering of Dollar deposits having a term comparable to such Interest Period, provided that if such rate does not appear on such page, or if such page shall cease to be publicly available, or if the information contained on such page, in the reasonable judgment of Administrative Agent shall cease accurately to reflect the rate offered by leading banks in the London interbank market as reported by any publicly available source of similar market data selected by Administrative Agent, the LIBOR Rate for such Interest Period shall be determined from such substitute financial reporting service as Administrative Agent in its discretion shall determine.

(128) “ Licenses ” means any and all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits, required under Applicable Laws for the use, occupancy and operation of the Project as hotel condominium in the manner contemplated following Construction Completion.

(129) “ Lien ” means any interest, or claim thereof, in the Project or Collateral securing an obligation owed to, or a claim by, any Person other than the owner of the Project or Collateral, whether such interest is based on common law, statute or contract, including the lien or security interest arising from a deed of trust, mortgage, assignment, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term “ Lien ” shall include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting the Project.

(130) “ Liquidation Event ” has the meaning assigned to such term in Section 2.4(8) .

(131) “ Loan Documents ” means, individually or collectively: (a) this Agreement (including the Joinder hereto), (b) the Notes, (c) the Assignment of Forward Purchase Contract, (d) the Hazardous Substance Indemnity Agreement, (e) the Minimum Equity Guarantee, (f) the Hotel Manager’s Consent, (g) the Project Manager’s Consent, (h) the Completion Guarantee, (i) the Hedge Agreement Pledge, (j) such assignments of management agreements, contracts and other rights as may be required or requested by the Administrative Agent, (k) all other documents evidencing, securing, governing or otherwise pertaining to the Loans, and (l) all amendments, modifications, renewals, substitutions and replacements of any of the foregoing.

(132) “ Loan Transactions ” has the meaning assigned to such term in Section 2.8(4) .

(133) “ Loan Year ” means the period between the date hereof and August 31, 2009, for the first Loan Year and the period between each succeeding September 1 and August 31, until the Maturity Date.

(134) “ Loans ” means the loans to be made by the Lenders to Borrower under this Agreement and all other amounts evidenced or secured by the Loan Documents.

(135) “ Majority Lenders ” means Lenders holding at least 66.67% of the aggregate outstanding principal amount of the Loans or, if the Loans shall not have been made, at least 66.67% of the Commitments.

(136) “ Major Modification ” means any modification to a Purchase Contract which (1) modifies in any manner the purchase price set forth therein; (2) reopens, reinstates or in any manner lengthens any applicable rescission period; (3) modifies the amount and/or timing of any deposit required thereunder; (4) extends or otherwise changes in any material respect the closing date set forth therein; (5) releases or otherwise consents to an assignment or transfer of the obligations of the named purchaser thereunder; (6) increases or modifies the Standard Unit Finish (unless the purchaser agrees in writing to pay the costs of such increases or modifications); or (7) otherwise materially modifies the terms of such Purchase Contract.

(137) “ Mandatory Net Operating Cash Flow Installments ” has the meaning assigned to such term in Section 2.4(4) .

(138) “ Material Adverse Effect ” means a material adverse effect, as unilaterally determined by the Administrative Agent, in its reasonable judgment and discretion, on (a) the Project or the business, operations, financial condition, prospects, liabilities or capitalization of Borrower, (b) the ability of Borrower, to perform its obligations under any of the Loan Documents to which it is a party, including the timely payment of the principal of or interest on the Loans or other amounts payable in connection therewith, (c) the ability of any other Borrower Party to perform its obligations under any of the Loan Documents to which it is a party, (d) the validity or enforceability of any of the Loan Documents, or (e) the rights and remedies of the Administrative Agent and the Lenders under any of the Loan Documents.

(139) “ Maturity Date ” means the earlier of (a) the Original Maturity Date, as such date may extended by the First Extension Period, the Second Extension Period, the Third Extension Period, the Fourth Extension Period, and the Fifth Extension Period, as applicable, and (b) any earlier date on which all of the Loans are required to be paid in full, by acceleration or otherwise, under this Agreement or any of the other Loan Documents.

(140) “ Menin ” means Keith Menin, an individual.

(141) “ Minimum Equity Guarantee ” means that certain Minimum Equity Guarantee executed by Galbut, Menin, Frohlich and Morgans LLC in favor of the Administrative Agent (on behalf of the Lenders) as the same may be modified, amended, and/or supplemented and in effect from time to time.

(142) “ Minimum Sales Price ” means the minimum sales price for the sale of a Unit, as set forth on the Minimum Sales Price Schedule.

(143) “ Minimum Sales Price Schedule ” means Schedule 1(b) attached hereto and made a party hereof.

(144) “ Model Purchase Contract ” means the form of purchase contract for the sale of Units which shall be received and approved by the Administrative Agent, which approval shall not be unreasonably withheld.

(145) “ Mold ” has the meaning assigned to such term in Section 5.1(6) .

(146) “ MMI ” means Mondrian Miami Investment LLC, a Delaware limited liability company.

(147) “ Morgans LLC ” means Morgans Group LLC, a Delaware limited liability company.

(148) “ Morgans Public ” means the Morgans Hotel Group Co., a Delaware corporation.

(149) “ Mortgage ” means that certain that certain Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents dated as of August 8, 2006, recorded August 8, 2006, in Official Records Book 24801, at Page 3306, of the Public Records of Miami-Dade County, Florida, as modified by that certain First Amendment to Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents, dated as of December 19, 2006, recorded December 20, 2006, in Official Records Book 25210, at Page 3790, of the Public Records of Miami-Dade County, Florida, as further modified by that certain Second Amendment to Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents dated as of September 6, 2007, recorded September 21, 2007, in Official Records Book 25944, at Pages 2682-2691, of the Public Records of Miami-Dade County, Florida, as further modified by that certain Third Amendment to Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents dated as of April 25, 2008, recorded April 28, 2008, in Official Records Book 26347, at Pages 3527-3536, of the Public Records of Miami-Dade County, Florida, and as further modified by that certain Fourth Amendment to Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents dated as of the Amendment Closing Date, to be recorded in the Public Records of Miami-Dade County, Florida on or about the date hereof.

(150) “ Mortgage Borrower ” shall mean 1100 West Properties, LLC, a Delaware limited liability company.

(151) “ Mortgage Debt Service ” shall mean, with respect to any particular period of time, aggregate interest, fixed principal and other payments due under the Mortgage Note for such period.

(152) “ Mortgage Lender ” shall mean Eurohypo AG, New York Branch and each lender that is a “Lender” pursuant to the terms of the Mortgage Loan Agreement.

(153) “ Mortgage Loan ” has the meaning assigned to such term in the Recitals.

(154) “ Mortgage Loan Administrative Agent ” shall have the meaning assigned to “Administrative Agent” in the Mortgage Loan Agreement.

(155) “ Mortgage Loan Agreement ” has the meaning assigned to such term in the Recitals.

(156) “ Mortgage Loan Documents ” shall mean all documents or instruments evidencing, securing or guaranteeing the Mortgage Loan, including without limitation, the Mortgage Loan Agreement.

(157) “ Mortgage Loan Event of Default ” shall have the meaning ascribed to the term “Event of Default” in the Mortgage Loan Agreement.

(158) “ Mortgage Note ” shall mean, collectively, Amended and Restated Substitute Promissory Note A-1, Amended and Restated Substitute Promissory Note A-2 and Amended and Restated Substitute Promissory Note B, each dated as of the date hereof, as the same may be consolidated, replaced, severed, modified, amended or extended from time to time.

(159) “ Net Liquidation Proceeds After Debt Service ” shall mean, with respect to any Liquidation Event, all amounts paid to or received by or on behalf of Mortgage Borrower in connection with such Liquidation Event, including, without limitation, proceeds of any sale, refinancing or other disposition or liquidation, less (i) in the event of a Liquidation Event consisting of a Casualty or Condemnation, Administrative Agent’s, Lenders’ and/or Mortgage Lender’s reasonable costs incurred in connection with the recovery thereof, (ii) in the event of a Liquidation Event consisting of a Casualty or Condemnation, the costs incurred by Mortgage Borrower in connection with a restoration of all or any portion of the Project made in accordance with the Mortgage Loan Documents, (iii) in the event of a Liquidation Event consisting of a Casualty or Condemnation or a transfer, amounts required or permitted to be deducted therefrom and amounts paid pursuant to the Mortgage Loan Documents to Mortgage Lender, (iv) in the event of a Liquidation Event consisting of a Casualty or Condemnation, those proceeds paid to Mortgage Borrower pursuant to Section 7.3 of the Mortgage, (v) in the case of a foreclosure sale, disposition or transfer of the Project in connection with realization thereon following a Mortgage Loan Event of Default, such reasonable and customary costs and expenses of sale or other disposition (including attorneys’ fees and brokerage commissions), (vi) in the case of a foreclosure sale, such costs and expenses incurred by Mortgage Lender under the Mortgage Loan Documents as Mortgage Lender shall be entitled to receive reimbursement for under the terms of the Mortgage Loan Documents and (vii) in the case of a refinancing of the Mortgage Loan, such costs and expenses (including attorneys’ fees) of such refinancing, and (vii) the amount of any prepayments required pursuant to the Mortgage Loan Documents in connection with any such Liquidation Event.

(160) “ Net Operating Cash Flow ” has the meaning assigned to such term in the Cash Management Agreement.

(161) “ Net Operating Income ” means the amount by which Adjusted Operating Revenues exceed Adjusted Operating Expenses.

(162) “ Net Sales Proceeds ” means the Purchase Price of each Unit (and any Parking Space sold separately from a Unit, which Parking Space may only be sold with the prior written consent of Administrative Agent) less :

(a) any sales or any brokerage commissions or fees (including fees to Borrower or any Borrower Party) actually incurred in connection with the sale of such Unit and documented to the reasonable satisfaction of the Administrative Agent;

(b) closing costs and prorations actually incurred in connection with the sale of such Unit and documented to the reasonable satisfaction of the Administrative Agent (which closing costs and prorations shall include such items as title insurance costs, real estate transfer taxes, documentary stamp taxes, intangible taxes, attorneys’ fees, property taxes and homeowner’s association fees);

(c) with respect to any Unit, the cost of any “above standard” improvements or upgrades to such Unit which are actually incurred and paid by Borrower, other than the costs of “above standard” improvements or upgrades to such Unit for which Borrower receives reimbursement separate from the Purchase Price, including reimbursement from the purchaser of such Unit or from sources other than the Loan or the Construction Completion Fund (as defined in the Mortgage Loan Agreement) (but only to the extent that the foregoing costs were paid for with disbursements of the proceeds of the Mortgage Loan or the Loans prior to the Amendment Closing Date);

(d) with respect to any Unit which is sold at a Purchase Price equal to or greater than the Minimum Sales Price for such Unit, an allowance by Unit type for the Standard Unit Finish, which allowance shall be previously approved by Administrative Agent, not to exceed, on average, $38,000 (but only to the extent that the foregoing allowances were paid for with disbursements of the proceeds of the Mortgage Loan or the Loans prior to the Amendment Closing Date); and

(e) the amount of the Franchise Fee payable with respect to the sale of such Unit and any accrued and unpaid Franchise Fee payable in connection with the sale of any previously sold Unit.

In no event shall the amounts in clauses (a), (b) and (c) above be deducted from the Purchase Price unless Borrower or Mortgage Borrower provides evidence satisfactory to the Administrative Agent of Borrower’s or Mortgage Borrower’s payment of such amounts at the time of each closing of the Unit together with any Parking Space sold in connection with such Unit. In no event, unless approved by the Administrative Agent as provided in Section 9.7(2) , shall (1) any fees or commissions be paid to Borrower or Mortgage Borrower or any Affiliate of Borrower or Mortgage Borrower from the gross sales proceeds be in excess of fees and commissions in the amount customarily charged in connection with hotel condominium unit sales in the City of Miami Beach, Miami-Dade County, Florida area, or (2) any commissions, brokerage fees and/or closing costs exceed what is reasonable and customary in the industry.

Notwithstanding any provision of this Agreement to the contrary, for all Units in the Project, the maximum total per Unit, together with any Parking Space sold in connection with such Unit, of the amounts in (a), (b) and (e) above (collectively, the “ Controlled Closing Costs ”) shall be nine and one-quarter percent (9.25%) of the Purchase Price of such Unit and any Parking Space sold in connection with such Unit (the “ Related Parking Space ”); provided , however , that the Controlled Closing Costs for any such Unit and Related Parking Space may exceed nine and one-quarter percent (9.25%) of the Purchase Price of such Unit and Related Parking Space, so long as (i) the average of Controlled Closing Costs for such Unit and Related Parking Space and all other such Units and Related Parking Spaces previously sold and closed does not exceed nine and one-quarter percent (9.25%) of the Purchase Prices of such Units and Related Parking Spaces, and (ii) upon the sale of all remaining Units having a Purchase Price equal to or greater than the respective Minimum Sales Prices, the average of Controlled Closing Costs for all such Units and Related Parking Spaces will not exceed nine and one-quarter percent (9.25%) of the Purchase Prices of all such Units and Related Parking Spaces. Controlled Closing Costs shall not include Special Credits or other “special” or “promotional” credits or concessions granted to the purchaser of such Unit, so long as the sum of all Special Credits and such other “special” or “promotional” credits and concessions do not, in the aggregate, exceed the amount by which the Purchase Price for such Unit exceeds the Minimum Sales Price therefor.

No corporate overhead or developer’s fees may be paid or advanced from sales proceeds of Units.

(163) “ Note ” means that certain Promissory Note dated as of the Original Closing Date as provided for in Section 2.1(6) and all promissory notes delivered in substitution or exchange therefore, in each case as the same may be consolidated, replaced, severed, modified, amended or extended from time to time.

(164) “ OFAC ” means the Office of Foreign Assets Control, United States Department of the Treasury, or any other office, agency or department that succeeds to the duties of OFAC.

(165) “ Operating Expenses ” means, with respect to any period, all reasonable and necessary expenses of operating the Project in the ordinary course of business which are paid in cash by Mortgage Borrower or Borrower and which are directly associated with and fairly allocable to the Project for the such period, including ad valorem real estate taxes and assessments (to the extent not paid from the Tax and Insurance Reserve Fund), insurance premiums, maintenance costs (including common area maintenance costs), accounting, legal and other professional fees, fees relating to environmental audits, expenses incurred by the Administrative Agent and reimbursed by Borrower or Mortgage Borrower under this Agreement, the other Loan Documents or the Mortgage Loan Documents, deposits to any capital replacement reserves required by the Administrative Agent, wages, salaries and personnel expenses, fees and expenses incurred or paid by Mortgage Borrower under the Project Management Agreement, fees and expenses incurred or paid by Mortgage Borrower under the Technical Services Agreement, fees and expenses incurred or paid by Mortgage Borrower under the Hotel Management Agreement and deposits to any reserves required under the Hotel Management Agreement, but excluding Debt Service, capital expenditures, any of the foregoing expenses which are paid from deposits to cash reserves previously included as Operating Expenses, any payment or expense for which Borrower or Mortgage Borrower was or is to be reimbursed from proceeds of the Loans or Mortgage Loans or insurance or by any third party, and any non-cash charges such as depreciation and amortization. Any other expense payable to any Borrower Party or to any Affiliate of any Borrower Party shall be included as an Operating Expense only with the Administrative Agent’s prior approval. Operating Expenses shall not include federal, state or local income taxes or legal and other professional fees unrelated to the operation of the Project and shall exclude Building Conversion, sales and marketing expenses and other costs attributable or incurred for the purpose of the Building Conversion and the sale and marketing of Units for sale to third parties.

(166) “ Operating Revenues ” means, with respect to any period after the date hereof, all cash receipts of Mortgage Borrower from operation of the Project or otherwise arising in respect of the Project which are properly allocable to the Project for the such period, including receipts from leases, parking agreements and boat slip agreements, concession fees and charges and other miscellaneous operating revenues, proceeds from rental or business interruption insurance, proceeds of any loans (other than the Loans and any refinancing of the Loans) obtained by Mortgage Borrower after the date hereof which are secured by any interest in the Project or the Collateral (less only reasonable and customary expenses incurred in procuring and closing such loan and actually paid in cash to individuals or entities other than any Borrower Party or any Affiliate of any Borrower Party and without implying any consent of the Administrative Agent or any Lender to the granting of any security for any such loans), withdrawals or disbursements from any cash reserves (except to the extent any operating expenses paid therewith are excluded from Operating Expenses), but excluding security deposits and earnest money deposits, advance rentals until they are earned, proceeds from a sale or other disposition of all or any portion of the Project (including any proceeds from the sale of Units), insurance proceeds (other than from business interruption insurance), condemnation awards, and Net Sales Proceeds.

(167) “ Organizational Documents ” means, with respect to any Person who is not a natural person, the certificate or articles of incorporation, memorandum of association, articles of association, trust agreement, by-laws, partnership agreement, limited partnership agreement, certificate of partnership or limited partnership, limited liability company articles of organization, limited liability company operating agreement or any other organizational document, and all shareholder agreements, voting trusts and similar arrangements with respect to its stock, partnership interests, membership interests or other equity interests.

(168) “ Original Closing Date ” means April 25, 2008.

(169) “ Original Maturity Date ” means August 1, 2009.

(170) “ Parking Space ” or “ Parking Spaces ” means any one or more of the parking spaces located on the Project.

(171) “ Partial Release Conditions ” has the meaning assigned to such term in the Mortgage Loan Agreement.

(172) “ Participant ” has the meaning assigned to such term in Section 12.24(3) .

(173) “ Parking Space Release Price ” means with respect to Parking Spaces which are sold separately from a Unit, the greater of (a) ninety-five percent (95%) of the gross proceeds from the sale of such Parking Space, and (b) one hundred percent (100%) of the Net Sales Proceeds from the sale of such Parking Space (provided, however, that Net Sales Proceeds from the sale of such Parking Space shall be determined without any deduction for items described in clauses (c) and (d) of the definition of Net Sales Proceeds.

(174) “ Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as the same may be amended from time to time, and corresponding provisions of future laws.

(175) “ Patriot Act Offense ” means any violation of the criminal laws of the United States of America or of any of the several states, or that would be a criminal violation if committed within the jurisdiction of the United States of America or any of the several states, relating to terrorism or the laundering of monetary instruments, including any offense under (a) the criminal laws against terrorism; (b) the criminal laws against money laundering, (c) the Bank Secrecy Act, as amended, (d) the Money Laundering Control Act of 1986, as amended, or (e) the Patriot Act. “ Patriot Act Offense ” also includes the crimes of conspiracy to commit, or aiding and abetting another to comment, a Patriot Act Offense.

(176) “ Payment Date ” means the first Business Day of each calendar month.

(177) “ Payor ” has the meaning assigned to such term in Section 2.8(6) .

(178) “ Permitted Encumbrances ” has the meaning set forth in the Mortgage Loan Documents.

(179) “ Person ” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity.

(180) “ Plans and Specifications ” means the plans and specifications for the Building Conversion approved by the Administrative Agent as part of the overall review and approval of the Project by the Administrative Agent on or about the Original Closing Date.

(181) “ Pledge Agreement ” shall mean that certain Pledge and Security Agreement dated as of the Original Closing Date, executed and delivered by Borrower to Administrative Agent (for the benefit of Lenders) as security for the Loans, which covers one hundred percent (100%) of the limited liability interests of Borrower in Mortgage Borrower, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

(182) “ Pledged Member Interests ” shall mean all membership and manager interests in Mortgage Borrower.

(183) “ Post Occupancy Credit Escrow Fund ” has the meaning assigned in the Mortgage Loan Agreement.

(184) “ Potential Default ” means the occurrence of any event or condition which, with the giving of notice, or the passage of time, or both, would constitute an Event of Default.

(185) “ Prime Rate ” means the rate of interest from time to time announced by Eurohypo at its principal office as its prime commercial lending rate, it being understood that such prime commercial rate is a reference rate and does not necessarily represent the lowest or best rate being charged by Eurohypo to any customer.

(186) “ Project ” means “Mondrian South Beach,” a luxury hotel condominium development containing 335 hotel condominium units and 177 parking spaces, located in Miami Beach, Florida, including related amenities, a restaurant, parking facilities, fixtures, and personal property owned by Mortgage Borrower or Borrower, the Mortgage Borrower’s interest in the Boat Slips, and any Improvements now or hereafter located on the real property described in Exhibit A , excepting therefrom any and all Units validly released from the Lien of the Mortgage pursuant to the terms of the Loan Documents and the Mortgage Loan Documents.

(187) “ Project Budget ” means the budget for the Building Conversion and all other costs and expenses of the Project, including, furniture, fixtures and equipment, interest expense, and also including the sources and uses of funds, attached hereto as Schedule 8.4(2).

(188) “ Project Manager ” means Sanctuary Management or another project manager acceptable to the Administrative Agent.

(189) “ Project Manager’s Consent ” means the Project Manager’s Consent and Subordination Agreement delivered by the Project Manager and Borrower to the Administrative Agent (on behalf of the Lenders) on the Original Closing Date, as the same may be modified, amended and/or supplemented and in effect from time to time.

(190) “ Project Management Agreement ” means that certain Project Management Agreement dated as of August 7, 2006 between Mortgage Borrower and Project Manager.

(191) “ Public Offering Statement ” means that certain “Prospectus for 1100 West, a Condominium,” as amended, having Florida Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes Identification No. PR74541, as the same has been approved pursuant to the Condominium Act.

(192) “ Purchase Contract ” means a purchase and sale contract, including any addenda thereto, between a third party purchaser and Mortgage Borrower or Borrower with respect to the sale of a Unit (which contract may also provide for the sale of one or more Parking Spaces or Boat Slips).

(193) “ Purchase Price ” means the gross sales price received from a Purchase Contract.

(194) “ Qualified Purchase Contract ” means a Purchase Contract which (a) is in the form of the Model Purchase Contract with all Major Modifications approved by Administrative Agent; (b) is between Mortgage Borrower and a purchaser that is not an Affiliate of Borrower or Mortgage Borrower; (c) has been fully executed and delivered by all of the parties thereto and constitutes a legally enforceable, unconditional contract which contains no contingencies (other than a financing contingency) or other unexpired rescission or termination provision or period; (d) is in compliance with the Condominium Act and all applicable rules and regulations; (e) is not subject to rescission or avoidance by the purchaser thereunder as a result of Mortgage Borrower’s failure to comply with the disclosure requirements of the Condominium Act; (e) is not the subject of a default by Mortgage Borrower or the purchaser; (f) except for such amounts which may be refundable pursuant to a contingency or failure of condition, is the subject of a paid non-refundable deposit of at least three percent (3%) of the Purchase Price ( provided , however , with respect to all cash deals, such deposit must be at least 5% and for deals which will be 100% financed, such deposit must be at least $2,500) and such sum is held in compliance with the requirements of the Mortgage Loan Agreement; (g) without limiting the provisions of Section 9.15 , specifies a Purchase Price equal to or greater than the applicable Minimum Sales Price; and (h) if it is to be financed by a third party lending institution, then the purchaser thereunder has received “pre-approval” for a mortgage by an FNMA-approved lender. Such “pre-approval” means that such lender has reviewed and approved purchaser’s credit, income, and funds to close and final approval is contingent only upon (i) lender obtaining an appraisal, (ii) the purchaser providing documentation to evidence representations made to lender, and (iii) other typical and customary closing requirements of such FNMA approved lender.

(195) “ Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System of the United States of America (or any successor), as the same may be modified and supplemented and in effect from time to time.

(196) “ Regulatory Change ” means, with respect to any Lender, any change after the date hereof in Federal, state or foreign law or regulations (including, without limitation, Regulation D) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks including such Lender of or under any Federal, state or foreign law or regulations (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any court or governmental or monetary authority charged with the interpretation or administration thereof.

(197) “ Related Entity ” means, as to any Person, (a) any Affiliate of such Person; (b) any other Person into which, or with which, such Person is merged, consolidated or reorganized, or which is otherwise a successor to such Person by operation of law, or which acquires all or substantially all of the assets of such Person; (c) any other Person which is a successor to the business operations of such Person and engages in substantially the same activities; or (d) any Affiliate of the Persons described in clauses (b) and (c) of this definition.

(198) “ Requesting Lender ” has the meaning assigned to such term in Section 2.9(7) .

(199) “ Required Payment ” has the meaning assigned to such term in Section 2.8(6) .

(200) “ Reserve Account Collateral ” has the meaning assigned to such term in Section 4.5(1) .

(201) “ Reserve Requirement ” means, for any Interest Period for any Eurodollar Loan, the average maximum rate at which reserves (including, without limitation, any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the Federal Reserve System in New York City with deposits exceeding $1,000,000,000 against “Eurocurrency liabilities” (as such term is used in Regulation D). Without limiting the effect of the foregoing, the Reserve Requirement shall include any other reserves required to be maintained by such member banks by reason of any Regulatory Change with respect to (a) any category of liabilities that includes deposits by reference to which the LIBOR Rate for any Interest Period for any Eurodollar Loans is to be determined as provided in the definition of “LIBOR Rate” or (b) any category of extensions of credit or other assets that includes Eurodollar Loans. The calculation of the Reserve Requirement by Lenders shall be substantially similar to the calculation of the Reserve Requirement performed by Lenders with respect to similar classes of commercial loans or commitments made by such Lenders.

(202) “ Restaurant Lease ” means that certain Lease dated as of August 12, 2008 between Mortgage Borrower, as landlord, and MC South Beach LLC, as tenant.

(203) “ S&P ” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.

(204) “ Sanctuary Avenue ” means Sanctuary West Avenue, LLC, a Delaware limited liability company.

(205) “ Sanctuary Holdings ” means Sanctuary West Holdings, LLC, a Delaware limited liability company.

(206) “ Sanctuary Management ” mean Sanctuary West Management LLC, a Delaware limited liability company.

(207) “ Scheduled Release Price ” means, with respect to the applicable Unit, the release price with respect thereto as set forth on the Unit Release Schedule.

(208) “ Second Extension Notice ” has the meaning assigned to such term in Section 2.5(2)(a) .

(209) “ Second Extension Period ” has the meaning assigned to such term in Section 2.5(2) .

(210) “ Secured Indebtedness ” means:

(a) all Debt of Borrower under the Loan Documents;

(b) any and all future advances made pursuant to the Loan Documents by the Lenders to or for the benefit of Borrower direct or indirect, together with interest, fees, costs, and other amounts hereafter arising;

(c) the full and prompt payment and performance of any and all other Debt, obligations and covenants of Borrower to Administrative Agent and the Lenders including, but not limited to, the obligation to pay all amounts under the terms of any other agreements, assignments or other instruments now or hereafter evidencing, securing or otherwise relating to the indebtedness evidenced by the Loan Documents, including, without limitation, any assignment of rents and leases given by Borrower to Administrative Agent (on behalf of the Lenders); and

(d) any and all additional advances made by Administrative Agent or the Lenders to protect or preserve the Collateral or the Project or the Liens created by the Loan Documents on the Collateral, or to pay taxes, to pay premiums on insurance on the Collateral or the Project or to repair or maintain the Collateral or the Project (whether or not Borrower or Mortgage Borrower remains the owner of the Collateral or the Secured Property at the time of such advances and whether or not the original Administrative Agent or the Lenders remains the owner of the Secured Indebtedness.

(211) “ Single Purpose Entity ” means a corporation, limited partnership or limited liability company which at all times on and after the date hereof while the obligations hereunder and under the other Loan Documents remain outstanding, unless otherwise approved in writing by the Administrative Agent:

(a) is organized solely for the purpose of one of the following (i) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Pledged Member Interests, entering into this Agreement, refinancing the Pledged Member Interests in connection with a permitted repayment of the Loans, and transacting any and all lawful business that is incident, necessary and appropriate to accomplish the foregoing, (ii) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Project, entering into the Mortgage Loan Agreement, refinancing the Project in connection with a permitted repayment of the Loans, and transacting any and all lawful business that is incident, necessary and appropriate to accomplish the foregoing or (ii) acting as a managing member of Borrower or the sole managing member of Mortgage Borrower;

(b) is not engaged and will not engage in any business unrelated to (i) the acquisition, development, ownership, management or operation of the Pledged Member Interests or Project or (ii) acting as a managing member of Borrower or the sole managing member of Mortgage Borrower

(c) does not have and will not have any assets other than those related to (i) the Project, (ii) the Pledged Member Interests, or (iii) its membership interest in Borrower;

(d) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or any amendment of its articles of incorporation, by-laws, limited partnership certificate, limited partnership agreement, articles of organization, certificate of formation or operating agreement (as applicable) with respect to the matters set forth in this definition;

(e) shall not, without the consent of all of its managers and members: (a) dissolve, merge, liquidate or consolidate; (b) sell all or substantially all of its assets or the assets of any other entity in which it has a direct or indirect legal or beneficial ownership interest; (c) engage in any other business activity, other than as permitted pursuant to the Loan Documents, or amend its organizational documents with respect to the matters set forth in this definition without the consent of the Administrative Agent; or (d) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest or is the direct or indirect general partner, manager or managing member;

(f) in the case of Borrower, has at least one (1) Independent Manager, and in the case of Mortgage Borrower, has only one member which is Borrower;

(g) is and will remain solvent and pay its debts and liability (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due, and is maintaining and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(h) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

(i) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, except to the extent that it is required to file consolidated tax returns by law;

(j) has not commingled and will not commingle its funds or assets with those of any other Person;

(k) has held and will hold its assets in its own name;

(l) has maintained and will maintain financial statements that properly and accurately show its separate assets and liabilities and do not show the assets or liabilities of any other Person, and has not permitted and will not permit its assets to be listed as assets on the financial statement of any other entity;

(m) has paid and will pay its own liabilities and expenses, including, but not limited to, the salaries of its own employees (if any), out of its own funds and assets, and has maintained and will maintain a sufficient number of employees in light of its contemplated business operations;

(n) has observed and will observe all corporate, partnership or limited liability company formalities, as applicable;

(o) has not incurred and will not incur any Debt other than (i) in the case of Mortgage Borrower, (A) the Mortgage Loan and (B) trade and operational debt which is (1) incurred in the ordinary course of business, (2) not more than ninety (90) days past the date of invoice, (3) with trade creditors, (4) in the aggregate, in an amount less than $500,000.00, (5) not evidenced by a note, and (6) paid when due, and (ii) in the case of Borrower, the Loans;

(p) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except as permitted pursuant to this Agreement;

(q) has not and will not acquire obligations or securities of its members or shareholders or any other affiliate (other than interests in the Borrower held by MMI and Sanctuary Avenue);

(r) has allocated and will allocate fairly and reasonably any overhead expenses that are shared with an affiliate, including, but not limited to, paying for shared office space and services performed by any officer or employee of an affiliate;

(s) maintains and uses and will maintain and use separate invoices and checks bearing its name. The stationary, invoices, and checks utilized by the Single Purpose Entity or utilized to collect its funds or pay its expenses shall bear its own name and shall not bear the name of any other entity unless such entity is clearly designated as being the Single Purpose Entity’s agent;

(t) except in connection with the Loans, has not pledged and will not pledge its assets for the benefit of any other Person;

(u) has conducted business, held itself out and identified itself and will conduct business, hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by a Person other than an affiliate of Borrower and not as a division or part of any other Person;

(v) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(w) has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other Person (other than cash and securities issued by an entity that is not an affiliate or subject to common ownership with such entity);

(x) has not identified and will not identify its partners, members or shareholders, or any affiliate of any of them, as a division or part of it, and has not identified itself and shall not identify itself as a division of any other Person;

(y) except as expressly permitted in the Loan Documents, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or affiliates except in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;

(z) has not and will not have any obligation to indemnify its partners, officers, directors or members, as the case may be, unless such obligation is fully subordinated to the Secured Indebtedness and will not constitute a claim against it in the event that, prior to the payment of the Secured Indebtedness, cash flow is insufficient to pay such obligation;

(aa) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all corporate actions; and

(bb) except as expressly permitted in the Loan Documents, does not and will not have any of its obligations guaranteed by any Affiliate.

(212) “ Site Assessment ” means an environmental engineering report for the Project prepared by an engineer engaged by the Administrative Agent at Mortgage Borrower’s or Borrower’s expense, and in a manner satisfactory to the Administrative Agent, based upon an investigation relating to and making appropriate inquiries concerning the existence of Hazardous Materials on or about the Project, and the past or present discharge, disposal, release or escape of any such substances, all consistent with good customary and commercial practice.

(213) “ Special Advance Lender ” has the meaning assigned to such term in Section 15.12(1) .

(214) “ Special Credits ” means special credits for loan origination and closing costs extended to the purchaser of a Unit in an amount which does not, in the aggregate, exceed the amount by which the Purchase Price exceeds the Minimum Sales Price for such Unit.

(215) “ Standard Unit Finish ” means those standard improvements established by Mortgage Borrower (with the approval of Administrative Agent), which shall be completed in any Unit prior to or after closing of the sale of such Unit.

(216) “ State ” means the State of Florida.

(217) “ Survey ” means that certain ALTA/ASCM Land Title Survey dated as of June 19, 2006, revised July 28, 2006, prepared by J. Bonfill & Associates, Inc., under Project 04-0468, Job 06-0411.

(218) “ Taxes ” has the meaning assigned to such term in Section 9.2 .

(219) “ Technical Services Agreement ” means that certain Technical Services Agreement between Mortgage Borrower and Hotel Manager dated as of the Original Closing Date with respect to the delivery of certain consultation and other technical services relating to the Project.

(220) “ Third Extension Notice ” has the meaning assigned to such term in Section 2.5(3)(a) .

(221) “ Third Extension Period ” has the meaning assigned to such term in Section 2.5(3) .

(222) “ Threshold Amount ” means $1,000,000.00.

(223) “ Type ” has the meaning assigned in Section 1.2 .

(224) “ UCC Insurance Policy ” shall mean an insurance policy issued by a title company acceptable to Lender in the form acceptable to Lender issued with respect to the Pledged Member Interests.

(225) “ Unavoidable Delay ” means any delay due to strikes, acts of God, fire, earthquake, floods, explosion, actions of the elements, other accidents or casualty, declared or undeclared war, riots, mob violence, acts of terrorism, inability to procure or a general shortage of labor, equipment, facilities, energy, materials or supplies in the open market, failure of transportation, lockouts, tenant delays, actions of labor unions, condemnation, court orders, laws, rules, regulations or orders of Governmental Authorities, or other cause beyond the reasonable control of Borrower; provided that, in each of the foregoing cases, (a) Borrower gives notice of such delay to the Administrative Agent within two (2) days of occurrence of the event resulting in such delay and, after the initial notification, promptly after request of the Administrative Agent, notifies the Administrative Agent of the status of such delay, (b) after giving effect to the consequences of each such delay, the Loans shall not be Out of Balance (as defined in the Mortgage Loan Agreement) at any time despite such delay, (c) Borrower uses all commercially reasonable efforts to mitigate the delay caused by such event of Unavoidable Delay; and (d) the Administrative Agent acknowledges that such delay is due to one of the foregoing causes, which acknowledgment shall not be unreasonably withheld or delayed. For the purposes hereof, Unavoidable Delays shall not include delays caused by Borrower’s lack of or inability to procure monies to fulfill Borrower’s commitments and obligations under this Agreement or the other Loan Documents.

(226) “ Unit or Units ” means one or more of the 335 hotel condominium units created at the Project in connection with the Building Conversion.

(227) “ Unit Release Schedule ” means the schedule attached hereto as Schedule 1(c) , containing the Scheduled Release Price for each Unit.

(228) “ Unpaid Amount ” has the meaning assigned to such term in Section 15.12(2) .

(229) “ Unsold Units ” means the Units which have not been conveyed to third parties by Mortgage Borrower with corresponding release from the Lien of the Mortgage.

(230) “ Voluntary Proceeding ” has the meaning assigned to such term in Section 10.10 .

Section 1.2 Types of Loans. Loans hereunder are distinguished by “ Type ”. The “ Type ” of a Loan refers to whether such Loan is a Base Rate Loan or a Eurodollar Loan, each of which constitutes a Type.

ARTICLE 2

LOAN TERMS

Section 2.1 The Commitments, Loans and Notes.

(1)  Loans . Each Lender severally agrees, on the terms and conditions of this Agreement, to make a term loan to Borrower in Dollars in a principal amount up to but not exceeding the amount of the Commitment of such Lender. As of the date hereof, the outstanding principal balance of the Loans is $28,000,000.

(2)  Advances . The Loans shall be funded in one or more advances and repaid in accordance with this Agreement. Amounts borrowed hereunder and repaid may not be reborrowed.

(a) Provided an Event of Default shall not exist at such time and subject to satisfaction of the conditions set forth on Part A of Schedule 2.1 , Lenders shall make Loans from time to time in an aggregate amount of up to $1,953,629.58 (the “ Interest Allocation ”) for the purposes of paying accrued interest on the Loans and the Mortgage Loan. Provided no Potential Default or Event of Default shall exist at such time and subject to satisfaction of the conditions set forth on Part A of Schedule 2.1 , Lenders shall automatically make Loans for the payment of accrued interest, as aforesaid, and shall make the interest payments relating thereto directly to the Mortgage Lenders and the Administrative Agent, as the case may be, on the respective Payment Dates relating to the Mortgage Loan and the Loans, as the case may be.

(b) All Loans shall be shall be deemed a capital contribution by Borrower to Mortgage Borrower.

(3)  Lending Offices . The Loans of each Lender shall be made and maintained at such Lender’s Applicable Lending Office for Loans of such Type.

(4)  Several Obligations . The failure of any Lender to make any Loan to be made by it on the date specified therefor shall not relieve any other Lender of its obligation to make its Loan, but neither any Lender nor the Administrative Agent shall be responsible for the failure of any other Lender to make a Loan to be made by such other Lender.

(5)  Notes .

(a)  Loan Notes . The Loans made by each Lender shall be evidenced by the Note, made payable to such Lender in a principal amount equal to the aggregate amount of its advanced Commitment as originally in effect and otherwise duly completed.

(b)  Endorsements on Notes . The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each Loan made by each Lender to Borrower, and each payment made on account of the principal thereof, shall be recorded by such Lender on its books and, prior to any transfer of the Note held by it, endorsed by such Lender on the schedule attached to such Note or any continuation thereof; provided that the failure of such Lender to make any such recordation or endorsement shall not affect the obligations of Borrower to make a payment when due of any amount owing hereunder or under such Note in respect of such Loans.

(c)  Substitution, Exchange and Subdivision of Notes . No Lender shall be entitled to have its Notes substituted or exchanged for any reason, or subdivided for promissory notes of lesser denominations, except in connection with a permitted assignment of all or any portion of such Lender’s Commitment, Loans and Note pursuant to Sections 12.10 and 12.24 (and, if requested by any Lender, Borrower agrees in accordance with and subject to Sections 12.10 and 12.24 , to so substitute or exchange any Notes and enter into note splitter agreements in connection therewith).

(d)  Loss, Theft, Destruction or Mutilation of Notes . In the event of the loss, theft or destruction of any Note, upon Borrower’s receipt of a reasonably satisfactory indemnification agreement executed in favor of Borrower by the holder of such Note, or in the event of the mutilation of any Note, upon the surrender of such mutilated Note by the holder thereof to Borrower, together with such other reasonable assurances as Borrower may require, Borrower shall execute and deliver to such holder a new replacement Note, in the form of the original Note, in lieu of the lost, stolen, destroyed or mutilated Note.

(e)  Funding of Loans . Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will promptly make such Loans available to Borrower by wire transfer of immediately available funds to an account in the United States designated by Borrower.

Section 2.2 Conversions or Continuations of Loans.

(1) Subject to Sections 2.8(4) , 2.9(2) and 2.9(3) , Borrower shall have the right to Convert Loans of one Type into Loans of another Type or Continue Loans of one Type as Loans of the same Type, at any time or from time to time; provided that: (a) Borrower shall give the Administrative Agent notice of each such Conversion or Continuation as provided in Section 2.8(5) ; (b) Eurodollar Loans may be Converted only on the last day of an Interest Period for such Loans unless Borrower complies with the terms of Section 2.9(5) ; and (c) subject to Sections 2.9(1) and 2.9(3) , any Conversion or Continuation of Loans shall be pro rata among the Lenders. Notwithstanding the foregoing, and without limiting the rights and remedies of the Administrative Agent and the Lenders under Article 11 , in the event that any Event of Default exists, the Administrative Agent may (and at the request of the Majority Lenders shall) suspend the right of Borrower to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar Loan, for so long as such Event of Default exists, in which event all Loans shall be Converted (on the last day(s) of the respective Interest Periods therefor) or Continued, as the case may be, as Base Rate Loans. In connection with any such Conversion, a Lender may (at its sole discretion) transfer a Loan from one Applicable Lending Office to another.

(2) Notwithstanding anything to the contrary contained in this Agreement, at any time that a Hedge Agreement is in effect, Borrower shall not modify the Interest Period with respect to the principal amount equal to the notional amount under such Hedge Agreement.

Section 2.3 Interest Rate; Late Charge.

(1) Borrower promises to pay to the Administrative Agent for account of each Lender interest on the unpaid principal amount of each Loan (which may be the Base Rate Loans and/or Eurodollar Loans) made by such Lender for the period from and including the date of such Loan to but excluding the date such Loan shall be paid in full, at the following rates per annum:

(a) during such periods as such Loan is a Base Rate Loan, the Base Rate plus the Applicable Margin; and

(b) during such periods as such Loan is a Eurodollar Loan, for each Interest Period relating thereto, the Adjusted LIBOR Rate for such Loan for such Interest Period plus the Applicable Margin.

(2) Accrued interest on each Loan shall be payable (i) monthly in arrears on each Payment Date and (ii) in the case of any Loan, upon the payment or prepayment thereof or the Conversion of such Loan to a Loan of another Type (but only on the principal amount so paid, prepaid or Converted), except that interest payable at the Default Rate shall be payable from time to time on demand.

(3) Notwithstanding anything to the contrary contained herein, after the Maturity Date and during any period when an Event of Default exists, Borrower shall pay to the Administrative Agent for the account of each Lender interest at the applicable Default Rate on the outstanding principal amount of any Loan made by such Lender, any interest payments thereon not paid when due and on any other amount payable by Borrower hereunder, under the Notes and any other Loan Documents.

(4) Promptly after the determination of any interest rate provided for herein or any change therein, the Administrative Agent shall give notice thereof to the Lenders to which such interest is payable and to Borrower, but the failure of the Administrative Agent to provide such notice shall not affect Borrower’s obligation for the payment of interest on the Loans.

(5) In addition to any sums due under this Section 2.3 , Borrower shall pay to the Administrative Agent for the account of the Lenders a late payment premium in the amount of five percent (5%) of (i) any payments of principal under the Loans made and payable after the due date thereof (other than the repayment of the outstanding principal balance on the Maturity Date), and (ii) any payments of interest or other sums under the Loans made more than ten (10) days after the due date thereof, which late payment premium shall be due with any such late payment or upon demand by the Administrative Agent. Such late payment charge represents the reasonable estimate of Borrower and the Lenders of a fair average compensation for the loss that may be sustained by the Lenders due to the failure of Borrower to make timely payments. Such late charge shall be paid without prejudice to the right of the Administrative Agent and the Lenders to collect any other amounts provided herein or in the other Loan Documents to be paid or to exercise any other rights or remedies under the Loan Documents.

Section 2.4 Terms of Payment. Commencing on the Amendment Closing Date, the Loans shall be payable as follows:

(1)  Interest . Beginning on December 1, 2008, and on the Payment Date of each month thereafter, Borrower shall pay interest in arrears in accordance with the wire transfer instructions set forth on Schedule 2.4(1) attached hereto (or such other instructions as the Administrative Agent may from time to time provide) until all amounts due under the Loan Documents are paid in full.

(2)  Maturity . On the Maturity Date, Borrower shall pay to the Administrative Agent (on behalf of the Lenders) all outstanding principal, accrued and unpaid interest, and any other amounts due under the Loan Documents.

(3)  Optional Prepayments . Subject to the provisions of Sections 2.4(5) and 2.9(5) , Borrower shall have the right to prepay Loans in whole or in part, without premium or penalty; provided that: (a) Borrower shall give the Administrative Agent notice of each such prepayment as provided in Section 2.8(5) (and, upon the date specified in any such notice of prepayment, the amount to be prepaid shall become due and payable hereunder) and (b) partial prepayments shall be in the minimum aggregate principal amounts specified in Section 2.8(4) . Loans that are prepaid cannot be reborrowed. After giving notice of prepayment as provided in Section 2.8(5) , but prior to the date specified in any such notice of prepayment, such notice may be revoked by Borrower as long as Borrower pays within one (1) Business Day after notification from the Administrative Agent any amounts payable to a Lender pursuant to Section 2.9(5) as a result of any action taken by such Lender in reliance of such notice of prepayment. In addition, in the event the specified Loans subject to the prepayment revocation are Eurodollar Loans, such Eurodollar Loans may, at the Administrative Agent’s option, be converted to Base Rate Loans for the balance of the then current Interest Period.

(4)  Mandatory Prepayments . In the event that the Mortgage Loan is repaid in full prior to the Maturity Date, commencing upon the first Payment Date following such repayment and on each Payment Date thereafter, Borrower shall pay to Lender one hundred percent (100%) of the Net Operating Cash Flow (“ Mandatory Net Operating Cash Flow Installments ”) for the immediately preceding month. In addition, Borrower shall also make mandatory prepayments of principal as are required pursuant to Sections 14.4 and Section 14.5 .

(5)  Interest and Other Charges on Prepayment . If the Loans are prepaid, in whole or in part, pursuant to Section 2.4(3) or 2.4(4) , each such prepayment shall be made on the prepayment date specified in the notice to the Administrative Agent pursuant to Section 2.8(5) , and (in every case) together with (a) the accrued and unpaid interest on the principal amount prepaid, (b) the Exit Fee, (c) any amounts payable to a Lender pursuant to Section 2.9(5) as a result of such prepayment while an Adjusted LIBOR Rate is in effect, and (d) any early termination amounts due under any Hedge Agreement; provided , however , that any such prepayment shall be applied first , to the prepayment of any portions of the outstanding principal amount that are Base Rate Loans and, second , to the prepayment of any portions of the outstanding principal amount that are Eurodollar Loans applying such sums first to Eurodollar Loans of the shortest maturity so as to minimize breakage costs; provided further , however, that if an Event of Default exists, the Administrative Agent may distribute such payment to the Lenders for application in such manner as it or the Majority Lenders, subject to Section 2.8(2) , may determine to be appropriate.

(6)  Application of Payments . All payments received by the Administrative Agent under the Loan Documents shall be applied: first, to any fees and expenses due to the Administrative Agent and the Lenders under the Loan Documents; second, to any Default Rate interest or late charges; third, to accrued and unpaid interest on the Loans; and fourth, to the principal sum in accordance with Section 2.4(5) above and other amounts due under the Loan Documents; provided , however , that, if an Event of Default exists the Administrative Agent may apply such payments in any order or manner as the Administrative Agent shall determine.

(7)  Liquidation Events . (a) In the event of (i) any Casualty to all or any portion of the Project, (ii) any Condemnation of all or any portion of the Project, (iii) a transfer of the Project in connection with realization thereon by the Mortgage Loan Administrative Agent (on behalf of Mortgage Lender) following an Event of Default under the Mortgage Loan, including without limitation a foreclosure sale, or (iv) any refinancing of the Project or the Mortgage Loan (each, a “ Liquidation Event ”), Borrower shall cause the related Net Liquidation Proceeds After Debt Service to be deposited directly into an account designated by Administrative Agent. On each date on which Administrative Agent actually receives a distribution of Net Liquidation Proceeds After Debt Service, such Net Liquidation Proceeds After Debt Service shall be applied to the outstanding principal balance of the Notes in an amount equal to one hundred percent (100%) of such Net Liquidation Proceeds After Debt Service, together with interest that would have accrued on such amount through the next Payment Date and all other sums then due; provided, however, that so in the event Administrative Agent receives a distribution of Net Liquidation Proceeds After Debt Service on a date other than a Payment Date and so long as no Default or Event of Default shall have occurred and be continuing, if Borrower so requests in writing, such amounts shall be held by Administrative Agent as collateral security for the Loans in an interest bearing account, with such interest accruing to the benefit of Borrower, and shall be applied by Administrative Agent on the next Payment Date. Borrower shall immediately notify Administrative Agent of any Liquidation Event once Borrower has knowledge of such event. Borrower shall be deemed to have knowledge of (i) a sale (other than a foreclosure sale) of the Project on the date on which a contract of sale for such sale is entered into, and a foreclosure sale, on the date notice of such foreclosure sale is given, and (ii) a refinancing of the Project, on the date on which a commitment for such refinancing is entered into. The provisions of this Section 2.4(8) shall not be construed to contravene in any manner the restrictions and other provisions regarding refinancing of the Mortgage Loan or transfer of the Project set forth in this Agreement and the other Loan Documents.

(8)  Agency Fee . Until payment in full of all obligations under this Agreement and the other Loan Documents, Borrower shall pay to Administrative Agent, for its sole account, the Agency Fee in accordance with the Fee Letter.

(9)  Security. The Loans shall be secured by the Pledge Agreement creating a first Lien on the Collateral and the other Loan Documents.

Section 2.5 Extension of Maturity Date.

(1)  First Extension of Maturity Date. Borrower may, at its option, extend the term of the then outstanding principal amount for a period commencing on the Original Maturity Date and ending on August 1, 2010; provided , however , if such day is not a Business Day, such period shall be deemed to end the immediately preceding Business Day (the applicable period being, the “ First Extension Period ”), subject to the satisfaction of the following conditions:

(a) Borrower shall notify (the “ First Extension Notice ”) Administrative Agent of Borrower’s exercise of such option between thirty (30) and ninety (90) days prior to the Original Maturity Date;

(b) No Potential Default (of which Borrower has previously received notice) or Event of Default exists as of the giving of the First Extension Notice and/or as of the Original Maturity Date;

(c) Without limiting the provisions of Section 14.1(1) , Construction Completion shall have occurred;

(d) If the Hedge Agreement in effect at the time of Borrower’s giving of the First Extension Notice is scheduled to mature or expire prior to the end of the First Extension Period, Borrower shall have obtained and delivered to Administrative Agent not later than ten (10) Business Days prior to the first day of the First Extension Period one or more replacement Hedge Agreements which meet the requirements of Section 9.15 which shall be effective on or before the date the then effective Hedge Agreement is scheduled to mature or expire and shall have a maturity date not earlier than the end of the First Extension Period;

(e) Whether or not the extension becomes effective, Borrower shall pay all out-of-pocket costs and expenses incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including reasonable legal fees; all such costs and expenses shall be due and payable within ten (10) days of demand, and any failure to pay such amounts shall constitute a default under this Agreement and the Loan Documents;

(f) Not later than the Original Maturity Date, (i) the extension shall have been documented to the Lenders’ reasonable satisfaction and consented to by Borrower, Administrative Agent and all the Lenders, including the execution and delivery by the Guarantor of reaffirmations of its obligations under the Guaranty and (ii) if requested by the Administrative Agent, the Administrative Agent shall have been provided with an updated title report and judgment and lien searches, together with any title endorsements reasonably required by Administrative Agent; and

(g) Mortgage Borrower shall have extended the Mortgage Loan pursuant to and in accordance with Section 2.5(1) of the Mortgage Loan Agreement.

Any such extension shall be otherwise subject to all of the other terms and provisions of this Agreement and the other Loan Documents.

(2)  Second Extension of Maturity Date. In the event Borrower has previously extended the Maturity Date in accordance with Section 2.5(1) , Borrower may, at its option, extend the term of the then outstanding principal amount of the Loans for a period commencing on the last day of the First Extension Period and ending on July 31, 2011; provided , however , if such day is not a Business Day, such period shall be deemed to end the immediately preceding Business Day (the applicable period being, the “ Second Extension Period ”), subject to the satisfaction of the following conditions:

(a) Borrower shall notify (the “ Second Extension Notice ”) Administrative Agent of Borrower’s exercise of such option between thirty (30) and ninety (90) days prior to end of the First Extension Period;

(b) No Potential Default (of which Borrower has previously received notice) or Event of Default exists as of the giving of the Second Extension Notice and/or as of last day of the First Extension Period;

(c) If the Hedge Agreement in effect at the time of Borrower’s giving of the Second Extension Notice is scheduled to mature or expire prior to the end of the Second Extension Period, Borrower shall have obtained and delivered to Administrative Agent not later than ten (10) Business Days prior to the first day of the Second Extension Period one or more replacement Hedge Agreements which meet the requirements of Section 9.15 which shall be effective on or before the date the then effective Hedge Agreement is scheduled to mature or expire and shall have a maturity date not earlier than the end of the Second Extension Period;

(d) Whether or not the extension becomes effective, Borrower shall pay all out-of-pocket costs and expenses incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including reasonable legal fees; all such costs and expenses shall be due and payable within ten (10) days of demand, and any failure to pay such amounts shall constitute a default under this Agreement and the Loan Documents;

(e) Not later than the last day of the First Extension Period, (i) the extension shall have been documented to the Lenders’ reasonable satisfaction and consented to by Borrower, Administrative Agent and all the Lenders, including the execution and delivery by the Guarantor of reaffirmations of its obligations under the Guaranty and (ii) if requested by the Administrative Agent, the Administrative Agent shall have been provided with an updated title report and judgment and lien searches, together with any title endorsements reasonably required by Administrative Agent; and

(f) Mortgage Borrower shall have extended the Mortgage Loan pursuant to and in accordance with Section 2.5(2) of the Mortgage Loan Agreement.

Any such extension shall be otherwise subject to all of the other terms and provisions of this Agreement and the other Loan Documents.

(3)  Third Extension of Maturity Date. Borrower may, at its option, extend the term of the then outstanding principal amount for a period commencing on the last day of the Second Extension Period and ending on July 30, 2012; provided , however , if such day is not a Business Day, such period shall be deemed to end the immediately preceding Business Day (the applicable period being, the “ Third Extension Period ”), subject to the satisfaction of the following conditions:

(a) Borrower shall notify (the “ Third Extension Notice ”) Administrative Agent of Borrower’s exercise of such option between thirty (30) and ninety (90) days prior to the end of the Second Extension Period;

(b) No Potential Default (of which Borrower has previously received notice) or Event of Default exists as of the giving of the Third Extension Notice and/or as of the last day of the Second Extension Period;

(c) Administrative Agent shall have obtained a new Appraisal dated not more than sixty (60) days prior to the last day of the Second Extension Period (which the Administrative Agent hereby agrees to timely obtain), such Appraisal to be at Borrower’s expense;

(d) The Debt Service Coverage Ratio based on the outstanding balance of the Loans for the most recently ended calendar quarter prior to the end of the Second Extension Period, shall be equal to or greater than 1.10:1.00; provided , however , in the event that the required Debt Service Coverage Ratio is not met, then Borrower may, in order to satisfy the condition in this clause, pay down the outstanding principal balance of the Loans in an amount such that the required Debt Service Coverage Ratio is achieved (in accordance with Section 2.4(4));

(e) If the Hedge Agreement in effect at the time of Borrower’s giving of the Third Extension Notice is scheduled to mature or expire prior to the end of the Second Extension Period, Borrower shall have obtained and delivered to Administrative Agent not later than ten (10) Business Days prior to the first day of the Third Extension Period one or more replacement Hedge Agreements which meet the requirements of Section 9.15 which shall be effective on or before the date the then effective Hedge Agreement is scheduled to mature or expire and shall have a maturity date not earlier than the end of the Third Extension Period;

(f) Whether or not the extension becomes effective, Borrower shall pay all out-of-pocket costs and expenses incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including reasonable legal fees; all such costs and expenses shall be due and payable within ten (10) days of demand, and any failure to pay such amounts shall constitute a default under this Agreement and the Loan Documents;

(g) Not later than the last day of the Second Extension Period, (i) the extension shall have been documented to the Lenders’ reasonable satisfaction and consented to by Borrower, Administrative Agent and all the Lenders, including the execution and delivery by the Guarantor of reaffirmations of its obligations under the Guaranty and (ii) if requested by the Administrative Agent, the Administrative Agent shall have been provided with an updated title report and judgment and lien searches, together with any title endorsements reasonably required by Administrative Agent;

(h) Borrower shall pay to Administrative Agent (for the benefit of the Lenders in accordance with their proportionate shares) on the last day of the Second Extension Period, a non-refundable extension fee equal to 0.25% of the outstanding principal balance of the Loans; and

(i) Mortgage Borrower shall have extended the Mortgage Loan pursuant to and in accordance with Section 2.5(3) of the Mortgage Loan Agreement.

Any such extension shall be otherwise subject to all of the other terms and provisions of this Agreement and the other Loan Documents.

(4)  Fourth Extension of Maturity Date. Borrower may, at its option, extend the term of the then outstanding principal amount for a period commencing on the last day of the Third Extension Period and ending on July 29, 2013; provided , however , if such day is not a Business Day, such period shall be deemed to end the immediately preceding Business Day (the applicable period being, the “ Fourth Extension Period ”), subject to the satisfaction of the following conditions:

(a) Borrower shall notify (the “ Fourth Extension Notice ”) Administrative Agent of Borrower’s exercise of such option between thirty (30) and ninety (90) days prior to the end of the Third Extension Period;

(b) No Potential Default (of which Borrower has previously received notice) or Event of Default exists as of the giving of the Fourth Extension Notice and/or as of the last day of the Third Extension Period;

(c) The Debt Service Coverage Ratio based on the outstanding balance of the Loans for the most recently ended calendar quarter prior to en d of the Third Extension Period, shall be equal to or greater than 1.35:1.00; provided , however , in the event that the required Debt Service Coverage Ratio is not met, then Borrower may, in order to satisfy the condition in this clause, pay down the outstanding principal balance of the Loans in an amount such that the required Debt Service Coverage Ratio is achieved (in accordance with Section 2.4(4));

(d) The ratio of (i) the total outstanding principal balance of the Loans to (ii) the value of the Project does not exceed eighty percent (80%) based on the “as is” value established by a new Appraisal obtained by Administrative Agent not more than sixty (60) days prior to end of the Third Extension Period, such Appraisal to be at Borrower’s expense and satisfactory to Administrative Agent in all respects; provided , however , in the event that the required loan-to-value ratio is not met, then Borrower may, in order to satisfy the condition in this clause, pay down the outstanding principal balance of the Loans in an amount such that the required loan-to-value ratio is achieved (in accordance with Section 2.4(4) );

(e) If the Hedge Agreement in effect at the time of Borrower’s giving of the Fourth Extension Notice is scheduled to mature or expire prior to the end of the Third Extension Period, Borrower shall have obtained and delivered to Administrative Agent not later than ten (10) Business Days prior to the first day of the Fourth Extension Period one or more replacement Hedge Agreements which meet the requirements of Section 9.15 which shall be effective on or before the date the then effective Hedge Agreement is scheduled to mature or expire and shall have a maturity date not earlier than the end of the Fourth Extension Period;

(f) Whether or not the extension becomes effective, Borrower shall pay all out-of-pocket costs and expenses incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including reasonable legal fees; all such costs and expenses shall be due and payable within ten (10) days of demand, and any failure to pay such amounts shall constitute a default under this Agreement and the Loan Documents;

(g) Not later than the last day of the Third Extension Period, (i) the extension shall have been documented to the Lenders’ reasonable satisfaction and consented to by Borrower, Administrative Agent and all the Lenders, including the execution and delivery by the Guarantor of reaffirmations of its obligations under the Guaranty and (ii) if requested by the Administrative Agent, the Administrative Agent shall have been provided with an updated title report and judgment and lien searches, together with any title endorsements reasonably required by Administrative Agent;

(h) Borrower shall pay to Administrative Agent (for the benefit of the Lenders in accordance with their proportionate shares) on the last day of the Third Extension Period, a non-refundable extension fee equal to 0.25% of the outstanding principal balance of the Loans; and

(i) Mortgage Borrower shall have extended the Mortgage Loan pursuant to and in accordance with Section 2.5(4) of the Mortgage Loan Agreement.

Any such extension shall be otherwise subject to all of the other terms and provisions of this Agreement and the other Loan Documents.

(5)  Fifth Extension of Maturity Date. Borrower may, at its option, extend the term of the then outstanding principal amount for a period commencing on the last day of the Fourth Extension Period and ending on October 31, 2013; provided , however , if such day is not a Business Day, such period shall be deemed to end the immediately preceding Business Day (the applicable period being, the “ Fifth Extension Period ”), subject to the satisfaction of the following conditions:

(a) Borrower shall notify (the “ Fifth Extension Notice ”) Administrative Agent of Borrower’s exercise of such option between thirty (30) and ninety (90) days prior to the end of the Fourth Extension Period;

(b) No Potential Default (of which Borrower has previously received notice) or Event of Default exists as of the giving of the Fifth Extension Notice and/or as of last day of the Fourth Extension Period;

(c) If the Hedge Agreement in effect at the time of Borrower’s giving of the Fifth Extension Notice is scheduled to mature or expire prior to the end of the Fourth Extension Period, Borrower shall have obtained and delivered to Administrative Agent not later than ten (10) Business Days prior to the first day of the Fifth Extension Period one or more replacement Hedge Agreements which meet the requirements of Section 9.15 which shall be effective on or before the date the then effective Hedge Agreement is scheduled to mature or expire and shall have a maturity date not earlier than the end of the Fifth Extension Period;

(d) Whether or not the extension becomes effective, Borrower shall pay all out-of-pocket costs and expenses incurred by Administrative Agent and the Lenders in connection with the proposed extension (pre- and post-closing), including reasonable legal fees; all such costs and expenses shall be due and payable within ten (10) days of demand, and any failure to pay such amounts shall constitute a default under this Agreement and the Loan Documents;

(e) Not later than the last day of the Fourth Extension Period, (i) the extension shall have been documented to the Lenders’ reasonable satisfaction and consented to by Borrower, Administrative Agent and all the Lenders, including the execution and delivery by the Guarantor of reaffirmations of its obligations under the Guaranty and (ii) if requested by the Administrative Agent, the Administrative Agent shall have been provided with an updated title report and judgment and lien searches, together with any title endorsements reasonably required by Administrative Agent; and

(f) Mortgage Borrower shall have extended the Mortgage Loan pursuant to and in accordance with Section 2.5(5) of the Mortgage Loan Agreement.

Any such extension shall be otherwise subject to all of the other terms and provisions of this Agreement and the other Loan Documents.

Section 2.6 Exit Fee. Upon the earlier to occur of (a) the date when full prepayment of the Loan occurs, (b) the Maturity Date or (c) the date on which the Loan has been accelerated following an Event of Default, Borrower shall pay to the Administrative Agent for the benefit of Eurohypo the entire Exit Fee.

Section 2.7 Application of Operating Revenues; Cash Management.

(1) During the term of the Loans, Borrower shall cause Mortgage Borrower to establish and maintain the Clearing Account and Cash Management Account for the benefit of Mortgage Lender, which Clearing Account and Cash Management Account shall be under the sole dominion and control of Mortgage Lender. Borrower will not cause or permit Mortgage Borrower in any way to alter or modify the Clearing Account or Cash Management Account and will notify Administrative Agent of the account number thereof.

(2) Borrower shall direct or cause Mortgage Borrower to direct that all cash distributions from the Cash Management Account be paid to Administrative Agent (on behalf of the Lenders) in accordance with this Agreement and the Cash Management Agreement (including the Net Liquidation Proceeds After Debt Service) be deposited into an account specified by Administrative Agent.

(3) In the event Mortgage Lender waives the requirement of Mortgage Borrower to maintain the Clearing Account and Cash Management Account or the Mortgage Loan has been repaid in full, Administrative Agent (on behalf of the Lenders) shall have the right to require Borrower to establish and maintain a cash management account that would operate in the same way as the Clearing Account and Cash Management Account.

Section 2.8 Payments; Pro Rata Treatment; Etc.

(1)  Payments Generally .

(a)  Payments by Borrower . Except to the extent otherwise provided herein, all payments of principal, interest and other amounts to be made by Borrower under this Agreement and the Notes, and, except to the extent otherwise provided therein, all payments to be made by Borrower under any other Loan Document, shall be made in Dollars, in immediately available funds, without deduction, setoff or counterclaim, to the Administrative Agent at an account designated by the Administrative Agent by notice to Borrower, not later than 12:00 noon, New York City time, on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day).

(b)  Application of Payments . Subject to the provisions of Sections 2.4(6) and 2.8(2) , Borrower shall, at the time of making each payment under this Agreement or any Note for the account of any Lender, specify to the Administrative Agent (which shall so notify the intended recipient(s) thereof) the Types of Loans or other amounts payable by Borrower hereunder to which such payment is to be applied (and in the event that Borrower fails to so specify, or if an Event of Default exists, the Administrative Agent may distribute such payment to the Lenders for application in such manner as it may determine to be appropriate, subject to Section 2.8(2) and any other agreement among the Administrative Agent and the Lenders with respect to such application).

(c)  Forwarding of Payments by Administrative Agent . Except as otherwise agreed by the Administrative Agent and the Lenders, each payment received by the Administrative Agent under this Agreement or any Note for account of any Lender shall be paid by the Administrative Agent promptly to such Lender, in immediately available funds, for account of such Lender’s Applicable Lending Office for the Loan or other obligation in respect of which such payment is made.

(d)  Extensions to Next Business Day . If the due date of any payment under this Agreement or any Note would otherwise fall on a day that is not a Business Day, such date shall be extended to the next succeeding Business Day, and interest shall be payable for any principal so extended for the period of such extension.

(2)  Pro Rata Treatment . Except to the extent otherwise provided herein: (a) each advance of a Loan from the Lenders under Section 2.1(2) shall be made from the Lenders, and any termination of the obligation to make an advance of the Loans shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective Commitments; (b) except as otherwise provided in Section 2.9(4) , Loans shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Loans) or their respective Loans (in the case of Conversions or Continuations of Loans); (c) each payment or prepayment of principal of Loans by Borrower shall be made for account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them; and (d) each payment of interest on Loans by Borrower shall be made for account of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders.

(3)  Computations . Interest on all Loans shall be computed on the basis of a year of 360 days and actual days elapsed (including the first day but excluding the last day) occurring in the period for which payable.

(4)  Minimum Amounts . Except for (a) mandatory and other prepayments made pursuant to Sections 2.4(4) and 14.4 , (b) Conversions or prepayments made pursuant to Section 2.9(4) , each Conversion and Continuation (collectively, “ Loan Transactions ”) of Loans shall be in an aggregate amount at least equal to $1,000,000 (Loan Transactions of or into Loans of different Types or Interest Periods at the same time hereunder shall be deemed separate Loan Transactions for purposes of the foregoing, one for each Type or Interest Period); provided that if any Loans or borrowings would otherwise be in a lesser principal amount for any period, such Loans shall be Base Rate Loans during such period. Notwithstanding the foregoing, the minimum amount of $1,000,000 shall not apply to Conversions of lesser amounts into a Type of Loan that has (or will have upon such Conversion) an aggregate principal amount exceeding such minimum amount and a duration of at least one Interest Period. The initial borrowing hereunder shall be an aggregate amount at least equal to $500,000.

(5)  Certain Notices . Notices by Borrower to the Administrative Agent regarding Loan Transactions and the selection of Types of Loans and/or of the duration of Interest Periods shall be irrevocable and shall be effective only if received by the Administrative Agent not later than 12:00 noon, New York City time, on the number of Business Days prior to the date of the proposed Loan Transaction or the first day of such Interest Period specified below:

Each such notice of a Loan Transaction shall specify the amount (subject to Section 2.8(4) ), Type, and Interest Period of such proposed Loan Transaction, and the date (which shall be a Business Day) of such proposed Loan Transaction. Notices for Conversions and Continuations shall be in the form of Exhibit E . Each such notice specifying the duration of an Interest Period shall specify the portion of the Loans to which such Interest Period is to relate. The Administrative Agent shall promptly notify the Lenders of the contents of each such notice. If Borrower fails to select (i) the Type of Loan or (ii) the duration of any Interest Period for any Eurodollar Loan within the time period (i.e., three (3) Business Days prior to the first day of the next applicable Interest Period) and otherwise as provided in this Section 2.8(5) , such Loan (if outstanding as an Eurodollar Loan) will be automatically Continued as an Eurodollar Loan with an Interest Period of one (1) month on the last day of the current Interest Period for such Loan (based on a LIBOR Rate determined two (2) Business Days prior to the first day of the next Interest Period) or, if outstanding as a Base Rate Loan, will remain as a Base Rate Loan.

(6)  Non Receipt of Funds by the Administrative Agent . Unless the Administrative Agent shall have been notified by a Lender or Borrower (in either case, the “ Payor ”) prior to the date on which the Payor is to make payment to the Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be made by such Lender hereunder or (in the case of Borrower) a payment to the Administrative Agent for account of any Lender hereunder (in either case, such payment being herein called the “ Required Payment ”), which notice shall be effective upon receipt, that the Payor does not intend to make the Required Payment to the Administrative Agent, the Administrative Agent may assume that the Required Payment has been made and may, in reliance upon such assumption (but shall not be required to), make the amount thereof available to the intended recipient(s) on such date; and, if the Payor has not in fact made the Required Payment to the Administrative Agent, the recipient(s) of such payment shall, on demand, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date (the “ Advance Date ”) such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (a) the Prime Rate for such day in the case of payments returned to the Administrative Agent by any of the Lenders or (b) the applicable interest rate due hereunder with respect to payments returned by Borrower to the Administrative Agent and, if such recipient(s) shall fail promptly to make such payment, the Administrative Agent shall be entitled to recover such amount, on demand, from the Payor, together with interest as aforesaid; provided that if neither the recipient(s) nor the Payor shall return the Required Payment to the Administrative Agent within three (3) Business Days of the Advance Date, then, retroactively to the Advance Date, the Payor and the recipient(s) shall each be obligated to pay interest on the Required Payment as follows:

(a) if the Required Payment shall represent a payment to be made by Borrower to the Lenders, Borrower and the recipient(s) shall each be obligated retroactively to the Advance Date to pay interest in respect of the Required Payment at the Default Rate (without duplication of the obligation of Borrower under Section 2.3 to pay interest on the Required Payment at the Default Rate), it being understood that the return by the recipient(s) of the Required Payment to the Administrative Agent shall not limit such obligation of Borrower under Section 2.3 to pay interest at the Default Rate in respect of the Required Payment, and

(b) if the Required Payment shall represent proceeds of a Loan to be made by the Lenders to Borrower, the Payor and Borrower shall each be obligated retroactively to the Advance Date to pay interest in respect of the Required Payment pursuant to whichever of the rates specified in Section 2.3 is applicable to the Type of such Loan, it being understood that the return by Borrower of the Required Payment to the Administrative Agent shall not limit any claim Borrower may have against the Payor in respect of such Required Payment.

(7)  Sharing of Payments, Etc .

(a)  Right of Set off . Borrower agrees that, in addition to (and without limitation of) any right of set off, banker’s lien or counterclaim a Lender may otherwise have, (subject, as among the Lenders, to Section 12.26 ), each Lender shall be entitled, at its option (to the fullest extent permitted by law), to set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of Borrower at any of its offices, in Dollars or in any other currency, against any principal of or interest on any of such Lender’s Loans or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such deposit or other indebtedness is then due to such Borrower), in which case it shall promptly notify Borrower and the Administrative Agent thereof, provided that such Lender’s failure to give such notice shall not affect the validity thereof.

(b)  Sharing . If any Lender shall obtain from Borrower payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any other Loan Document through the exercise (subject, as among the Lenders, to Section 12.26 ) of any right of set off, banker’s lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on the Loans or such other amounts then due hereunder or thereunder by Borrower to such Lender than the percentage received by any other Lender, it shall promptly purchase from such other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of and/or interest on the Loans or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored.

(c)  Consent by Borrower . Borrower agrees that any Lender so purchasing such a participation (or direct interest) may exercise (subject, as among the Lenders, to Section 12.26 ) all rights of set off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.

(d)  Rights of Lenders; Bankruptcy . Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a set off to which this Section 2.8(7) applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 2.8(7) to share in the benefits of any recovery on such secured claim.

Section 2.9 Yield Protection; Etc .

(1)  Additional Costs.

(a)  Costs of Making or Maintaining Eurodollar Loans . Borrower shall pay directly to each Lender from time to time such amounts as such Lender may reasonably determine to be necessary to compensate such Lender for any costs that such Lender determines are attributable to its making or maintaining of any Eurodollar Loans or its obligation to make any Eurodollar Loans hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any of such Eurodollar Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called “ Additional Costs ”), resulting from any Regulatory Change that:

(i) shall subject any Lender (or its Applicable Lending Office for any of such Loans) to any tax, duty or other charge in respect of such Loans or its Note or changes the basis of taxation of any amounts payable to such Lender under this Agreement or its Note in respect of any of such Loans (excluding changes in the rate of tax on the overall net income of such Lender or of such Applicable Lending Office by the jurisdiction in which such Lender has its principal office or such Applicable Lending Office); or

(ii) imposes or modifies any reserve, special deposit or similar requirements (other than the Reserve Requirement used in the determination of the Adjusted LIBOR Rate for any Interest Period for such Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Lender (including, without limitation, any of such Loans or any deposits referred to in the definition of “LIBOR Rate”), or any commitment of such Lender (including, without limitation, the Commitment of such Lender hereunder); or

(iii) imposes any other condition affecting this Agreement or its Note (or any of such extensions of credit or liabilities) or its Commitment.

If any Lender requests compensation from Borrower under this paragraph (a), Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender thereafter to make or Continue Eurodollar Loans, or to Convert Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 2.9(4) shall be applicable), provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.

(b)  Costs Attributable to Regulatory Change or Risk-Based Capital Guidelines . Without limiting the effect of the foregoing provisions of this Section 2.9(1) (but without duplication), Borrower shall pay directly to each Lender from time to time on request such amounts as such Lender may reasonably determine to be necessary to compensate such Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it reasonably determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority (excluding Basel II and any other law or regulation which implements Basel II, in each case in the form existing on the date of this Agreement), of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request.

(c)  Notification and Certification . Each Lender shall notify Borrower of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 2.9(1) as promptly as practicable, but in any event within forty-five (45) days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within forty-five (45) days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 2.9(1) in respect of any costs resulting from such event, only be entitled to payment under this Section 2.9(1) for costs incurred from and after the date thirty (30) days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 2.9(1) . Determinations and allocations by any Lender for purposes of this Section 2.9(1) of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 2.9(1) , or of the effect of capital maintained pursuant to paragraph (b) of this Section 2.9(1) , on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 2.9(1) , shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.

Borrower shall be obligated to pay compensation to a Lender pursuant to subsections (a) and (b) of this Section 2.9(1) only if such Lender is imposing similar compensation requirements on borrowers under commercial loans of the same type and quality as the Loan and which are similarly affected by the Regulatory Change or other guidelines or requirements for which such Lender is seeking compensation from Borrower pursuant to this Section 2.9(1) .

(2)  Limitation on Types of Loans . Anything herein to the contrary notwithstanding, if, on or prior to the determination of the LIBOR Rate for any Interest Period for any Eurodollar Loan:

(a) the Administrative Agent determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of LIBOR Rate are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Eurodollar Loans as provided herein; or

(b) any Lender determines, which determination shall be conclusive, and notify the Administrative Agent that the relevant rates of interest referred to in the definition of LIBOR Rate upon the basis of which the rate of interest for Eurodollar Loans for such Interest Period is to be determined are not likely adequately to cover the cost to such Lenders of making or maintaining Eurodollar Loans for such Interest Period;

then the Administrative Agent shall give Borrower and each Lender prompt notice thereof and, so long as such condition remains in effect, the Lenders shall be under no obligation to make additional Eurodollar Loans, to Continue Eurodollar Loans or to Convert Loans of any other Type into Eurodollar Loans, and Borrower shall, on the last day(s) of the then current Interest Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or such Loans shall be automatically Converted into Base Rate Loans.

(3)  Illegality . Notwithstanding any other provision of this Agreement, in the event that it becomes unlawful for any Lender or its Applicable Lending Office to honor its obligation to make or maintain Eurodollar Loans hereunder (and, in the sole opinion of such Lender, the designation of a different Applicable Lending Office would either not avoid such unlawfulness or would be disadvantageous to such Lender), then such Lender shall promptly notify Borrower thereof (with a copy to the Administrative Agent) and such Lender’s obligation to make or Continue, or to Convert Loans of any other Type into, Eurodollar Loans shall be suspended until such time as such Lender may again make and maintain Eurodollar Loans (in which case the provisions of Section 2.9(4) shall be applicable).

(4)  Treatment of Affected Loans . If the obligation of any Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to Section 2.9(1) or 2.9(3) , such Lender’s Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for Loans (or, in the case of a Conversion resulting from a circumstance described in Section 2.9(3) , on such earlier date as such Lender may specify to Borrower with a copy to the Administrative Agent) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 2.9(1) or 2.9(3) that gave rise to such Conversion no longer exist:

(a) to the extent that such Lender’s Loans have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Loans shall be applied instead to its Base Rate Loans; and

(b) all Loans that would otherwise be made or Continued by such Lender as Eurodollar Loans shall be made or Continued instead as Base Rate Loans, and all Loans of such Lender that would otherwise be Converted into Eurodollar Loans shall remain as Base Rate Loans.

If such Lender gives notice to Borrower with a copy to the Administrative Agent that the circumstances specified in Section 2.9(1) or 2.9(3) that gave rise to the Conversion of such Lender’s Loans pursuant to this Section 2.9(4) no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the extent necessary so that, after giving effect thereto, all Base Rate Loans and Eurodollar Loans are allocated among the Lenders ratably (as to principal amounts, Types and Interest Periods) in accordance with their respective Commitments.

(5)  Compensation . Borrower shall pay to the Administrative Agent for account of each Lender, upon the request of such Lender through the Administrative Agent, such amount or amounts as shall be sufficient (in the reasonable opinion of such Lender) to compensate it for any loss, cost or expense that such Lender determines is attributable to:

(a) any payment, prepayment or Conversion of a Eurodollar Loan made by such Lender for any reason (including, without limitation, the acceleration of the Loans pursuant to the Administrative Agent’s or the Lenders’ rights referred to in Article 11 ) on a date other than the last day of the Interest Period for such Loan; or

(b) any failure by Borrower for any reason to borrow a Eurodollar Loan from such Lender on the date for such borrowing specified in the relevant notice of borrowing given to the Administrative Agent in accordance with the terms of this Agreement.

Without limiting the effect of the preceding sentence, such compensation shall include an amount equal to the excess, if any, of (i) the amount of interest that otherwise would have accrued on the principal amount so paid, prepaid, Converted or not borrowed for the period from the date of such payment, prepayment, Conversion or failure to borrow to the last day of the then current Interest Period for such Loan (or, in the case of a failure to borrow, the Interest Period for such Loan that would have commenced on the date specified for such borrowing) at the applicable rate of interest for such Loan provided for herein over (ii) the amount of interest that otherwise would have accrued on such principal amount at a rate per annum equal to the interest component of the amount such Lender would have bid in the London interbank market for Dollar deposits of leading banks in amounts comparable to such principal amount and with maturities comparable to such period (as reasonably determined by such Lender), or if such Lender shall cease to make such bids, the equivalent rate, as reasonably determined by such Lender, derived from Page 3750 of the Dow Jones Markets (Telerate) Service or other publicly available source as described in the definition of LIBOR Rate.

(6) U.S. Taxes .

(a)  Gross-up for Deduction or Withholding of U.S. Taxes . Borrower agrees to pay to each Lender that is not a U.S. Person such additional amounts as are necessary in order that the net payment of any amount due to such non U.S. Person hereunder after deduction for or withholding in respect of any U.S. Taxes imposed with respect to such payment (or in lieu thereof, payment of such U.S. Taxes by such non U.S. Person), will not be less than the amount stated herein to be then due and payable, provided that the foregoing obligation to pay such additional amounts shall not apply:

(i) to any payment to any Lender hereunder unless such Lender is, on the date hereof (or on the date it becomes a Lender hereunder as provided in Section 12.24(2) ) and on the date of any change in the Applicable Lending Office of such Lender, either entitled to submit a Form W-8BEN (relating to such Lender and entitling it to a complete exemption from withholding on all interest to be received by it hereunder in respect of the Loans) or Form W-8ECI (relating to all interest to be received by such Lender hereunder in respect of the Loans), or

(ii) to any U.S. Taxes imposed solely by reason of the failure by such non U.S. Person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of such non U.S. Person if such compliance is required by statute or regulation of the United States of America as a precondition to relief or exemption from such U.S. Taxes.

For the purposes hereof, (A) “ U.S. Person ” means a citizen, national or resident of the United States of America, a corporation, limited liability company, partnership or other entity created or organized in or under any laws of the United States of America or any State thereof, or any estate or trust that is subject to Federal income taxation regardless of the source of its income, (B) “ U.S. Taxes ” means any present or future tax, assessment or other charge or levy imposed by or on behalf of the United States of America or any taxing authority thereof or therein, (C) “ Form W-8BEN ” means Form W-8BEN of the Department of the Treasury of the United States of America and (D) “ Form W-8ECI ” means Form W-8ECI of the Department of the Treasury of the United States of America. Each of the Forms referred to in the foregoing clauses (C) and (D) shall include such successor and related forms as may from time to time be adopted by the relevant taxing authorities of the United States of America to document a claim to which such Form relates.

(b)  Evidence of Deduction, Etc. Within thirty (30) days after paying any amount to the Administrative Agent or any Lender from which it is required by law to make any deduction or withholding, and within thirty (30) days after it is required by law to remit such deduction or withholding to any relevant taxing or other authority, Borrower shall deliver to the Administrative Agent for delivery to such non U.S. Person evidence satisfactory to such Person of such deduction, withholding or payment (as the case may be).

(7)  Replacement of Lenders . If any Lender requests compensation pursuant to Section 2.9(1) or 2.9(6) , or any Lender’s obligation to Continue Loans of any Type, or to Convert Loans of any Type into the other Type of Loan, shall be suspended pursuant to Section 2.9(2) or 2.9(3) (any such Lender requesting such compensation, or whose obligations are so suspended, being herein called a “ Requesting Lender ”), Borrower, upon three (3) Business Days notice, may require that such Requesting Lender transfer all of its right, title and interest under this Agreement and such Requesting Lender’s Note to any bank or other financial institution (a “ Proposed Lender ”) identified by Borrower that is satisfactory to the Administrative Agent (i) if such Proposed Lender agrees to assume all of the obligations of such Requesting Lender hereunder, and to purchase all of such Requesting Lender’s Loans hereunder for consideration equal to the aggregate outstanding principal amount of such Requesting Lender’s Loans, together with interest thereon to the date of such purchase (to the extent not paid by Borrower), and satisfactory arrangements are made for payment to such Requesting Lender of all other amounts accrued and payable hereunder to such Requesting Lender as of the date of such transfer (including any fees accrued hereunder and any amounts that would be payable under Section 2.9(5) as if all of such Requesting Lender’s Loans were being prepaid in full on such date) and (ii) if such Requesting Lender has requested compensation pursuant to Section 2.9(1) or 2.9(6) , such Proposed Lender’s aggregate requested compensation, if any, pursuant to Section 2.9(1) or 2.9(6) with respect to such Requesting Lender’s Loans is lower than that of the Requesting Lender. Subject to the provisions of Section 12.24(2) , such Proposed Lender shall be a “Lender” for all purposes hereunder. Without prejudice to the survival of any other agreement of Borrower hereunder, the agreements of Borrower contained in Sections 2.9(1) , 2.9(6) and 12.5 (without duplication of any payments made to such Requesting Lender by Borrower or the Proposed Lender) shall survive for the benefit of such Requesting Lender under this Section 2.9(7) with respect to the time prior to such replacement.

ARTICLE 3

INSURANCE, CONDEMNATION, AND IMPOUNDS

Section 3.1 Insurance.

(1) Borrower shall cause Mortgage Borrower to maintain at all times during the term of the Loans the insurance required under Article 3 of the Mortgage Loan Agreement, including, without limitation, meeting all insurer requirements thereunder. Borrower shall cause Administrative Agent (on behalf of Lenders) to be named as named insureds together with Mortgage Lender, as their interest may appear, under the insurance policies required under Article 3 of the Mortgage Loan Agreement. Borrower shall also cause all insurance policies required under this Section 3.1 to provide for at least thirty (30) days’ prior notice to Administrative Agent in the event of policy cancellation or material changes. Not less than thirty (30) days’ prior to the expiration dates of the policies theretofore furnished to Administrative Agent pursuant to the terms hereof, certified copies of the policies marked “premium paid” or accompanied by evidence satisfactory to Administrative Agent of payment of the premiums due thereunder shall be delivered by Borrower to Administrative Agent; provided , however , that in the case of renewal policies, Borrower may furnish Administrative Agent with binders therefor to be followed by the original policies when issued.

(2) If at any time Administrative Agent is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Administrative Agent shall have the right, without notice to Borrower to take such action as Administrative Agent deems necessary to protect its interest in the Project and the Collateral, including, without limitation, the obtaining of such insurance coverage as Administrative Agent in its sole discretion deems appropriate, and all expenses incurred by Administrative Agent in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Administrative Agent upon demand and until paid shall be secured by the Pledge Agreement and shall bear interest at the Default Rate.

(3) For purposes of this Agreement, Administrative Agent shall have the same approval rights over the insurance referred to above (including, without limitation, the insurers, deductibles and coverages thereunder), as well as the right to require other insurance as are provided in favor of Mortgage Lender in the Mortgage Loan Agreement. All liability insurance provided for in the Mortgage Loan Documents shall provide insurance with respect to the liabilities of both Mortgage Borrower and Borrower. The insurance policies delivered pursuant to the Mortgage Loan Documents shall include endorsements required by Mortgage Lender, but pursuant to which Administrative Agent shall have the same rights as the Mortgage Lender.

(4) In the event that the Mortgage Loan has been paid in full, except upon the occurrence and continuance of an Event of Default, Borrower shall permit Mortgage Borrower to settle any insurance or condemnation claims with respect to the insurance proceeds or condemnation awards which in the aggregate are less than or equal to the Threshold Amount. Administrative Agent shall have the right to participate in and approve any settlement for insurance or condemnation claims with respect to the insurance proceeds or condemnation awards which in the aggregate are equal to or greater than the Threshold Amount. If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably empowers Administrative Agent, in the name of Mortgage Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim and to collect and to make receipt for any such payment.

Section 3.2 Use and Application of Insurance Proceeds. Notwithstanding any provision in this Agreement to the contrary, all insurance proceeds will be made available to Mortgage Borrower in accordance with the Mortgage Loan Agreement. In the event the Mortgage Loan has been paid in full and Administrative Agent receives any insurance proceeds, Administrative Agent (for the benefit of Lenders) shall either apply such proceeds to the Debt or for the restoration of the Project in accordance with the same terms and conditions contained in the Mortgage Loan Agreement, as if such terms were set forth in full herein.

Section 3.3 Casualty and Condemnation.

(1) If the Project shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “ Casualty ”), Borrower shall cause Mortgage Borrower to give prompt notice of such damage to Administrative Agent and shall or shall cause Mortgage Borrower to promptly commence and diligently prosecute the completion of the restoration of the Project as nearly as possible to the condition the Project was in immediately prior to such Casualty, with such alterations as may be approved by Administrative Agent and otherwise in accordance with the Mortgage Loan Agreement. Borrower shall or shall cause Mortgage Borrower to pay all costs of such restoration whether or not such costs are covered by insurance. Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

(2) Borrower shall cause Mortgage Borrower to promptly give Administrative Agent notice of the actual or threatened commencement of any proceeding for the condemnation of all or any part of the Project and shall or shall cause Mortgage Borrower to deliver to Administrative Agent copies of any and all papers served in connection with such proceedings. Administrative Agent may participate in any such proceedings, and Borrower shall from time to time cause Mortgage Borrower to deliver to Administrative Agent all instruments requested by it to permit such participation. Borrower shall, or shall cause Mortgage Borrower, at its own expense, to diligently prosecute any such proceedings, and shall consult with Administrative Agent, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi public authority through condemnation or otherwise (including, but not limited to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Loans at the time and in the manner provided for its payment in the Notes and in this Agreement.

(3) For purposes of Sections 3.1 and 3.2 hereof, Borrower shall obtain the approval of Administrative Agent for each matter requiring the approval of Mortgage Lender under the provisions of Article 3 of the Mortgage Loan Agreement.

ARTICLE 4

RESERVES

Section 4.1 Interest Reserve Fund.

(1)  Deposits . In the event that the Administrative Agent determines from time to time in its sole and absolute discretion that Loans available pursuant to Section 2.1(2)(a) and future Operating Revenues may be insufficient to pay all interest charges due or to be due in connection with the Loans, the Administrative Agent shall notify Borrower in writing of such determination. Within ten (10) Business Days following any such notice, Borrower shall deposit with the Administrative Agent (or, at the direction of the Administrative Agent, the Depository Bank), for deposit with Administrative Agent into an account in Administrative Agent’s name an amount reasonably determined by the Administrative Agent as being necessary to provide an adequate reserve for the payment of such interest charges (the “ Interest Reserve Fund ”).

(2)  Disbursements . Provided that no Event of Default exists (other than a Default or an Event of Default which may be cured by the transfer of amounts credited to the Interest Reserve Fund to Borrower’s account pursuant to this Section 4.1(2) ), and provided that there are insufficient Operating Revenues and insufficient Loans available pursuant to Section 2.1(2)(a) from which to pay such interest payments, the Administrative Agent will direct the Depository Bank to transfer (to the extent funds are available th