Exhibit 10.38


SECOND AMENDMENT TO BUILDING LOAN AGREEMENT


Dated: as of October 20, 2010


By and between


ACADIA ATLANTIC AVENUE, LLC,

as Borrower


and


U.S. BANK NATIONAL ASSOCIATION, NOT
INDIVIDUALLY 

BUT SOLELY AS TRUSTEE FOR THE MAIDEN LANE COMMERCIAL 

MORTGAGE-BACKED SECURITIES TRUST 2008-1,

as Lender


	
  

 	
  

 
	
 Location:

 	
 Atlantic Avenue

 
	
 Borough:

 	
 Brooklyn

 
	
 County:

 	
 Kings

 
	
 Block:

 	
 4145

 
	
 Lots:

 	
 1, 13 and 23

 


MERS MIN: 8000101-0000007166-7





SECOND AMENDMENT TO BUILDING LOAN AGREEMENT


          This SECOND
AMENDMENT TO BUILDING LOAN AGREEMENT (this “Amendment”), dated as of
October 20, 2010 (the “Effective Date”), by and between U.S. BANK
NATIONAL ASSOCIATION, NOT INDIVIDUALLY BUT SOLELY AS TRUSTEE FOR THE MAIDEN
LANE COMMERCIAL MORTGAGE-BACKED SECURITIES TRUST 2008-1, c/o Bank of
America, 900 West Trade Street, S 650, NCI-026-06-01, Charlotte, North Carolina
28255 (“Lender”)
and ACADIA
ATLANTIC AVENUE, LLC, a Delaware limited liability company, having
its principal place of business at c/o Acadia Realty Trust, 1311 Mamaroneck
Avenue-Suite 260, White Plains, New York 10605 (“Borrower”), and acknowledged
and agreed to by ACADIA STRATEGIC OPPORTUNITY FUND II, LLC, a Delaware limited
liability company (“Fund II”), POST MANAGEMENT, LLC, a
Delaware limited liability company (“Post”; Fund II and Post, individually
and/or collectively, as the context may require, the “Guarantor”) and SELF STORAGE
MANAGEMENT LLC, a Delaware limited liability company (“Manager”).


WITNESSETH:


          WHEREAS,
pursuant to the terms and conditions of that certain Building Loan Agreement,
dated as of December 26, 2007, which Building Loan Agreement was filed in the
office of the Clerk of Kings County (“County Clerk”) on January 10, 2008 in
Control 002427648-01,
as amended by that certain Amendment to Building Loan Agreement, dated as of
March 12, 2008 (as the same has been or may be amended, renewed,
modified, extended, replaced or supplemented from time to time, the “Building
Loan Agreement”), Bear Stearns Commercial Mortgage, Inc. (“Bear Stearns”)
made a loan to Borrower in the principal amount of up to Eleven Million Two
Hundred Twenty-Nine Thousand Two Hundred Sixty and 33/100 Dollars
($11,229,260.33) (the “Building Loan”), which Building Loan is
secured, inter alia, by that certain Building Loan Mortgage and Security
Agreement, dated as of December 26, 2007, given by Borrower to Bear Stearns
encumbering that certain lot or piece of land, more particularly described in Exhibit
A annexed hereto and made a part hereof, and the buildings, structures and improvements
now or hereafter located thereon (collectively, the “Property”);


          WHEREAS,
Lender has succeeded to the interest, rights, duties and obligations of Bear
Stearns with respect to the Building Loan and is now the holder of the Building
Loan Agreement and the other Loan Documents (as defined in the Building Loan
Agreement);


          WHEREAS,
the parties hereto desire to amend the Building Loan Agreement as set forth in
this Amendment.


          NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby covenant, agree,
represent and warrant as follows:


                              1.
Representations and Warranties. Borrower and Guarantor hereby represent
and warrant to Lender that, as of the Effective Date hereof: 


          (a) The
Project, including the Project Improvements, was completed on or about June


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22, 2009;


          (b)
Attached hereto as Schedule I is a true, accurate and complete list of
each contractor, materialman, laborer, workman, engineer, architect or other
Person who could have standing to file a lien against the Property pursuant to
the Lien Law (individually, each, a “Work Provider” and collectively, the “Work
Providers”) in connection with the Project Improvements, the
Completion of the Improvements and any other work performed at the Property
(collectively, the “Work”); 


          (c) Each
Work Provider has completed its respective Work;


          (d) No Work
Provider has performed any Work at the Property during eight (8) months prior
to the Effective Date;


          (e) All
Work at the Property performed prior to the Effective Date has been paid for
and is evidenced by unconditional final lien waivers; 


          (f)
Borrower has previously delivered to Lender unconditional final lien waivers
fully executed by the applicable Work Provider with respect to all Work and all
amounts paid to such Work Provider; 


          (g) There
are no mechanic’s liens currently recorded against the Property that have not
been bonded and Borrower is not aware of any other potential liens which could
be filed against the Property;


          (h) After
giving effect to the provisions of this Amendment and the other documents
entered into by Borrower in connection herewith, no default or Event of Default
shall be continuing under the Loan Documents and there is no existing condition
which, but for the passage of time or the giving of notice, could result in an
Event of Default under the Loan Documents; 


          (i) The
outstanding principal balance of the Building Loan is $10,140,619.77; and


          (j) The
Property is not subject to any existing municipal violations, including,
without limitation, any violations issued by the New York City Department of Buildings.



                              2.
Agreement with respect to the Final Advance. 


          (a)
Borrower, Guarantor and Lender hereby acknowledge and agree that the conditions
to release the Final Advance, as set forth in Section 2.12 of the Building Loan
Agreement, have not been satisfied by Borrower and that Borrower is no longer
permitted to request and/or receive the Final Advance under the Building Loan,
pursuant to the express provisions thereof, now or at any time hereafter.
Borrower and Guarantor hereby rescind, and acknowledge as void, any pending
Draw Request delivered to Lender which has not been funded in whole or in part
on or before the date hereof.


          (b)
Notwithstanding anything to the contrary in the Building Loan Agreement, Borrower,
Lender and Guarantor hereby agree that as of the Effective Date, Borrower shall
not 


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be permitted to request and/or receive any further Advances under the
Building Loan. 


                              3.
Amendment to Building Loan Agreement. 


          (a) The
following defined terms as defined in Section 1.1 of the Building Loan
Agreement are hereby deleted in their entirety and replaced with the following:


	
  

 	
  

 
	
  

 	
 “Gross Income from Operations” shall mean, for any period, all sustainable income, computed in
 accordance with GAAP, derived from the ownership and operation of the Property from whatever source during such period,
 including, but not
 limited to, Rents from tenants in
 occupancy and paying full contractual rent without right of offset or credit, utility charges, escalations, forfeited
 security deposits, service fees or
 charges, license fees, parking fees, rent concessions or credits, business
 interruption or other loss of
 income or rental insurance proceeds or other required pass-throughs and
 interest on Reserves, if any, but excluding Rents from tenants that
 are included in any Bankruptcy Action, sales, use and occupancy or other
 taxes on receipts required to be accounted for by Borrower to any Governmental Authority, interest on credit accounts, refunds and uncollectible accounts, sales of
 furniture, fixtures and equipment,
 Insurance Proceeds (other than business interruption or other loss of income
 or rental insurance), Awards,
 unforfeited security deposits, utility and other similar deposits and any disbursements to Borrower from the Reserve
 Funds, if any.

 
	
  

 	
  

 
	
  

 	
 “Interest Rate” shall mean seven and three hundred forty-four
 thousandths percent (7.344%).

 
	
  

 	
  

 
	
  

 	
 “Monthly Debt Service Payment Amount” shall mean for each
 Payment Date (a) commencing with the Payment Date occurring in February, 2008
 through and including the Payment Date occurring in October, 2010, the
 Monthly Interest Payment Amount, (b) commencing with the Payment Date
 occurring in November, 2010 through and including the Payment Date occurring
 in April, 2012 (the “Accrual Period”), the Accrual Period
 Monthly Payment Amount, and (c) commencing with the Payment Date occurring in
 May, 2012 and on each Payment Date thereafter, the P&I Payment Amount.

 


          (b) The
following defined terms shall be incorporated into Section 1.1 of the Building
Loan Agreement:


	
  

 	
  

 	
  

 
	
  

 	
 “Accrual Period Monthly Payment Amount” shall mean an amount
 equal to the Net Cash Flow Before Debt Service (defined below) for the
 Interest Period second preceding the then applicable Payment Date, provided,
 that, in the event the Net Cash Flow Before Debt Service for such period is
 less than the Monthly Interest Payment Amount (such deficiency, the “Accrual
 Period Shortfall”), then Borrower shall pay such Accrual Period
 Shortfall as follows:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 First, if on any prior Payment Date there were any NOI Errors, then
 the

 


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 remaining Accrual Period Shortfall (or the applicable portion
 thereof) shall be paid by Borrower (from funds
 other than funds derived from the use, occupancy, operation and
 ownership of the Property) in an amount not to exceed the aggregate amount of
 NOI Errors from such prior Payment Dates;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Second, in the event the Accrual Period Shortfall has not been paid
 in full as a result of the foregoing and if on any prior Payment Date there
 were any Excess Funds, then the Accrual Period Shortfall (or the applicable
 portion thereof) shall be paid by Borrower (from funds other than funds derived from the use, occupancy,
 operation and ownership of the Property) in an amount not to exceed the
 aggregate amount of Excess Funds from such prior Payment Dates;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Third, in the event the Accrual Period Shortfall has not been paid in
 full as a result of the foregoing and provided no Event of Default is then continuing,
 then the remaining Accrual Period Shortfall (or the applicable portion
 thereof) shall be disbursed by Lender from the Interest Reserve Account in an
 amount not to exceed the then remaining amount on deposit in the Interest
 Reserve Account (and Borrower hereby irrevocably directs Lender to apply such
 Interest Reserve Funds to the remaining Accrual Period Shortfall);

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Fourth, in the event the Accrual Period Shortfall has not been paid
 in full, the remaining Accrual Period Shortfall shall accrue and (x)
 immediately commence earning interest at the Interest Rate to the extent
 permitted by law and (y) to the extent remaining unpaid at the Maturity Date,
 be due and payable in full at the Maturity Date (the “Accrued Interest”);

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 provided, however, in no event shall the Accrual Period Monthly
 Payment Amount exceed the Monthly Interest Payment Amount for such Interest
 Period.

 
	
  

 	
  

 	
  

 
	
  

 	
 For the avoidance of doubt and for purposes of illustration and
 example, for the Payment Date occurring in March, 2011, the Accrual Period
 Monthly Payment Amount shall be calculated based upon the Net Cash Flow
 Before Debt Service for the Interest Period from January 1, 2011 through and
 including January 31, 2011.

 
	
  

 	
  

 	
  

 
	
  

 	
 As used herein, “Net Cash Flow Before Debt Service” shall
 mean all income derived from the use, occupancy, operation and ownership of
 the Property, from any source whatsoever, less Operating Expenses.

 
	
  

 	
  

 	
  

 
	
  

 	
 “Accrued Interest” shall have the meaning set forth in the
 definition of “Accrual Period Monthly Payment Amount”.

 
	
  

 	
  

 	
  

 
	
  

 	
 “Approved Lender” shall mean a bona-fide, third party lender
 which is unaffiliated with any Borrower Party and is otherwise regularly
 engaged in 

 


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 making commercial real estate loans in the State of New York.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “BLA Modification Effective Date” shall mean October 20,
 2010.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “BLA Modification Agreement” shall mean that certain Second
 Amendment to Building Loan Agreement, dated as of the BLA Modification
 Effective Date, by and among Borrower, Lender, Guarantor and Manager.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “Borrower Party” and “Borrower Parties” shall mean each of
 Borrower, Guarantor, the constituent members of such Person and each of their
 principals, directors, officers, employees, beneficiaries, shareholders,
 partners, members, trustees, agents, or Affiliates or any legal
 representatives, successors or assigns of any of the foregoing.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “Excess Funds” shall mean, with respect to any applicable
 Payment Date, an amount equal to Net Cash Flow Before Debt Service less
 the applicable Monthly Debt Service Payment Amount, as determined by Lender
 in its sole but good faith discretion after Lender’s review of the applicable
 Monthly Income Reports.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “NOI Error” shall mean, with respect to any applicable
 Payment Date, an amount equal to difference of (i) the actual Net Cash Flow
 Before Debt Service for the applicable Interest Period as determined by
 Lender in its sole but good faith discretion after Lender’s review of the
 Monthly Income Report, less (ii) the amount of Net Cash Flow
 Before Debt Service actually delivered by Borrower for the payment of the
 Accrual Period Monthly Payment Amount.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “Imputed Debt Service” shall mean the product of (A) an
 imputed constant monthly amount of debt service that would be due under the
 Building Loan or the Project Loan, as applicable, based upon (i) the
 outstanding principal amount of the applicable Loan as of the date hereof,
 (ii) the Interest Rate and (iii) a twenty-five (25) year amortization period,
 times (B)
 12. 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “Interest Reserve Release DSCR” shall mean
 a ratio for the applicable period in which:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 (a) the numerator is the Net Operating Income (using annualized
 Operating Expenses for any recurring expenses not paid monthly (e.g., Taxes
 and Insurance Premiums)) as set forth in the statements required hereunder, without deduction for
 actual management fees incurred in connection with the operation of the Property less (A)
 management fees equal to the greater
 of (1) assumed management fees of six percent (6%) of Gross Income from Operations or (2) the actual
 management fees incurred, and (B) Replacement Reserve Fund
 contributions equal to $16,500.00 per annum;
 and

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 (b) the denominator is the sum of (i) the Imputed Debt Service with 

 


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 respect to the Building Loan and (ii) the Imputed Debt Service with
 respect to the Project Loan.

 
	
  

 	
  

 
	
  

 	
 “Loan Hold Period” shall mean the period commencing on the
 BLA Modification Effective Date and continuing until forty-five (45) days
 after the date on which Lender sends written notice to Borrower of Lender’s
 good faith election to market the Loan for sale (the “Marketing Notice”);
 provided, however, that the Loan Hold Period shall automatically be extended
 for one and only one additional forty-five (45) day period if Borrower
 delivers to Lender, at any time during the original forty-five (45) day
 period, a fully executed Loan Offer Agreement.

 
	
  

 	
  

 
	
  

 	
 “Loan Offer Agreement” shall mean a bona-fide loan commitment
 or term sheet fully executed by an Approved Lender and Borrower, reasonably
 acceptable to Lender, evidencing such Approved Lender’s intent to make a loan
 to Borrower by no later than the last day of the Loan Hold Period and in an
 amount generating sufficient net proceeds to prepay the Debt and the debt
 evidenced by the Project Loan Documents in full in accordance with the terms
 hereof and the other Loan Documents. Notwithstanding the foregoing, no
 proposed Loan Offer Agreement shall constitute a Loan Offer Agreement for
 purposes hereof unless it is accompanied by an Officer’s Certificate of
 Borrower certifying to the matters set forth in the first sentence of this
 definition and such other related matters as may be reasonably requested by
 Lender. 

 
	
  

 	
  

 
	
  

 	
 “Monthly Income Report” has the meaning set forth in Section
 5.1.11(h) hereof.

 
	
  

 	
  

 
	
  

 	
 “Monthly Interest Payment Amount” shall mean an amount equal
 to interest only on the outstanding principal balance of the Building Loan,
 calculated in accordance with Section 2.2 hereof.

 
	
  

 	
  

 
	
  

 	
 “Net Cash Flow Before Debt Service” shall have the meaning
 set forth in the definition of “Accrual Period Monthly Payment Amount”.

 
	
  

 	
  

 
	
  

 	
 “P&I Payment Amount” shall mean an amount based upon (i)
 interest accrued on the outstanding principal balance of the Building Loan
 (including any Accrued Interest which has been added to the outstanding
 principal balance of the Loan, if any) in accordance with Section 2.2 hereof
 and (ii) a principal payment based on the then outstanding principal balance
 of the Building Loan (including any Accrued Interest which has been added to
 the outstanding principal balance of the Loan, if any) and a twenty-five (25)
 year amortization schedule); it being specifically understood that the amount
 required to be paid to Lender above shall be calculated by Lender no less
 than fifteen (15) Business Days prior to the Payment Date occurring in May
 2012 and such calculation shall be conclusive and binding on Borrower absent
 manifest error. 

 
	
  

 	
  

 
	
  

 	
 “PLA Modification Agreement” shall mean that certain Second
 Amendment to 

 


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 Project Loan Agreement and Amendment of Certain Other Loan Documents,
 dated as of the BLA Modification Effective Date, by and among Borrower,
 Lender, Guarantor and Manager.

 


          (c) The
second and third sentences of Section 2.3.1 of the Building Loan Agreement are
hereby deleted in their entirety. 


          (d) The
following shall be incorporated into the Building Loan Agreement as Section
2.4.6:


	
  

 	
  

 
	
  

 	
 Section 2.4.6 Permitted Prepayment Prior to Loan Sale.
 (a) Notwithstanding anything to the contrary herein or in any of the other
 Loan Documents, during the Loan Hold Period, provided no Event of Default
 exists, Borrower may, at its option, prepay the Debt in whole (but not in
 part) upon thirty (30) days prior irrevocable notice to Lender, without
 payment of the Yield Maintenance Premium or the requirement to defease the
 Loan; provided, however, if for any reason Borrower prepays the Loan on a
 date other than a Payment Date, Borrower shall pay Lender, in addition to the
 Debt, all interest which would have accrued on the amount of the Loan through
 and including the Payment Date next occurring following the date of such
 prepayment. For purposes of clarification, Borrower right to prepay the Loan
 pursuant to this Section 2.4.6 is a one-time right to prepay the Loan in
 whole (but not in part).

 
	
  

 	
  

 
	
  

 	
 (b) Provided that (i) no Event of Default is then continuing, (ii)
 Borrower has elected to prepay the Loan pursuant to the express terms of
 Section 2.4.6(a) above and (iii) provided
 that the Mortgage continues to secure a bona fide obligation of the Borrower, Lender
 agrees to assign the Note and the Mortgage (the “Refinancing Assignment”), all
 without recourse, covenant or warranty of any nature, express or implied
 (other than that Lender is the then holder of the Note and the Mortgage), to
 any party designated by
 Borrower (other than Borrower or a nominee of Borrower) (the “Mortgage
 Assignee”), provided that (A) Borrower
 shall have first caused the same to be purchased for an amount equal to the
 Debt (including, without limitation,
 all unpaid principal and accrued interest due)
 (the “Mortgage
 Purchase
 Price”) as set forth on a loan pay-off letter delivered by Lender
 or its servicer and upon payment by Borrower of (1) the reasonable out-of-pocket expenses of Lender incurred in
 connection with the assignments
 of mortgages and any related matters together with any nominal processing and
 administrative fees; and (2) Lender’s reasonable attorney’s fees for the
 preparation, delivery and performance of
 such assignment and related documents; (B) Borrower shall have caused the recording with the
 recorder’s office of Kings County of an executed Statement of Oath
 under Section 275 of the New York Real Property Law; and (C) such assignment is not then prohibited by any
 federal, state or local law, rule, regulation, order, or by any other governmental authority. Borrower shall be responsible for all taxes,
 recording fees and other charges payable in
 connection with such assignment. 

 


          (e) Section
2.12.3 of the Building Loan Agreement is hereby deleted in its entirety 


8









	
  

 	
  

 
	
 and replaced with the following:

 
	
  

 	
  

 
	
  

 	
 2.12.3 [Intentionally omitted].

 
	
  

 	
  

 
	
           (f) The
 following shall be incorporated in Section 5.1.11 of the Loan Agreement as
 Section 5.1.11(h):

 
	
  

 	
  

 
	
  

 	
 (h) During the Accrual Period, Borrower shall deliver to Lender,
 within thirty (30) days after the end of each Interest Period, a report
 detailing Borrower’s calculation of Net Cash Flow Before Debt Service for
 such prior Interest Period (including, without limitation, Borrower’s
 calculation of Net Operating Income, Gross Income From Operations, and
 Operating Expenses), which such report shall include such documents
 evidencing and/or supporting Borrower’s calculations as reasonably requested
 by Lender (such report, a “Monthly Income Report”). Each Monthly Income
 Report shall be subject to the review and approval of Lender, in its sole but
 good faith discretion.

 
	
  

 	
  

 
	
           (g) The
 words “after the Property shall have achieved the Required Ratios at
 Completion,” are hereby deleted in their entirety from the first sentence of
 Section 5.1.20.

 
	
  

 	
  

 
	
           (h)
 Section 5.1.28 of the Building Loan Agreement is hereby deleted in its
 entirety and Borrower and Lender hereby acknowledge and agree that Borrower
 has no further express promise to complete the construction of any
 Improvements.

 
	
  

 	
  

 
	
           (i) The
 following shall be incorporated into the Building Loan Agreement as Section
 5.1.47: 

 
	
  

 	
  

 
	
  

 	
 5.1.47 Transfer Taxes.

 
	
  

 	
  

 
	
  

 	
 (a) In the event of any sale or transfer of Borrower’s interest in
 the Property, or any part thereof, including any sale or transfer by reason
 of foreclosure of the Mortgage or any prior or subordinate mortgage or by
 deed in lieu of any such foreclosure, Borrower shall timely and duly
 complete, execute and deliver to Lender all forms and supporting
 documentation required by any taxing authority to estimate and fix any tax
 payable by reason of such sale or transfer or recording of the deed
 evidencing such sale or transfer, including any New York State Transfer Tax
 and New York City Real Estate Transfer Tax (individually, a “Transfer
 Tax” and collectively, the “Transfer Taxes”).

 
	
  

 	
  

 
	
  

 	
 (b) Borrower shall pay the Transfer Taxes that may hereafter become
 due and payable with respect to any sale or transfer of the property
 described in this Section 5.1.47, and in the event of a default of such
 payment, Lender may pay the same and the amount of such payment shall be
 added to the Debt secured hereby and, unless incurred in connection with a
 foreclosure of the Mortgage or deed in lieu of such foreclosure, be secured
 by the Mortgage.

 
	
  

 	
  

 
	
  

 	
 (c) In the event that Borrower fails to execute the same and such
 failure

 


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 continues for more than ten (10) days after Mortgagee requests
 Borrower to execute the same, Borrower hereby irrevocably constitutes and
 appoints Mortgagee as its attorney-in-fact, coupled with an interest, to
 prepare and deliver any questionnaire, statement, affidavit or tax return in
 connection with any Transfer Tax applicable to any foreclosure or deed in
 lieu of foreclosure described in this Article.

 
	
  

 	
  

 
	
  

 	
 (d) Borrower shall indemnify and hold harmless Lender against (i) any
 and all liability incurred by Lender for the payment of any Transfer Tax with
 respect to any transfer of Borrower’s interest in the Property, and (ii) any
 and all expenses reasonably incurred by Lender in connection therewith
 including, without limitation, interest, penalties and reasonable attorneys’
 fees.

 
	
  

 	
  

 
	
  

 	
 (e) The obligation to pay the taxes and indemnify Lender under this
 Section 5.1.47 is a personal obligation of Borrower (excluding its
 shareholders, directors and officers), whether or not Borrower is personally
 obligated to pay the Debt secured by the Mortgage and shall be binding upon
 and enforceable against the distributees, successors and assigns of Borrower
 with the same force and effect as though each of them had personally executed
 and delivered the Mortgage, notwithstanding any exculpation provision in
 favor of Borrower with respect to the payment of any other monetary
 obligations under the Mortgage.

 
	
  

 	
  

 
	
  

 	
 (f) In the event that Borrower fails or refuses to pay a tax payable
 by Borrower with respect to a sale or transfer by reason of a foreclosure of
 this Security Instrument in accordance with this Section 5.1.47, the amount
 of the tax, any interest or penalty applicable thereto and any other amount
 payable pursuant to Borrower’s obligation to indemnify Lender under this
 Section 5.1.47 may, at the sole option of Lender, be paid as an expense of
 the sale out of the proceeds of the mortgage foreclosure sale.

 
	
  

 	
  

 
	
  

 	
 (g) The provisions of this Section 5.1.47 shall survive any transfer
 and the delivery of the deed affecting such transfer. Nothing in this Section
 5.1.47 shall be deemed to grant to Borrower any greater rights to sell,
 assign or otherwise transfer the premises than are expressly provided in the
 Mortgage nor to deprive Lender of any right to refuse to consent to any
 transaction referred to in this Section 5.1.47.

 
	
  

 	
  

 
	
           (j)
 Section 5.2.12 of the Building Loan Agreement is hereby deleted in its
 entirety and replaced with the following: 5.2.12 [Intentionally omitted]. 

 
	
  

 	
  

 
	
           (k) All
 of the text of Section 7.1 of the Building Loan Agreement prior to the
 sentence commencing with the phrase “The Tax and Insurance Escrow Fund and
 the Monthly Debt Service Payment Amount...” shall be deleted in its entirety
 (including such text as set forth in Section 1.1 of the Second Amendment to
 the Building Loan Agreement) and replaced with the following:

 
	
  

 	
  

 
	
  

 	
 Section 7.1 Tax and Insurance Escrow Fund. On the
 BLA Modification

 


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 Effective Date, Borrower shall pay to Lender an amount that, when
 added to the amounts payable under the next sentence, will be sufficient to
 accumulate with Lender sufficient funds to pay all Taxes and Other Charges
 payable on the next due date thereof at least thirty (30) days prior to their
 respective due dates, and to pay all Insurance Premiums that Lender estimates
 will be payable for the next renewal of the coverage afforded by the Policies
 upon the expiration thereof at least thirty (30) days prior to the expiration
 of the Policies. In addition, Borrower shall pay to Lender (or shall cause
 Lender to advance) on each Payment Date occurring after the BLA Modification
 Effective Date (a) one-twelfth (1/12) of the Taxes and Other Charges that
 Lender estimates will be payable during the next ensuing twelve (12) months
 in order to accumulate with Lender sufficient funds to pay all such Taxes and
 Other Charges at least thirty (30) days prior to their respective due dates,
 and (b) one-twelfth (1/12) of the Insurance Premiums that Lender estimates
 will be payable for the renewal of the coverage afforded by the Policies upon
 the expiration thereof in order to accumulate with Lender sufficient funds to
 pay all such Insurance Premiums at least thirty (30) days prior to the
 expiration of the Policies (said amounts in (a) and (b) above hereinafter
 called the “Tax and Insurance Escrow Fund”).

 
	
  

 	
  

 
	
           (l)
 Section 7.2.1 of the Building Loan Agreement is hereby deleted in its
 entirety and replaced with the following:

 
	
  

 	
  

 
	
  

 	
 Section 7.2.1 Interest Reserve. Borrower shall
 deposit with Lender (i) the amount of $461,036.51 (the “Interest Reserve Deposit”)
 on the BLA Modification Effective Date (the “Interest Reserve Fund”).
 The account in which the Interest Reserve Fund is held shall hereinafter be
 referred to as the “Interest Reserve Account”.
 Notwithstanding the foregoing, Borrower hereby authorizes Lender to disburse
 the remaining amounts on deposit pursuant to the terms of the Rate Lock
 Agreement, in the amount of $461,036.51, to be applied to satisfy Borrower’s
 Interest Reserve Deposit obligation set forth herein.

 
	
  

 	
  

 
	
           (m)
 Section 7.2.2 of the Building Loan Agreement is hereby deleted in its
 entirety and replaced with the following:

 
	
  

 	
  

 
	
  

 	
 Section 7.2.2 Release of Interest Reserve Funds.
 Provided no Event of Default or monetary Default exists (i) during the
 Accrual Period, Interest Reserve Funds shall only be released from the
 Interest Reserve Account pursuant to the terms of the definition of Accrual
 Period Monthly Payment Amount and (ii) at any time after the end of the
 Accrual Period, to the extent Net Cash Flow Before Debt Service for the
 applicable Payment Date is less than the applicable P&I Payment Amount
 which would otherwise be due with respect to each of the Building Loan and
 the Project Loan (as applicable, the “P&I Shortfall”), then Borrower hereby
 irrevocably directs Lender to apply a portion of the remaining Interest
 Reserve Fund, to the extent sufficient funds are then available to satisfy
 the applicable P&I Shortfall, in an amount equal to the P&I
 Shortfall, in order to pay the applicable Monthly Debt Service Payment
 Amount.

 


11









	
  

 	
  

 
	
  

 	
 Notwithstanding the foregoing or anything
 to the contrary contained herein, provided that no Event of Default
 or monetary Default exists, if, at any
 time after the end of the Accrual Period, Lender determines that the Property
 has achieved an Interest Reserve Release DSCR of 1.10 to 1.00 (calculated based upon (A) with
 respect to rental income as a component of Gross Income from
 Operations, the rental income of the Property for the three (3) month period
 preceding the date of calculation (as annualized) and (B) with respect to all
 other components of Net Operating Income, such amount for the twelve (12)
 month period preceding the date of calculation) for three (3) consecutive months (with the first
 of such three (3) months being no earlier than May, 2012), Lender shall, promptly after written notice
 from Borrower to Lender, release to Borrower any amount remaining in the
 Interest Reserve Account. 

 
	
  

 	
  

 
	
           (n) The
 first sentence of Section 7.3.1 of the Building Loan Agreement is hereby
 deleted in its entirety and replaced with the following:

 
	
  

 	
  

 
	
  

 	
 Borrower shall pay to Lender the following amounts: $1,375.00 (the “Replacement
 Reserve Monthly Deposit”) on each Payment Date occurring after the
 BLA Modification Effective Date, for replacements and repairs required to be
 made to the Property (collectively, the “Replacements”).

 
	
  

 	
  

 
	
           (o)
 Section 7.4 of the Building Loan Agreement is hereby deleted in its entirety
 and replaced with the following: [Intentionally omitted].

 
	
  

 	
  

 
	
           (p)
 Section 7.7 of the Building Loan Agreement is hereby deleted in its entirety
 and replaced with the following: [Intentionally omitted].

 
	
  

 	
  

 
	
           (q) The
 sixth and seventh sentences of Section 7.11 of the Loan Agreement are hereby
 deleted in their entirety replaced with the following: 

 
	
  

 	
  

 
	
  

 	
 Interest earned on the Replacement Reserve Funds and the Interest
 Reserve Funds shall be added to and become a part of such Reserve Fund and
 shall be disbursed in the same
 manner as other monies deposited in such Reserve Fund. Any interest on the Tax
 and Insurance Escrow Funds shall not be added to or become a part thereof and
 shall be the sole property of and shall be paid to Lender.

 
	
  

 	
  

 
	
           (r)
 Sections 8.1(a)(xiii), (xiv), (xv), (xvii) and (xviii) of the Building Loan
 Agreement are each hereby deleted in its entirety and each replaced with the
 following: [Intentionally omitted]; 

 
	
  

 	
  

 
	
           (s)
 Section 8.1(a)(xxi) of the Building Loan Agreement is hereby deleted in its
 entirety and each replaced with the following: (xxi) if, during the Accrual
 Period, Borrower shall fail to deliver to Lender all Net Cash Flow Before
 Debt Service for the second preceding Interest Period as and when due;

 
	
  

 	
  

 
	
           (t) The
 “.” at the end of Section 9.3(ix) of the Building Loan Agreement is hereby
 deleted and replaced with “; or”.

 


12









	
  

 	
  

 
	
           (u) The
 following shall be incorporated into the Building Loan Agreement as Section
 9.3(x):

 
	
  

 	
  

 
	
 (x) if,
 during the Accrual Period, Borrower fails to deliver to Lender all Net Cash
 Flow Before Debt Service for the second preceding Interest Period as and when
 due.

 
	
  

 	
  

 
	
           (v) The
 words “or (v) if Borrower fails to obtain Lender’s prior written consent to
 any Transfer as Required by this Agreement or the Mortgage.” at the end of
 the unnumbered paragraph at the end of Section 9.3 of the Building Loan
 Agreement are hereby deleted in their entirety and replaced with the
 following: 

 
	
  

 	
  

 
	
  

 	
 (v) if Borrower fails to obtain Lender’s prior written consent to any
 Transfer as Required by this Agreement or the Mortgage; (vi) any litigation
 or other legal proceeding related to the Debt filed by a Borrower Party that
 delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes
 with or frustrates the efforts of Lender to exercise any rights and remedies
 available to Lender as provided herein and in the other Loan Documents; (vii)
 any action by a Borrower Party contesting the end date of the Loan Hold
 Period; (viii) any misrepresentation set forth in (a) the affidavit made pursuant to and in compliance with
 Section 22 of the Lien Law in
 connection with the filing of this Agreement or any amendment or modification
 thereto or (b) Section 1 of the Amendment; or (ix) Borrower’s failure to comply with the obligations set forth
 in Section 5.1.47 hereof.

 
	
  

 	
  

 
	
           (w)
 Pursuant to Section 10.6 of the Building Loan Agreement, if a notice is to be
 given to Lender, such notice shall be given to: 

 
	
  

 	
  

 
	
  

 	
 Federal
 Reserve Bank of New York

 33 Liberty Street

 New York, New York 10045

 Attention: Helen Mucciolo 

 Fax: (212) 720-1530

 
	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Federal
 Reserve Bank of New York

 33 Liberty Street

 New York, New York 10045

 Attention: Stephanie Heller, Esq.

 Fax: (212) 720-1953

 
	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 BlackRock
 Financial Management Inc.

 55 East 52nd Street

 New York, New York 10055

 




13







	
  

 	
  

 
	
  

 	
 Attention:
 Frank Pomar

 Fax: (212) 810-5666

 
	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Alston &
 Bird LLP

 90 Park Avenue

 New York, New York 10016

 Attention: Gerard Keegan, Esq.

 Fax: (212) 210-9444

 


                              4.
Agreement with respect to Additional Mezzanine Loan.


          Borrower,
Guarantor and Lender hereby acknowledge and agree that an Additional Mezzanine
Loan shall not be permitted under Section 5.2.14 of the Building Loan Agreement
and Borrower shall not be entitled to cause an Additional Mezzanine Loan
Borrower to obtain an Additional Mezzanine Loan. Borrower and Guarantor hereby
further acknowledge and agree that mezzanine indebtedness of any kind shall be
expressly prohibited under the terms of the Loan Documents, as amended hereby. 


                              5.
Guarantor Financial Statements.


          Notwithstanding
anything to the contrary herein or in the other Loan Documents, Guarantor shall
furnish to Lender (i) quarterly, within thirty (30) days following the end of
each calendar quarter and (ii) annually, within one hundred and twenty (120)
days following the end of each Fiscal Year, a complete copy of Guarantor’s
financial statements covering the applicable corresponding period then ended,
including a balance sheet and income statement of Guarantor. With respect to
Guarantor’s annual financial statements, such statements shall be audited in
accordance with GAAP by BDO Seidman (so long as they are licensed certified
public accountants) and shall include a complete copy of Guarantor’s federal
and New York state income tax returns for the immediately preceding tax year
within thirty (30) days after timely filing of same given all allowable
extensions of time to file.


                              6.
Ratification. 


          (a)
Borrower hereby ratifies and confirms to Lender that all of the terms, representations,
warranties, covenants, indemnifications and provisions of the Loan Documents
are and shall remain in full force and effect, and are true and correct with
respect to Borrower without change except as otherwise expressly and
specifically modified by this Amendment. Borrower hereby agrees to continue to
be bound by terms, representations, warranties, covenants, indemnifications and
provisions of the Loan Documents.


          (b)
Guarantor hereby ratifies and confirms to Lender that all of the terms,
representations, warranties, covenants, indemnifications and provisions of the
Loan Documents, including without limitation, the Guaranty of Completion (as
defined in the Building Loan Agreement), the Guaranty of Recourse Carve Outs
(as defined in the Building Loan Agreement) and the Environmental Indemnity (as
defined in the Building Loan Agreement), are and shall 


14





remain in full force and effect, and are true and correct with respect
to Guarantor without change except as otherwise expressly and specifically
modified by this Amendment. Guarantor hereby agrees to continue to be bound by
the terms, representations, warranties, covenants, indemnifications and
provisions of the Loan Documents, including, without limitation, the Guaranty
of Completion, the Guaranty of Recourse Carve Outs and the Environmental
Indemnity.


                              7.
Release and Waiver of Claims, Defenses and Rights of Set Off. 


          (a) Each of
Borrower and Guarantor acknowledge that Lender has performed all obligations
and duties owed to Borrower and Guarantor under the Loan Documents through the
date hereof.


          (b) As
additional consideration for entering into this Amendment, each of Borrower and
Guarantor hereby unconditionally and irrevocably forever releases, waives and
forever discharges Lender, BlackRock Financial
Management Inc., the Federal Reserve Bank of New York, Maiden Lane LLC and
any Servicer of the Loan (together with each of their respective predecessors,
successors and assigns, each of their respective Affiliates and each of their
respective officers, directors, employees, agents and representatives) (each, a
“Releasee”
and, collectively, the “Releasees”) from any action, cause of
action, suit, debt, defense, right of set off or other claim arising on or
prior to the date hereof, whatsoever, in law or in equity, arising out of or in
connection with this Amendment and/or the other Loan Documents, known or
unknown against the Releasees. 


          (c) Each of
Borrower and Guarantor, on behalf of itself and its successors, assigns,
Affiliates and other legal representatives, hereby absolutely, unconditionally
and irrevocably, covenants and agrees with and in favor of each Releasee that
neither Borrower (nor any of its successors, assigns, Affiliates or other legal
representatives) nor Guarantor (nor any of its successors, assigns, Affiliates
or other legal representatives) will sue (at law, in equity, in any regulatory
proceeding or otherwise) any Releasee on the basis of any claim released, remised
and discharged by such Borrower pursuant to Section 8(a) above. If either of
Borrower (or any of its successors, assigns, Affiliates or other legal
representatives) or Guarantor (or any of its successors, assigns, Affiliates or
other legal representatives) violates the foregoing covenant, such party agrees
to pay, in addition to such other damages as any Releasee may sustain as a
result of such violation, all reasonable attorneys’ fees and costs incurred by
any Releasee as a result of such violation. 


          (d) Lender
hereby waives the Events of Defaults specifically alleged in (i) that certain
letter to Borrower, dated as of June 4, 2009, from Lender, (ii) that certain
letter to Borrower, dated as of July 2, 2009, from Stites & Harbison PLLC,
(iii) that certain letter to Borrower and Guarantor, dated as of December 4,
2009, from Alston & Bird LLP, and (iv) that certain letter to Otterbourg,
Steindler, Houston & Rosen, P.C., dated as of March 25, 2010, from Alston
& Bird LLP. 


                              8.
No Novation.


          The parties
do not intend this Amendment nor the transactions contemplated hereby to 


15





be, and this Amendment and the transactions contemplated herby shall
not be construed to be, a novation of any of the obligations owing by the
Borrower under or in connection with the Loan Documents. Further, the parties
do not intend this Amendment nor the transactions contemplated hereby to affect
the priority of Lender’s first priority lien in any of the collateral securing
the Note in any way, including, without limitation, the liens, security
interests and encumbrances created by the Mortgage and the other Loan Documents


                              9.
Representations, Warranties, and Covenants. 


          (a)
Borrower and Guarantor agree that all of the representations, warranties, and
covenants contained in the Loan Documents continue to be true and correct as of
the date hereof, and Borrower and Guarantor hereby agree to continue to be
bound by the representations, warranties, and covenants on and after the date
hereof. Borrower and Guarantor agree that any default under this Amendment
shall constitute an Event of Default under the Loan Documents.


          (b) Lender
represents and warrants to Borrower and Guarantor that Lender has advised the
Servicer and any agents acting on behalf of Lender of the terms and provisions
of the Loan Documents as amended by this Amendment.


          (c) Lender,
Borrower and Guarantor hereby represent and warrant that the Completion of the
Improvements occurred on or about June 22, 2009. 


          (d)
Borrower hereby represents and warrants that (i) Borrower has obtained a
Certificate of Eligibility under the Industrial and Commercial Incentive
Program, (ii) Borrower has obtained an extension of the conditional use permit
for the Property permitting the Property to be used as a self-storage facility
and (iii) Borrower has removed, or caused to be removed, all USTs (as defined
in the Building Loan Agreement) and ASTs (as defined in the Building Loan Agreement).


                              10.
[Intentionally omitted]. 


                              11.
Miscellaneous.


          (a) The
Recitals set forth above are true and correct and are hereby incorporated into
the body of this Amendment by reference. 


          (b)
Capitalized terms used herein and not specifically defined herein shall have
the respective meanings ascribed to such terms in the Building Loan Agreement.
The definition of “Agreement” set forth in the Building Loan Agreement shall be
deemed to include this Amendment. Additionally, the definition of “Loan
Agreement” and “Loan Documents” as set forth in the Loan Documents shall be
deemed to include this Amendment and the other documents entered into in
connection with this Amendment.


          (c) All
exhibits and schedules attached hereto are incorporated in this Amendment and
are expressly made a part hereof.


          (d) This
Amendment has been duly executed and delivered by Borrower and Guarantor and is
the legal, valid and binding obligation of Borrower and Guarantor, enforceable 


16





in accordance with its terms, except as enforceability may be affected
by applicable bankruptcy, insolvency, and similar proceedings affecting the
rights of creditors generally, and general principles of equity.


          (e) This
Amendment may be executed in any number of counterparts with the same effect as
if all parties hereto had signed the same document. All such counterparts shall
be construed together and shall constitute one and the same instrument, but in
making proof hereof it shall be necessary to produce only one such counterpart.
Any counterpart delivered by facsimile, pdf or other electronic means shall
have the same import and effect as original counterparts and shall be valid,
enforceable and binding for the purposes of this Amendment. This Amendment
shall not be binding, however, until all parties hereto have signed and
delivered a counterpart of this Amendment.


          (f) The
parties hereto agree that, except as specifically set forth herein, this
Amendment (i) does not amend, waive, satisfy, terminate, diminish or otherwise
modify any of the terms, conditions, provisions and/or agreements contained in
the Loan Documents and (ii) does not constitute a waiver, release or limitation
upon Lender’s exercise of any of its rights and remedies under the Loan
Documents, all of which are hereby expressly reserved. This Amendment shall not
relieve or release the Borrower or Guarantor in any way from any of their
respective duties, obligations, covenants or agreements under the Loan
Documents or from the consequences of any Event of Default thereunder. This
Amendment shall not obligate Lender, or be construed to require Lender, to
waive any Event of Default or defaults, whether now existing or which may occur
after the date hereof.


          (g) This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns, except the terms and provisions of Section 2.4.6 of the Building Loan
Agreement shall specifically not be binding on any successor or assign of U.S.
Bank National Association, not individually but solely as trustee for the
Maiden Lane Commercial Mortgage-Backed Securities Trust 2008-1.


          (h) Except
as expressly modified pursuant to this Amendment, all of the terms, covenants
and provisions of the Loan Agreement and the other Loan Documents shall
continue in full force and effect. In the event of any conflict or ambiguity
between the terms, covenants, and provisions of this Amendment and those of the
Loan Agreement or the other Loan Documents, the terms, covenants, and
provisions of this Amendment shall control.


          (i) This
Amendment, and any provisions hereof, may not be modified, amended, waived,
extended, changed, discharged or terminated orally or by any act or failure to
act on the part of any party hereto, but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.


          (j) This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York, without regard to principles of conflict of laws and any
applicable law of the United States of America.


          (k)
Borrower shall pay, on demand, all reasonable costs and expenses of Lender 


17





(including reasonable fees, costs and expenses of counsel to Lender)
incurred in connection with the negotiation, preparation, execution and delivery
of this Amendment, and the modification and amendment of the other Loan
Documents, the closing of the restructure of the Loan and the transactions
contemplated thereby.


          (l) Each
party hereto acknowledges that it has participated in the negotiation of this
Amendment, and agrees that no provision of this Amendment shall be construed
against or interpreted to the disadvantage of any party by any court or other
governmental or judicial authority by reason of such party having or being
deemed to have structured, dictated or drafted such provision. Each of the
parties hereto at all times have had access to an attorney in the negotiation
of the terms and in the preparation and execution of this Amendment, and the
parties hereto each have had the opportunity to review and analyze this
Amendment for a sufficient period of time prior to execution and delivery. All
of the terms of this Amendment were negotiated at arm’s length, and were
prepared and executed without fraud, duress, undue influence or coercion of any
kind exerted by either party upon the other. The execution and delivery of this
Amendment is the free and voluntary act of each of the parties hereto.


          (m)
Borrower shall deliver to Title Company an original executed counterpart of this
Amendment and all related documentation necessary for the recording of this
Amendment in the Clerk’s Office and Borrower shall pay all fees and expenses in
order to file this Amendment in the Clerk’s Office. Borrower shall cause this
Amendment to be filed within five (5) days with the Office of the Clerk of the
County of Kings.


          (n)
Attached hereto as Exhibit B is the Amended and Restated N.Y. Lien Law
Statement which amends and restates that certain N.Y. Lien Law Statement filed
in connection with the Building Loan Agreement on January 10, 2008 in Control 002427648-01, which evidences that the
remaining net sums available to Borrower from the Loan to pay contractors,
subcontractors, laborers and materialmen for the cost of the Improvements has been
reduced to zero.


 [NO FURTHER TEXT ON THIS PAGE]


18






          IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their duly authorized representatives, all as of the day and year
first above written. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BORROWER:

 
	
  

 	
  

 	
  

 
	
  

 	
 ACADIA ATLANTIC AVENUE, LLC, a Delaware

 
	
  

 	
 limited
 liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
    /s/ Robert
 Masters

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:
  Robert Masters

 
	
  

 	
 Title:
    Senior Vice President

 






	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 WESTCHESTER

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally
appeared Robert Masters, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Debra Leibler-Jones

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Debra
 Leibler Jones

 
	
  

 	
 State of New
 York-Notary Public

 
	
  

 	
 No.
 01LE6005994

 
	
  

 	
 Qualified in
 Dutchess County

 
	
  

 	
 Comm. Exp.
 04/20/2014

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LENDER:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 U.S. BANK NATIONAL ASSOCIATION, NOT
 INDIVIDUALLY BUT SOLELY AS TRUSTEE FOR THE MAIDEN LANE COMMERCIAL MORTGAGE
 BACKED SECURITIES TRUST 2008-1

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 Bank of
 America, N.A., as Master Servicer

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:

 	
    /s/
 Steven M. Vaughn

 
	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:  Steven
 M. Vaughn

 
	
  

 	
  

 	
 Title:    Director

 






	
  

 	
  

 
	
 STATE OF
 NORTH CAROLINA

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 MECKLENBURG

 	
 )

 



On the 19th
day of October, in the year 2010, before me the undersigned, personally
appeared Steven M. Vaughn, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Yolanda Bonet

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Yolanda
 Bonet

 
	
  

 	
 Notary
 Public

 
	
  

 	
 Mecklenburg
 County

 
	
  

 	
 North
 Carolina

 
	
  

 	
 My
 Commission Expires Jun. 3, 2013

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 GUARANTOR:

 
	
  

 	
  

 	
  

 
	
  

 	
 ACADIA STRATEGIC OPPORTUNITY FUND II,

 
	
  

 	
 LLC, a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
    /s/
 Robert Masters

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:  Robert
 Masters

 
	
  

 	
 Title:    Senior
 Vice President

 






	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 WESTCHESTER

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally
appeared Robert Masters, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Debra Leibler-Jones

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Debra
 Leibler Jones

 
	
  

 	
 State of New
 York-Notary Public

 
	
  

 	
 No.
 01LE6005994

 
	
  

 	
 Qualified in
 Dutchess County

 
	
  

 
	
  

 	
 Comm. Exp.
 04/20/2014

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 GUARANTOR:

 
	
  

 	
  

 	
  

 
	
  

 	
 POST MANAGEMENT, LLC, a Delaware limited

 
	
  

 	
 liability
 company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
    /s/ Marc
 Slayton

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:  Marc
 Slayton

 
	
  

 	
 Title:    President/Manager

 






	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF WESTCHESTER

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally
appeared Marc Slayton, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Debra Leibler-Jones

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Debra
 Leibler Jones

 
	
  

 	
 State of New
 York-Notary Public

 
	
  

 	
 No.
 01LE6005994

 
	
  

 	
 Qualified in
 Dutchess County

 
	
  

 
	
  

 	
 Comm. Exp.
 04/20/2014

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 MANAGER:

 
	
  

 	
  

 	
  

 
	
  

 	
 SELF STORAGE MANAGEMENT LLC, a

 
	
  

 	
 Delaware limited
 liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
   /s/
 Bruce Roch

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:  Bruce
 Roch

 
	
  

 	
 Title:    Chief
 Executive Officer

 






	
  

 	
  

 
	
 STATE OF
 GEORGIA

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 FULTON

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally appeared
Bruce Roch, personally known to me on the basis of satisfactory evidence to be
the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity, and that
by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Jada Cowans

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Jada Cowans

 
	
  

 	
 Notary
 Public, Henry County, Georgia

 
	
  

 	
 My
 Commission Expires May 20, 2013

 









EXHIBIT A


LEGAL DESCRIPTION


ALL
THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE
BOROUGH OF BROOKLYN, COUNTY OF KINGS, CITY AND STATE OF NEW YORK, BOUNDED AND
DESCRIBED AS FOLLOWS, TO WIT:


BEGINNING
AT A POINT FORMED BY THE INTERSECTION OF THE NORTHERLY LINE OF ATLANTIC AVENUE (120 FEET IN
WIDTH), WITH THE EASTERLY LINE OF EUCLID AVENUE (66 FEET IN WIDTH) AND FROM
SAID POINT OF BEGINNING RUNNING THENCE;


1. RUNNING ALONG SAID
EASTERLY LINE OF EUCLID AVENUE, NORTH 11o 00’ 00” WEST, A DISTANCE OF 211 FEET AND 6 INCHES
LOCAL STANDARD, 211 FEET AND 8 1/2 INCHES UNITED STATES STANDARD, THENCE;


2. ALONG A LINE AT RIGHT
ANGLES TO SAID EUCLID AVENUE, NORTH 79o 00’ 00” EAST, A DISTANCE OF 100.00 FEET
LOCAL STANDARD, 100 FEET 1 1/4 INCHES UNITED STATES STANDARD, THENCE;


3. ALONG THE LINE BEING
PARALLEL TO SAID EUCLID AVENUE, NORTH 11o 00’ 00” WEST, A DISTANCE OF 330.00 FEET LOCAL STANDARD, 330 FEET AND 4
INCHES UNITED STATES STANDARD, THENCE;


4. ALONG
A LINE AT RIGHT ANGLES TO SAID EUCLID AVENUE, NORTH 79o 00’ 00” EAST, A
DISTANCE OF 52 FEET AND 11 1/4 INCHES LOCAL STANDARD, 52 FEET AND 11 7/8 INCHES
UNITED STATES STANDARD,
THENCE;


5. ALONG THE EASTERLY LINE
OF SAID LOTS 23, 13 & 1, BLOCK 4145, SOUTH 11o 03’ 56” EAST, A DISTANCE OF 515 FEET AND 1 1/2 INCHES LOCAL STANDARD, 515 FEET AND 6
5/8 INCHES UNITED STATES STANDARD TO THE NORTHERLY LINE OF SAID ATLANTIC AVENUE, THENCE;


6. ALONG SAID NORTHERLY
LINE OF ATLANTIC AVENUE, SOUTH 69o 13’ 14” WEST, A DISTANCE OF 155 FEET AND 9 1/4 INCHES
LOCAL STANDARD, 155 FEET AND 10 3/4 INCHES UNITED STATES STANDARD TO THE POINT AND
PLACE OF BEGINNING.






EXHIBIT B 


LIEN LAW STATEMENT





AFFIDAVIT PURSUANT TO SECTION 22 OF THE

LIEN LAW OF THE STATE OF NEW YORK


	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
 ) ss.:

 
	
 COUNTY OF
 WESTCHESTER

 	
 )

 



          ROBERT
MASTERS, being duly sworn, deposes and says that: 


          1.
I reside at Westchester County, New York, and am the Senior Vice
President of Acadia Atlantic
Avenue LLC, a Delaware limited liability company (“Borrower”). 


          2.
I give this Affidavit, on behalf of Borrower in my capacity as Senior
Vice President of Borrower, in connection with that certain Building Loan
Agreement, dated as of December 26, 2007, which Building Loan Agreement was
filed in the office of the Clerk of Kings County (“County Clerk”) on January 10, 2008 in Control 002427648-01 (as the same may be
amended, renewed, modified, extended, replaced or supplemented from time to
time, the “Building Loan Agreement”).



          3.
The original amount of the Loan under the Building Loan Agreement was up
to $11,229,260.33 (the “Original Loan Amount”).



          4.
As of the date hereof, the amount of the Loan under the Building
Agreement is up to $10,140,619.77 (the “Modified
Loan Amount”). 


          5.
The consideration paid, or to be paid, by Borrower for the Loan
described herein is: None. 


          6.
The amount, if any, to be advanced from the Loan to repay amounts
previously advanced to Borrower pursuant to Notices of Lending for costs of the
improvement is: None. 


          7.
The amount previously advanced from the Loan to reimburse Borrower for
the Improvement expended by Borrower after the commencement of the Improvements
but prior to the date of the initial advance of the Loan under the Building
Loan Agreement was: None. 


          8.
The amount previously advanced from the Loan under the Building Loan
Agreement for expenses incurred after the commencement of the Improvements but
prior to the date hereof for the following items is: 


                              Contingency:
$0.00

                              Total:
$0.00 


          9.
The estimated amount to be advanced from the Loan for expenses which may
become due and payable after the date hereof and during the construction of the
Improvements for items such as bond and insurance premiums, fees of architects,
engineers and surveyors, taxes, permits, assessments, water and sewer rents and
contingency reserve is: None. 


          10.
(a) The original net sum available to Borrower from the Original Loan
Amount to pay contractors, subcontractors, laborers and materialmen for the
Improvement was:





$10,178,856.12, less such amounts as may not be advanced and disbursed
under the Building Loan Agreement due to the nonsatisfaction of conditions to
the advance and disbursement of such amounts contained in the Building Loan
Agreement. 


                    (b)
The net sum available to Borrower from the Modified Loan Amount to pay
contractors, subcontractors, laborers and materialmen for the Improvement is:
$10,140,619.77, less such amounts as may not be advanced and disbursed under
the Building Loan Agreement due to the nonsatisfaction of conditions to the
advance and disbursement of such amounts contained in the Building Loan
Agreement, as modified.




          11. The amount previously advanced from the Loan to reimburse
Borrower for the Improvement expended by Borrower after the date of the initial
advance of the Loan under the Building Loan Agreement but prior to the date
hereof is: $10,140,619.77. 


          12.
The net sum available to Borrower from the Loan to pay contractors,
subcontractors, laborers and materialmen for the Improvement after the date
hereof is: None. 


          13.
No portion of the net sum available set forth above is available for the
payment of the performance of real estate brokerage services in obtaining a
lessee for a term of more that three years of all or any part of real property
to be used for other than residential purposes pursuant to a written contact of
brokerage employment or compensation. 


          14.
This affidavit is made pursuant to and in compliance with Section 22 of
the Lien Law of the State of New York and is hereby made a part of the Building
Loan Agreement. 


          15.
If Borrower is a corporation, partnership or limited liability company,
this statement is verified by deponent and not by Borrower because Borrower is
a corporation, partnership or limited liability company of which the deponent
is an officer, member or general partner. 


[No Further
Text on This Page]


- 27 -





The facts stated
above and any costs itemized on this statement are true, to the knowledge of
the undersigned. 


	
  

 	
  

 
	
 Sworn to
 before me this 18th

 	
 /s/ Robert
 Masters

 
	
 day of
 October, 2010.

 	
 ROBERT MASTERS, Senior Vice President

 






	
  

 
	
 /s/ Debra
 Leibler-Jones

 
	
  

 
	
 Debra
 Leibler-Jones

 
	
 Notary
 Public

 
	
 No.
 01LE6005934

 
	
 Qualified in
 Dutchess County

 
	
 Comm. Exp.
 04/20/14

 
	
 State of New
 York

 









SCHEDULE I


Work Providers


	
  

 
	
 4 STAR CONTRACTING, INC.

 
	
 A.H. HARRIS & SONS INC.

 
	
 ACCURATE SITE SAFETY

 
	
 AEC REPROGRAPHICS

 
	
 AKERMAN SENTERFITT LP

 
	
 ALL GLASS SYSTEMS INC.

 
	
 ALPINE READY MIX INC.

 
	
 ARCHITECTURAL DOORS

 
	
 AT&T MOBILITY II, LLC

 
	
 ATLANTIC ENGINEERING
 LABORATORIES

 
	
 BANK OF AMERICA

 
	
 BANKS SHAPIRO GETTINGER
 & WALDINGER

 
	
 BESAM ENTRANCE SOLUTIONS

 
	
 BIG APPLE CONCRETE SUPPLY
 INC.

 
	
 BILCO WIRE ROPE & SUPPLY
 CORP

 
	
 BROOKSIDE ENVIRONMENTAL,
 INC.

 
	
 BUTZ-WILBERN

 
	
 C.M. RICHEY ELECTRICAL
 CONTRACTOR

 
	
 CASINO PLUMBING &
 HEATING CO. INC.

 
	
 CELTIC BUILDING SUPPLIES
 INC.

 
	
 CINGULAR WIRELESS II, LLC

 
	
 CITY OF NEW YORK DEPARTMENT

 
	
 CON ED

 
	
 CON EDISON

 
	
 CONSTRUCTION DATA CORPORATION

 
	
 CONTROL POINT ASSOCIATES
 INC.

 
	
 CSC

 
	
 CUSTOM BOOK BINDERY INC.

 
	
 DELAWARE SECRETARY OF STATE

 
	
 DEMAND ELECTRIC INC.

 
	
 DESIGLINE CONSTRUCTION
 SERVICES INC

 
	
 DIAMOND POINT GLASS CO.
 INC.

 
	
 DPK CONSULTING LLC

 
	
 DTS

 
	
 EASTBAY STEEL INC.

 
	
 ELIAS SLAIBY

 
	
 EMG

 
	
 EMMERSON ESTRADA

 
	
 ETRE ASSOCIATES, LTD

 
	
 FASTERNAL COMPANY

 
	
 FEDERAL EXPRESS

 
	
 FIRST AMERICAN TITLE INS CO

 
	
 FJM FERRO, INC.

 
	
 FORTE EXPRESS PLUMBING
 & HEATING

 
	
 FROMM ELETRIC SUPPLY CORP.

 
	
 GMA MECHANICAL CORPORATION

 
	
 GRAINGER

 
	
 GREENBERG FARROW ARCHIT
 CORP

 
	
 GREENBERG TRAGER &
 HERBRST, LLP

 
	
 GUY SACCENTO

 
	
 HOME DEPOT CREDIT SERVICES

 
	
 ICC CONCRETE & MASONRY
 CORP

 
	
 INDEPENDENT EQUIPMENT CORP

 
	
 JANUS INTERNATIONAL
 CORPORATION

 
	
 JD REINFORCING SUPPLY

 
	
 JM WELDING CO. INC.

 
	
 JOHN CHRISTODOULOU

 
	
 JOHN SPERANDO

 
	
 JPR SPECIALTY CONSULTING

 
	
 KETCHUM DIRECTORY
 ADVERTISING

 
	
 KEYSPAN ENERGY DELIVERY

 
	
 LOUIS STRIAR, INC.

 
	
 M.E. SABOSIK ASSOCIATES,
 INC.

 
	
 MAHENDRANATH RAMSAHAI

 
	
 MARJAM SUPPLY CO., INC.

 
	
 METALLINE FIRE DOOR CO.,
 INC.

 
	
 METROPOLITAN VALUATION
 SERVICES

 
	
 MICHAEL ARIGOT

 
	
 MICHAEL S. LUTHER P.E.

 
	
 MODULEX PARTITION CORP

 
	
 MONZACK MERSKY MCLAUGHLIN

 
	
 MORRISON TRANSIT-MIX CORP

 
	
 MRC II CONTRACTING INC.

 
	
 NACIREMA INDUSTRIES, INC.

 
	
 NATIONAL CONSTRUCTION
 RENTALS

 
	
 NEW YORK CITY COMMISSION

 
	
 NEWCO CORPORATE SERVICES
 INC.

 
	
 NY REBAR INC.

 
	
 NYC DEPARTMENT OF BUILDINGS

 
	
 NYC DEPARTMENT OF FINANCE

 
	
 NYC DEPARTMENT OF
 TRANSPORTATION

 
	
 NYC DEPT OF BUILDINGS

 
	
 NYC FIRE DEPARTMENT

 
	
 NYC PARK OF RECREATIONS

 
	
 NYC WATER BOARD

 
	
 OEHLER CONTRACTING CORP.

 
	
 OLDCASTLE APG NORTHEAST,
 INC.

 
	
 OTTERBOURG, STEINDLER,
 HOUSTON OUR RENTAL CORP

 
	
 OUTSOURCE CONSULTANTS

 
	
 PC RICHARD & SON
 BUILDERS DIVISION

 
	
 PERIMETER BRIDGE &
 SCAFFOLD CO., INC

 
	
 PETTY CASH

 
	
 PHOENIX CONSTRUCTION LLC

 
	
 POLAND SPRINGS

 
	
 POST MANAGEMENT II, LLC

 
	
 POST MANAGEMENT, LLC

 
	
 PRO ENERGY SERVICES

 
	
 QUEENSBORO FENCE CO. INC.

 
	
 RADIANT CLEANING SERVICES,
 INC.

 
	
 RARITAN BAY CONTRACTING
 INC.

 
	
 RED WING ELECTRIC LLC

 













	
  

 
	
 RIKER DANZIG SCHERER HYLAND

 
	
 ROBERT DONOHUE

 
	
 ROCK TECH INC.

 
	
 ROMA ARCHITECTURAL
 WOODWORKING, INC

 
	
 RON WRENSEN

 
	
 SANDAK HENNESSEY &
 GRECO LLP

 
	
 SH5 CONSTRUCTION CORP.

 
	
 SHANKER LAW GROUP

 
	
 SIGN A RAMA USA

 
	
 SIGN-A-RAMA

 
	
 SIGNS BY TOMORROW

 
	
 SIMKISS AGENCY

 
	
 SPEEDY CONCRETE PUMPING
 & REPAIR IN SPRAY- RITE LLC

 
	
 SPRINT

 
	
 SS20 BUILDING SYSTEMS, INC

 
	
 STADTMAUER BAILKIN LLP

 
	
 STAPLES CREDIT PLAN

 
	
 STILLWELL MATERIALS CORP.

 
	
 STOLTE PAINTING, LLC

 
	
 TASZ CONSTRUCTION, INC.

 
	
 THYSSENKRUPP ELEVATOR
 CORPORATION

 
	
 TIMOTHY CLARK

 
	
 ULTIMATE ACCESS SOLUTIONS

 
	
 UNBUILD IT SERVICES, LTD

 
	
 UNITED STEEL PRODUCTS
 VERIZON, INC.

 
	
 VITAL SIGN SOURCE LTD

 
	
 W. B. MASON CO., INC.

 
	
 WACHTEL & MASYR LLP

 
	
 WHITESTONE ASSOCIATES INC.

 
	
 WILLIAM
 VITACCO ASSOCIATES, LTD

 











	
  

 
	
 SECOND AMENDMENT TO PROJECT LOAN AGREEMENT AND

 
	
 AMENDMENT OF CERTAIN OTHER LOAN DOCUMENTS

 
	
  

 
	
 Dated: as of October 20, 2010

 
	
  

 
	
 By and between

 
	
  

 
	
 ACADIA ATLANTIC AVENUE, LLC,

 
	
 as Borrower

 
	
  

 
	
 and

 
	
  

 
	
 U.S. BANK NATIONAL ASSOCIATION, NOT INDIVIDUALLY

 
	
 BUT SOLELY AS TRUSTEE FOR THE MAIDEN LANE COMMERCIAL

 
	
 MORTGAGE-BACKED SECURITIES TRUST 2008-1,

 
	
 as Lender

 






	
  

 	
  

 
	
 Location:   

 	
 Atlantic
 Avenue

 
	
 Borough:

 	
 Brooklyn

 
	
 County:

 	
 Kings

 
	
 Block:

 	
 4145

 
	
 Lots:

 	
 1, 13 and 23

 


MERS MIN: 8000101-0000007166-7





SECOND AMENDMENT TO PROJECT LOAN AGREEMENT
AND 

AMENDMENT OF CERTAIN OTHER LOAN DOCUMENTS


          This
SECOND AMENDMENT TO PROJECT LOAN AGREEMENT AND AMENDMENT OF CERTAIN OTHER LOAN
DOCUMENTS (this “Amendment”), dated as of October 20, 2010 (the “Effective
Date”), by and between U.S. BANK NATIONAL ASSOCIATION, NOT INDIVIDUALLY BUT
SOLELY AS TRUSTEE FOR THE MAIDEN LANE COMMERCIAL MORTGAGE-BACKED SECURITIES
TRUST 2008-1, c/o Bank of America, 900 West Trade Street, S 650,
NCI-026-06-01, Charlotte, North Carolina 28255 (“Lender”) and ACADIA
ATLANTIC AVENUE, LLC, a Delaware limited liability company, having
its principal place of business at c/o Acadia Realty Trust, 1311 Mamaroneck
Avenue-Suite 260, White Plains, New York 10605 (“Borrower”), and acknowledged
and agreed to by ACADIA STRATEGIC OPPORTUNITY FUND II, LLC, a Delaware limited
liability company (“Fund II”), POST MANAGEMENT, LLC, a
Delaware limited liability company (“Post”; Fund II and Post, individually
and/or collectively, as the context may require, the “Guarantor”) and SELF STORAGE
MANAGEMENT LLC, a Delaware limited liability company (“Manager”).


WITNESSETH:


          WHEREAS,
pursuant to the terms and conditions of that certain Project Loan Agreement,
dated as of December 26, 2007, as amended by that certain Amendment to Project
Loan Agreement, dated as of March 12, 2008 (as the same has been or may be
amended, renewed, modified, extended, replaced or supplemented from time to
time, the “Project Loan Agreement”), Bear Stearns Commercial Mortgage,
Inc. (“Bear
Stearns”) made a loan to Borrower in the principal amount of up to
Four Million Nine Hundred Twenty Thousand Seven Hundred Thirty-Nine and 67/100
Dollars ($4,920,739.67) (the “Project Loan”), which Project Loan is
secured, inter alia, by that certain Project Loan Mortgage and Security
Agreement, dated as of December 26, 2007, given by Borrower to Bear Stearns
encumbering that certain lot or piece of land, more particularly described in Exhibit
A annexed hereto and made a part hereof, and the buildings, structures and
improvements now or hereafter located thereon (collectively, the “Property”);


          WHEREAS,
in connection with the Project Loan Agreement and other Loan Documents,
Guarantor delivered to Bear Stearns that certain Guaranty of Recourse Carve
Outs, dated as of December 26, 2007 (the “Guaranty of Recourse Carve Outs”);


          WHEREAS,
Lender has succeeded to the interest, rights, duties and obligations of Bear
Stearns with respect to the Project Loan and is now the holder of the Project
Loan Agreement, the Guaranty of Recourse Carve Outs and the other Loan
Documents (as defined in the Project Loan Agreement);


          WHEREAS,
the parties hereto desire to amend the Project Loan Agreement and certain other
Loan Documents as set forth in this Amendment.


          NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby covenant, agree,
represent and warrant 





as follows:


                              1.
Representations and Warranties. Borrower and Guarantor hereby represent
and warrant to Lender that, as of the Effective Date hereof: 


          (a)
The Project, including the Project Improvements, was completed on or about June
22, 2009;


          (b)
Attached hereto as Schedule I is a true, accurate and complete list of
each contractor, materialman, laborer, workman, engineer, architect or other
Person who could have standing to file a lien against the Property pursuant to
the Lien Law (individually, each, a “Work Provider” and collectively, the “Work
Providers”) in connection with the Project Improvements, the
Completion of the Improvements and any other work performed at the Property
(collectively, the “Work”); 


          (c)
Each Work Provider has completed its respective Work;


          (d)
No Work Provider has performed any Work at the Property during eight (8) months
prior to the Effective Date;


          (e)
All Work at the Property performed prior to the Effective Date has been paid
for and is evidenced by unconditional final lien waivers; 


          (f)
Borrower has previously delivered to Lender unconditional final lien waivers
fully executed by the applicable Work Provider with respect to all Work and all
amounts paid to such Work Provider; 


          (g)
There are no mechanic’s liens currently recorded against the Property that have
not been bonded and Borrower is not aware of any other potential liens which
could be filed against the Property;


          (h)
After giving effect to the provisions of this Amendment and the other documents
entered into by Borrower in connection herewith, no default or Event of Default
shall be continuing under the Loan Documents and there is no existing condition
which, but for the passage of time or the giving of notice, could result in an
Event of Default under the Loan Documents; and


          (i)
The outstanding principal balance of the Project Loan is $1,399,013.26; and


          (j)
The Property is not subject to any existing municipal violations, including,
without limitation, any violations issued by the New York City Department of
Buildings.


                              2.
Agreement with respect to the Final Advance. 


          (a)
Borrower, Guarantor and Lender hereby acknowledge and agree that the conditions
to release the Final Advance, as set forth in Section 2.12 of the Project Loan
Agreement, have not been satisfied by Borrower and that Borrower is no longer
permitted to request and/or receive the Final Advance under the Project Loan,
pursuant to the express 





provisions
thereof, now or at any time hereafter. Borrower and Guarantor hereby rescind,
and acknowledge as void, any pending Draw Request delivered to Lender which has
not been funded in whole or in part on or before the date hereof.


          (b)
Notwithstanding anything to the contrary in the Project Loan Agreement,
Borrower, Lender and Guarantor hereby agree that as of the Effective Date,
Borrower shall not be permitted to request and/or receive any further Advances
under the Project Loan. 


                              3.
Amendment to Project Loan Agreement. 


          (a)
The following defined terms as defined in Section 1.1 of the Project Loan
Agreement are hereby deleted in their entirety and replaced with the following:


	
  

 	
  

 
	
  

 	
 “Interest
 Rate” shall mean seven and three hundred forty-four thousandths
 percent (7.344%).

 
	
  

 	
  

 
	
  

 	
 “Monthly
 Debt Service Payment Amount” shall mean for each Payment Date (a)
 commencing with the Payment Date occurring in February, 2008 through and
 including the Payment Date occurring in October, 2010, the Monthly Interest
 Payment Amount, (b) commencing with the Payment Date occurring in November,
 2010 through and including the Payment Date occurring in April, 2012 (the “Accrual
 Period”), the Accrual Period Monthly Payment Amount, and (c)
 commencing with the Payment Date occurring in May, 2012 and on each Payment
 Date thereafter, the P&I Payment Amount.

 



          (b)
The following defined terms shall be incorporated into Section 1.1 of the
Project Loan Agreement:


	
  

 	
  

 
	
  

 	
 “Accrual
 Period Monthly Payment Amount” shall mean an amount equal to the
 Net Cash Flow Before Debt Service (defined below) for the Interest Period
 second preceding the then applicable Payment Date, provided, that, in the
 event the Net Cash Flow Before Debt Service for such period is less than the
 Monthly Interest Payment Amount (such deficiency, the “Accrual Period Shortfall”),
 then Borrower shall pay such Accrual Period Shortfall as follows:

 






	
  

 	
  

 
	
  

 	
 First, if on any prior Payment Date there were any NOI Errors, then
 the remaining Accrual Period Shortfall (or the applicable portion thereof)
 shall be paid by Borrower (from funds
 other than funds derived from the use, occupancy, operation and
 ownership of the Property) in an amount not to exceed the aggregate amount of
 NOI Errors from such prior Payment Dates;

 Second, in
 the event the Accrual Period Shortfall has not been paid in full as a result
 of the foregoing and if on any prior Payment Date there were any Excess
 Funds, then the Accrual Period Shortfall (or the applicable portion thereof)
 shall be paid by Borrower (from funds
 other than funds derived from the use, occupancy, operation and
 ownership of the Property) in an amount not to exceed the aggregate amount of
 Excess Funds from such prior Payment

 













	
  

 	
  

 
	
  

 	
 Dates;

 
	
  

 	
  

 
	
  

 	
 Third, in the event the Accrual Period Shortfall has not been paid in
 full as a result of the foregoing and provided no Event of Default is then
 continuing, then the remaining Accrual Period Shortfall (or the applicable
 portion thereof) shall be disbursed by Lender from the Interest Reserve
 Account (as defined in the Building Loan Agreement) in an amount not to
 exceed the then remaining amount on deposit in the Interest Reserve Account
 (and Borrower hereby irrevocably directs Lender to apply such Interest
 Reserve Funds to the remaining Accrual Period Shortfall);

 Fourth, in the event the Accrual Period Shortfall has not been paid
 in full, the remaining Accrual Period Shortfall shall accrue and (x)
 immediately commence earning interest at the Interest Rate to the extent
 permitted by law and (y) to the extent remaining unpaid at the Maturity Date,
 be due and payable in full at the Maturity Date (the “Accrued Interest”);

 provided, however, in no event shall the Accrual Period Monthly
 Payment Amount exceed the Monthly Interest Payment Amount for such Interest
 Period.

 






	
  

 	
  

 
	
  

 	
 For the avoidance of doubt and for purposes of illustration and
 example, for the Payment Date occurring in March, 2011, the Accrual Period
 Monthly Payment Amount shall be calculated based upon the Net Cash Flow
 Before Debt Service for the Interest Period from January 1, 2011 through and
 including January 31, 2011.

 As used herein, “Net Cash Flow Before Debt Service” shall
 mean all income derived from the use, occupancy, operation and ownership of
 the Property, from any source whatsoever, less Operating Expenses. 

 “Accrued Interest” shall have the meaning set forth in the
 definition of “Accrual Period Monthly Payment Amount”.

 “Approved Lender” shall mean a bona-fide, third party lender
 which is unaffiliated with any Borrower Party and is otherwise regularly
 engaged in making commercial real estate loans in the State of New York.

 “BLA Modification Agreement” shall mean that certain Second
 Amendment to Building Loan Agreement, dated as of the PLA Modification
 Effective Date, by and among Borrower, Lender, Guarantor and Manager.

 “Borrower
 Party” and “Borrower Parties” shall mean each of
 Borrower, Guarantor, the constituent members of such Person and each of their
 principals, directors, officers, employees, beneficiaries, shareholders,
 partners, members, trustees, agents, or Affiliates or any legal
 representatives, successors or assigns of 

 













	
  

 	
  

 
	
  

 	
 any of the
 foregoing.

 
	
  

 	
  

 
	
  

 	
 “Excess
 Funds” shall mean, with respect to any applicable Payment Date, an
 amount equal to Net Cash Flow Before Debt Service less the applicable
 Monthly Debt Service Payment Amount, as determined by Lender in its sole but
 good faith discretion after Lender’s review of the applicable Monthly Income
 Reports.

 
	
  

 	
  

 
	
  

 	
 “NOI Error”
 shall mean, with respect to any applicable Payment Date, an amount equal to
 difference of (i) the actual Net Cash Flow Before Debt Service for the
 applicable Interest Period as determined by Lender in its sole but good faith
 discretion after Lender’s review of the Monthly Income Report, less
 (ii) the amount of Net Cash Flow Before Debt Service actually delivered by
 Borrower for the payment of the Accrual Period Monthly Payment Amount.

 
	
  

 	
  

 
	
  

 	
 “Loan Hold
 Period” shall mean the period commencing on the PLA Modification
 Effective Date and continuing until forty-five (45) days after the date on
 which Lender sends written notice to Borrower of Lender’s good faith election
 to market the Loan for sale (the “Marketing Notice”); provided, however,
 that the Loan Hold Period shall automatically be extended for one and only
 one additional forty-five (45) day period if Borrower delivers to Lender, at
 any time during the original forty-five (45) day period, a fully executed
 Loan Offer Agreement.

 
	
  

 	
  

 
	
  

 	
 “Loan Offer
 Agreement” shall mean a bona-fide loan commitment or term sheet
 fully executed by an Approved Lender and Borrower, reasonably acceptable to
 Lender, evidencing such Approved Lender’s intent to make a loan to Borrower
 by no later than the last day of the Loan Hold Period and in an amount
 generating sufficient net proceeds to prepay the Debt and the debt evidenced
 by the Project Loan Documents in full in accordance with the terms hereof and
 the other Loan Documents. Notwithstanding the foregoing, no proposed Loan
 Offer Agreement shall constitute a Loan Offer Agreement for purposes hereof
 unless it is accompanied by an Officer’s Certificate of Borrower certifying
 to the matters set forth in the first sentence of this definition and such
 other related matters as may be reasonably requested by Lender. 

 
	
  

 	
  

 
	
  

 	
 “Monthly Interest
 Payment Amount” shall mean an amount equal to interest only on the
 outstanding principal balance of the Project Loan, calculated in accordance
 with Section 2.2 hereof.

 
	
  

 	
  

 
	
  

 	
 “Net Cash
 Flow Before Debt Service” shall have the meaning set forth in the
 definition of “Accrual Period Monthly Payment Amount”.

 
	
  

 	
  

 
	
  

 	
 “P&I
 Payment Amount” shall mean an amount based upon (i) interest
 accrued on the outstanding principal balance of the Project Loan (including
 any Accrued Interest which has been added to the outstanding principal
 balance of the Loan, if any) in accordance with Section 2.2 hereof
 and (ii) a principal payment based on 

 













	
  

 	
  

 
	
  

 	
 the then
 outstanding principal balance of the Project Loan (including any Accrued
 Interest which has been added to the outstanding principal balance of the
 Loan, if any) and a twenty-five (25) year amortization schedule); it being
 specifically understood that the amount required to be paid to Lender above
 shall be calculated by Lender no less than fifteen (15) Business Days prior
 to the Payment Date occurring in May 2012 and such calculation shall be
 conclusive and binding on Borrower absent manifest error.

 
	
  

 	
  

 
	
  

 	
 “PLA Modification Agreement” shall mean that certain Second
 Amendment to Project Loan Agreement and Amendment of Certain Other Loan
 Documents, dated as of the PLA Modification Effective Date, by and among
 Borrower, Lender, Guarantor and Manager.

 “PLA
 Modification Effective Date” shall mean October 20, 2010.

 



          (c)
The second and third sentences of Section 2.3.1 of the Project Loan Agreement
are hereby deleted in their entirety. 


          (d)
The following shall be incorporated into the Project Loan Agreement as Section
2.4.6:


	
  

 	
  

 
	
  

 	
 Section
 2.4.6 Permitted
 Prepayment Prior to Loan Sale. (a) Notwithstanding anything to
 the contrary herein or in any of the other Loan Documents, during the Loan
 Hold Period, provided no Event of Default exists, Borrower may, at its
 option, prepay the Debt in whole (but not in part) upon thirty (30) days
 prior irrevocable notice to Lender, without payment of the Yield Maintenance
 Premium or the requirement to defease the Loan; provided, however, if for any
 reason Borrower prepays the Loan on a date other than a Payment Date,
 Borrower shall pay Lender, in addition to the Debt, all interest which would
 have accrued on the amount of the Loan through and including the Payment Date
 next occurring following the date of such prepayment. For purposes of
 clarification, Borrower right to prepay the Loan pursuant to this Section
 2.4.6 is a one-time right to prepay the Loan in whole (but not in part).

 
	
  

 	
  

 
	
  

 	
 (b) Provided
 that (i) no Event of Default is then continuing, (ii) Borrower has elected to
 prepay the Loan pursuant to the express terms of Section 2.4.6(a) above and
 (iii) provided that the Mortgage continues
 to secure a bona fide obligation of the Borrower, Lender
 agrees to assign the Note and the Mortgage (the “Refinancing Assignment”), all
 without recourse, covenant or warranty of any nature, express or implied
 (other than that Lender is the then holder of the Note and the Mortgage), to
 any party designated by
 Borrower (other than Borrower or a nominee of Borrower) (the “Mortgage
 Assignee”), provided that (A) Borrower
 shall have first caused the same to be purchased for an amount equal to the
 Debt (including, without limitation,
 all unpaid principal and accrued interest due)
 (the “Mortgage
 Purchase
 Price”) as set forth on a loan pay-off letter delivered by Lender
 or its servicer and upon payment by Borrower of (1) the reasonable out-of-pocket expenses of Lender incurred in
 connection with the
 assignments of 

 













	
  

 	
  

 
	
  

 	
 mortgages
 and any related matters together with any nominal processing and
 administrative fees; and (2) Lender’s reasonable attorney’s fees for the
 preparation, delivery and performance of such
 assignment and related documents; (B) Borrower shall have caused the recording with the recorder’s office of Kings
 County of an executed Statement of Oath under Section 275 of the New
 York Real Property Law; and (C) such assignment
 is not then prohibited by any federal, state or local law, rule, regulation,
 order, or by any other governmental
 authority. Borrower shall be
 responsible for all taxes, recording fees and other charges payable in connection with such assignment.

 



          (e)
Section 2.12.3 of the Project Loan Agreement is hereby deleted in its entirety
and replaced with the following:


                    2.12.3
[Intentionally omitted].


          (f)
Sections 8.1(a)(xiii), (xiv), (xv), (xvii) and (xviii) of the Project Loan
Agreement are each hereby deleted in its entirety and each replaced with the
following: [Intentionally omitted]; 


          (g)
Section 8.1(a)(xxi) of the Project Loan Agreement is hereby deleted in its
entirety and each replaced with the following: (xxi) if, during the Accrual
Period, Borrower shall fail to deliver to Lender all Cash Flow Before Debt
Service for the second preceding Interest Period as and when due;


          (h)
Each of Borrower and Guarantor hereby acknowledge and agree that the BLA
Modification Agreement (i) amends and modifies certain provisions of the
Project Loan Agreement which have been incorporated into the Project Loan
Agreement by reference, including, without limitation, the incorporation of
Sections 5.1.47, 5.2.14 and 9.3 and Article 7 of the Building Loan Agreement,
and (ii) such amendments and modifications shall be read into the Project Loan
Agreement as if fully and completely set forth therein;


          (i)
Pursuant to Section 10.6 of the Project Loan Agreement, if a notice is to be
given to Lender, such notice shall be given to: 


	
  

 	
  

 
	
  

 	
 Federal
 Reserve Bank of New York

 
	
  

 	
 33 Liberty
 Street

 
	
  

 	
 New York,
 New York 10045

 
	
  

 	
 Attention:
 Helen Mucciolo 

 
	
  

 	
 Fax: (212)
 720-1530

 
	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 Federal
 Reserve Bank of New York

 
	
  

 	
 33 Liberty
 Street

 
	
  

 	
 New York,
 New York 10045

 
	
  

 	
 Attention:
 Stephanie Heller

 
	
  

 	
 Fax: (212)
 720-1953 

 













	
  

 	
  

 
	
  

 	
 With a copy
 to:

 
	
  

 	
  

 
	
  

 	
 BlackRock
 Financial Management Inc.

 
	
  

 	
 55 East 52nd
 Street

 
	
  

 	
 New York,
 New York 10055

 
	
  

 	
 Attention:
 Frank Pomar

 
	
  

 	
 Fax: (212)
 810-5666

 
	
  

 	
  

 
	
  

 	
 With a copy to:

 
	
  

 	
  

 
	
  

 	
 Alston &
 Bird LLP

 
	
  

 	
 90 Park
 Avenue

 
	
  

 	
 New York,
 New York 10016

 
	
  

 	
 Attention:
 Gerard Keegan, Esq.

 
	
  

 	
 Fax: (212)
 210-9444

 



                              4.
Amendment to Guaranty of Recourse Carve Outs.


          (a)
The following shall be incorporated into the Guaranty of Recourse Carve Outs as
Section 1.2(x):


	
  

 	
  

 
	
  

 	
 (x) if,
 during the Accrual Period, Borrower fails to deliver to Lender all Cash Flow
 Before Debt Service for the second preceding Interest Period as and when due;
 and

 



          (b)
The words “or (vi) if Borrower fails to obtain Lender’s prior written consent
to any Transfer as Required by the Loan Agreement or the Mortgage.” set forth
in Section 1.2(b) of the Guaranty of Recourse Carve Outs are hereby deleted in
their entirety and replaced with the following:


	
  

 	
  

 
	
  

 	
 (vi) if
 Borrower fails to obtain Lender’s prior written consent to any Transfer as
 Required by the Loan Agreement or the Mortgage; (vii) any litigation or other
 legal proceeding related to the Debt filed by a Borrower Party that delays,
 opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or
 frustrates the efforts of Lender to exercise any rights and remedies
 available to Lender as provided herein and in the other Loan Documents;
 (viii) any action by a Borrower Party contesting the end date of the Loan
 Hold Period; (ix) any misrepresentation set forth in (a) the affidavit made
 pursuant to and in compliance with Section 22 of the Lien Law in
 connection with the filing of this Agreement or any amendment or modification
 thereto or (b) Section 1 of the BLA Modification Agreement; or (x) Borrower’s
 failure to comply with the obligations set forth in Section 5.1.47 hereof.

 



                              5.
Guarantor Financial Statements.


          Notwithstanding
anything to the contrary herein or in the other Loan Documents, 





Guarantor
shall furnish to Lender (i) quarterly, within thirty (30) days following the
end of each calendar quarter and (ii) annually, within one hundred and twenty
(120) days following the end of each Fiscal Year, a complete copy of
Guarantor’s financial statements covering the applicable corresponding period
then ended, including a balance sheet and income statement of Guarantor. With
respect to Guarantor’s annual financial statements, such statements shall be
audited in accordance with GAAP by BDO Seidman (so long as they are licensed
certified public accountants) and shall include a complete copy of Guarantor’s
federal and New York state income tax returns for the immediately preceding tax
year within thirty (30) days after timely filing of same given all allowable
extensions of time to file.


                              6.
Ratification. 


          (a)
Borrower hereby ratifies and confirms to Lender that all of the terms,
representations, warranties, covenants, indemnifications and provisions of the
Loan Documents are and shall remain in full force and effect, and are true and
correct with respect to Borrower without change except as otherwise expressly
and specifically modified by this Amendment. Borrower hereby agrees to continue
to be bound by terms, representations, warranties, covenants, indemnifications
and provisions of the Loan Documents.


          (b)
Guarantor hereby ratifies and confirms to Lender that all of the terms,
representations, warranties, covenants, indemnifications and provisions of the
Loan Documents, including without limitation, the Guaranty of Completion (as
defined in the Building Loan Agreement), the Guaranty of Recourse Carve Outs
(as defined in the Building Loan Agreement) and the Environmental Indemnity (as
defined in the Building Loan Agreement), are and shall remain in full force and
effect, and are true and correct with respect to Guarantor without change
except as otherwise expressly and specifically modified by this Amendment.
Guarantor hereby agrees to continue to be bound by the terms, representations,
warranties, covenants, indemnifications and provisions of the Loan Documents,
including, without limitation, the Guaranty of Completion, the Guaranty of
Recourse Carve Outs and the Environmental Indemnity.


                              7.
Release and Waiver of Claims, Defenses and Rights of Set Off. 


          (a)
Each of Borrower and Guarantor acknowledge that Lender has performed all
obligations and duties owed to Borrower and Guarantor under the Loan Documents
through the date hereof.


          (b)
As additional
consideration for entering into this Amendment, each of Borrower and Guarantor
hereby unconditionally and irrevocably forever releases, waives and forever discharges
Lender, BlackRock Financial Management Inc., the Federal Reserve
Bank of New York, Maiden Lane LLC and any Servicer of the Loan (together with
each of their respective predecessors, successors and assigns, each of their
respective Affiliates and each of their respective officers, directors,
employees, agents and representatives) (each, a “Releasee” and, collectively,
the “Releasees”)
from any action, cause of action, suit, debt, defense, right of set off or
other claim arising on or prior to the date hereof, whatsoever, in law or in
equity, arising out of or in connection with this Amendment and/or the other
Loan Documents, known or unknown against the Releasees. 





          (c)
Each of Borrower and Guarantor, on behalf of itself and its successors,
assigns, Affiliates and other legal representatives, hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Releasee that neither Borrower (nor any of its successors, assigns, Affiliates
or other legal representatives) nor Guarantor (nor any of its successors,
assigns, Affiliates or other legal representatives) will sue (at law, in
equity, in any regulatory proceeding or otherwise) any Releasee on the basis of
any claim released, remised and discharged by such Borrower pursuant to Section
8(a) above. If either of Borrower (or any of its successors, assigns,
Affiliates or other legal representatives) or Guarantor (or any of its
successors, assigns, Affiliates or other legal representatives) violates the
foregoing covenant, such party agrees to pay, in addition to such other damages
as any Releasee may sustain as a result of such violation, all reasonable
attorneys’ fees and costs incurred by any Releasee as a result of such
violation. 


          (d)
Lender hereby waives the Events of Defaults specifically alleged in (i) that
certain letter to Borrower, dated as of June 4, 2009, from Lender, (ii) that
certain letter to Borrower, dated as of July 2, 2009, from Stites &
Harbison PLLC, (iii) that certain letter to Borrower and Guarantor, dated as of
December 4, 2009, from Alston & Bird LLP, and (iv) that certain letter to
Otterbourg, Steindler, Houston & Rosen, P.C., dated as of March 25, 2010,
from Alston & Bird LLP. 


                              8.
No Novation.


          The
parties do not intend this Amendment nor the transactions contemplated hereby
to be, and this Amendment and the transactions contemplated herby shall not be
construed to be, a novation of any of the obligations owing by the Borrower
under or in connection with the Loan Documents. Further, the parties do not
intend this Amendment nor the transactions contemplated hereby to affect the
priority of Lender’s first priority lien in any of the collateral securing the
Note in any way, including, without limitation, the liens, security interests
and encumbrances created by the Mortgage and the other Loan Documents


                              9.
Representations, Warranties, and Covenants. 


          (a)
Borrower and Guarantor agree that all of the representations, warranties, and
covenants contained in the Loan Documents (as incorporated into the Project
Loan Agreement by reference) continue to be true and correct as of the date
hereof, and Borrower and Guarantor hereby agree to continue to be bound by the
representations, warranties, and covenants on and after the date hereof.
Borrower and Guarantor agree that any default under this Amendment shall
constitute an Event of Default under the Loan Documents.


          (b)
Lender represents and warrants to Borrower and Guarantor that Lender has
advised the Servicer and any agents acting on behalf of Lender of the terms and
provisions of the Loan Documents as amended by this Amendment.


          (c)
Lender, Borrower and Guarantor hereby represent and warrant that the Completion
of the Improvements occurred on or about June 22, 2009. 


          (d)
Borrower hereby represents and warrants that (i) Borrower has obtained a
Certificate of Eligibility under the Industrial and Commercial Incentive
Program, (ii) Borrower 






has obtained
an extension of the conditional use permit for the Property permitting the
Property to be used as a self-storage facility and (iii) Borrower has removed,
or caused to be removed, all USTs (as defined in the Building Loan Agreement)
and ASTs (as defined in the Building Loan Agreement).


                              10.
[Intentionally omitted]. 


                              11.
Miscellaneous.


          (a)
The Recitals set forth above are true and correct and are hereby incorporated
into the body of this Amendment by reference. 


          (b)
Capitalized terms used herein and not specifically defined herein shall have
the respective meanings ascribed to such terms in the Project Loan Agreement.
The definition of “Agreement” set forth in the Project Loan Agreement shall be
deemed to include this Amendment. Additionally, the definition of “Loan
Agreement” and “Loan Documents” as set forth in the Loan Documents shall be
deemed to include this Amendment and the other documents entered into in connection
with this Amendment.


          (c)
All exhibits and schedules attached hereto are incorporated in this Amendment
and are expressly made a part hereof.


          (d)
This Amendment has been duly executed and delivered by Borrower and Guarantor
and is the legal, valid and binding obligation of Borrower and Guarantor,
enforceable in accordance with its terms, except as enforceability may be
affected by applicable bankruptcy, insolvency, and similar proceedings
affecting the rights of creditors generally, and general principles of equity.


          (e)
This Amendment may be executed in any number of counterparts with the same
effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one and the same
instrument, but in making proof hereof it shall be necessary to produce only
one such counterpart. Any counterpart delivered by facsimile, pdf or other
electronic means shall have the same import and effect as original counterparts
and shall be valid, enforceable and binding for the purposes of this Amendment.
This Amendment shall not be binding, however, until all parties hereto have
signed and delivered a counterpart of this Amendment.


          (f)
The parties hereto agree that, except as specifically set forth herein, this
Amendment (i) does not amend, waive, satisfy, terminate, diminish or otherwise
modify any of the terms, conditions, provisions and/or agreements contained in
the Loan Documents and (ii) does not constitute a waiver, release or limitation
upon Lender’s exercise of any of its rights and remedies under the Loan
Documents, all of which are hereby expressly reserved. This Amendment shall not
relieve or release the Borrower or Guarantor in any way from any of their
respective duties, obligations, covenants or agreements under the Loan
Documents or from the consequences of any Event of Default thereunder. This
Amendment shall not obligate Lender, or be construed to require Lender, to
waive any Event of Default or defaults, whether now existing or which may occur
after the date hereof.





          (g)
This Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and
permitted assigns, except the terms and provisions of Section 2.4.6 of the
Project Loan Agreement shall specifically not be binding on any successor or
assign of U.S. Bank National Association, not individually but solely as
trustee for the Maiden Lane Commercial Mortgage-Backed Securities Trust 2008-1.


          (h)
Except as expressly modified pursuant to this Amendment, all of the terms,
covenants and provisions of the Loan Agreement and the other Loan Documents
shall continue in full force and effect. In the event of any conflict or ambiguity
between the terms, covenants, and provisions of this Amendment and those of the
Loan Agreement or the other Loan Documents, the terms, covenants, and
provisions of this Amendment shall control.


          (i)
This Amendment, and any provisions hereof, may not be modified, amended,
waived, extended, changed, discharged or terminated orally or by any act or
failure to act on the part of any party hereto, but only by an agreement in
writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.


          (j)
This Amendment shall be governed by, and construed in accordance with, the laws
of the State of New York, without regard to principles of conflict of laws and
any applicable law of the United States of America.


          (k)
Borrower shall pay, on demand, all reasonable costs and expenses of Lender
(including reasonable fees, costs and expenses of counsel to Lender) incurred
in connection with the negotiation, preparation, execution and delivery of this
Amendment, and the modification and amendment of the other Loan Documents, the
closing of the restructure of the Loan and the transactions contemplated
thereby.


          (l)
Each party hereto acknowledges that it has participated in the negotiation of
this Amendment, and agrees that no provision of this Amendment shall be
construed against or interpreted to the disadvantage of any party by any court
or other governmental or judicial authority by reason of such party having or
being deemed to have structured, dictated or drafted such provision. Each of
the parties hereto at all times have had access to an attorney in the
negotiation of the terms and in the preparation and execution of this
Amendment, and the parties hereto each have had the opportunity to review and
analyze this Amendment for a sufficient period of time prior to execution and
delivery. All of the terms of this Amendment were negotiated at arm’s length,
and were prepared and executed without fraud, duress, undue influence or
coercion of any kind exerted by either party upon the other. The execution and
delivery of this Amendment is the free and voluntary act of each of the parties
hereto.


 [NO FURTHER TEXT ON THIS PAGE]






          IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their duly authorized representatives, all as of the day and year
first above written. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BORROWER:

 
	
  

 	
  

 	
  

 
	
  

 	
 ACADIA ATLANTIC AVENUE, LLC, a Delaware

 
	
  

 	
 limited
 liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
    /s/ Robert
 Masters

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:
  Robert Masters

 
	
  

 	
 Title:
    Senior Vice President

 






	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 WESTCHESTER

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally
appeared Robert Masters, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Debra Leibler-Jones

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Debra
 Leibler Jones

 
	
  

 	
 State of New
 York-Notary Public

 
	
  

 	
 No.
 01LE6005994

 
	
  

 	
 Qualified in
 Dutchess County

 
	
  

 	
 Comm. Exp.
 04/20/2014

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 LENDER:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 U.S. BANK NATIONAL ASSOCIATION, NOT
 INDIVIDUALLY BUT SOLELY AS TRUSTEE FOR THE MAIDEN LANE COMMERCIAL MORTGAGE
 BACKED SECURITIES TRUST 2008-1

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
 Bank of
 America, N.A., as Master Servicer

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:

 	
    /s/
 Steven M. Vaughn

 
	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:  Steven
 M. Vaughn

 
	
  

 	
  

 	
 Title:    Director

 






	
  

 	
  

 
	
 STATE OF
 NORTH CAROLINA

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 MECKLENBURG

 	
 )

 



On the 19th
day of October, in the year 2010, before me the undersigned, personally
appeared Steven M. Vaughn, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Yolanda Bonet

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Yolanda
 Bonet

 
	
  

 	
 Notary
 Public

 
	
  

 	
 Mecklenburg
 County

 
	
  

 	
 North
 Carolina

 
	
  

 	
 My
 Commission Expires Jun. 3, 2013

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 GUARANTOR:

 
	
  

 	
  

 	
  

 
	
  

 	
 ACADIA STRATEGIC OPPORTUNITY FUND II,

 
	
  

 	
 LLC, a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
    /s/
 Robert Masters

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:  Robert
 Masters

 
	
  

 	
 Title:    Senior
 Vice President

 






	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 WESTCHESTER

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally
appeared Robert Masters, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Debra Leibler-Jones

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Debra
 Leibler Jones

 
	
  

 	
 State of New
 York-Notary Public

 
	
  

 	
 No.
 01LE6005994

 
	
  

 	
 Qualified in
 Dutchess County

 
	
  

 
	
  

 	
 Comm. Exp.
 04/20/2014

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 GUARANTOR:

 
	
  

 	
  

 	
  

 
	
  

 	
 POST MANAGEMENT, LLC, a Delaware limited

 
	
  

 	
 liability
 company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
    /s/ Marc
 Slayton

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:  Marc
 Slayton

 
	
  

 	
 Title:    President/Manager

 






	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF WESTCHESTER

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally
appeared Marc Slayton, personally known to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and
that by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Debra Leibler-Jones

 
	
  

 	

 


 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Debra
 Leibler Jones

 
	
  

 	
 State of New
 York-Notary Public

 
	
  

 	
 No.
 01LE6005994

 
	
  

 	
 Qualified in
 Dutchess County

 
	
  

 	
 Comm. Exp.
 04/20/2014

 


 [SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE]









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 MANAGER:

 
	
  

 	
  

 	
  

 
	
  

 	
 SELF STORAGE MANAGEMENT LLC, a

 
	
  

 	
 Delaware limited
 liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
   /s/
 Bruce Roch

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Name:  Bruce
 Roch

 
	
  

 	
 Title:    Chief
 Executive Officer

 






	
  

 	
  

 
	
 STATE OF
 GEORGIA

 	
 )

 
	
  

 	
 )

 
	
 COUNTY OF
 FULTON

 	
 )

 



On the 18th
day of October, in the year 2010, before me the undersigned, personally appeared
Bruce Roch, personally known to me on the basis of satisfactory evidence to be
the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity, and that
by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument. 


	
  

 	
  

 
	
  

 	
    /s/
 Jada Cowans

 
	
  

 	

 


 
	
  

 
	
  

 	
 Notary
 Public

 
	
  

 	
  

 
	
  

 	
 Jada Cowans

 
	
  

 	
 Notary
 Public, Henry County, Georgia

 
	
  

 	
 My
 Commission Expires May 20, 2013

 









EXHIBIT A


LEGAL DESCRIPTION


ALL
THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE
BOROUGH OF BROOKLYN, COUNTY OF KINGS, CITY AND STATE OF NEW YORK, BOUNDED AND
DESCRIBED AS FOLLOWS, TO WIT:


BEGINNING
AT A POINT FORMED BY THE INTERSECTION OF THE NORTHERLY LINE OF ATLANTIC AVENUE (120 FEET IN
WIDTH), WITH THE EASTERLY LINE OF EUCLID AVENUE (66 FEET IN WIDTH) AND FROM
SAID POINT OF BEGINNING RUNNING THENCE;


1. RUNNING ALONG SAID
EASTERLY LINE OF EUCLID AVENUE, NORTH 11o 00’ 00” WEST, A DISTANCE OF 211 FEET AND 6 INCHES
LOCAL STANDARD, 211 FEET AND 8 1/2 INCHES UNITED STATES STANDARD, THENCE;


2. ALONG A LINE AT RIGHT
ANGLES TO SAID EUCLID AVENUE, NORTH 79o 00’ 00” EAST, A DISTANCE OF 100.00 FEET
LOCAL STANDARD, 100 FEET 1 1/4 INCHES UNITED STATES STANDARD, THENCE;


3. ALONG THE LINE BEING
PARALLEL TO SAID EUCLID AVENUE, NORTH 11o 00’ 00” WEST, A DISTANCE OF 330.00 FEET LOCAL STANDARD, 330 FEET AND 4
INCHES UNITED STATES STANDARD, THENCE;


4. ALONG
A LINE AT RIGHT ANGLES TO SAID EUCLID AVENUE, NORTH 79o 00’ 00” EAST, A
DISTANCE OF 52 FEET AND 11 1/4 INCHES LOCAL STANDARD, 52 FEET AND 11 7/8 INCHES
UNITED STATES STANDARD,
THENCE;


5. ALONG THE EASTERLY LINE
OF SAID LOTS 23, 13 & 1, BLOCK 4145, SOUTH 11o 03’ 56” EAST, A DISTANCE OF 515 FEET AND 1 1/2 INCHES LOCAL STANDARD, 515 FEET AND 6
5/8 INCHES UNITED STATES STANDARD TO THE NORTHERLY LINE OF SAID ATLANTIC AVENUE, THENCE;


6. ALONG SAID NORTHERLY
LINE OF ATLANTIC AVENUE, SOUTH 69o 13’ 14” WEST, A DISTANCE OF 155 FEET AND 9 1/4 INCHES
LOCAL STANDARD, 155 FEET AND 10 3/4 INCHES UNITED STATES STANDARD TO THE POINT AND
PLACE OF BEGINNING.






SCHEDULE I


Work Providers


	
  

 
	
 4 STAR CONTRACTING, INC.

 
	
 A.H. HARRIS & SONS INC.

 
	
 ACCURATE SITE SAFETY

 
	
 AEC REPROGRAPHICS

 
	
 AKERMAN SENTERFITT LP

 
	
 ALL GLASS SYSTEMS INC.

 
	
 ALPINE READY MIX INC.

 
	
 ARCHITECTURAL DOORS

 
	
 AT&T MOBILITY II, LLC

 
	
 ATLANTIC ENGINEERING
 LABORATORIES

 
	
 BANK OF AMERICA

 
	
 BANKS SHAPIRO GETTINGER
 & WALDINGER

 
	
 BESAM ENTRANCE SOLUTIONS

 
	
 BIG APPLE CONCRETE SUPPLY
 INC.

 
	
 BILCO WIRE ROPE & SUPPLY
 CORP

 
	
 BROOKSIDE ENVIRONMENTAL,
 INC.

 
	
 BUTZ-WILBERN

 
	
 C.M. RICHEY ELECTRICAL
 CONTRACTOR

 
	
 CASINO PLUMBING &
 HEATING CO. INC.

 
	
 CELTIC BUILDING SUPPLIES
 INC.

 
	
 CINGULAR WIRELESS II, LLC

 
	
 CITY OF NEW YORK DEPARTMENT

 
	
 CON ED

 
	
 CON EDISON

 
	
 CONSTRUCTION DATA CORPORATION

 
	
 CONTROL POINT ASSOCIATES
 INC.

 
	
 CSC

 
	
 CUSTOM BOOK BINDERY INC.

 
	
 DELAWARE SECRETARY OF STATE

 
	
 DEMAND ELECTRIC INC.

 
	
 DESIGLINE CONSTRUCTION
 SERVICES INC

 
	
 DIAMOND POINT GLASS CO.
 INC.

 
	
 DPK CONSULTING LLC

 
	
 DTS

 
	
 EASTBAY STEEL INC.

 
	
 ELIAS SLAIBY

 
	
 EMG

 
	
 EMMERSON ESTRADA

 
	
 ETRE ASSOCIATES, LTD

 
	
 FASTERNAL COMPANY

 
	
 FEDERAL EXPRESS

 
	
 FIRST AMERICAN TITLE INS CO

 
	
 FJM FERRO, INC.

 
	
 FORTE EXPRESS PLUMBING
 & HEATING

 
	
 FROMM ELETRIC SUPPLY CORP.

 
	
 GMA MECHANICAL CORPORATION

 
	
 GRAINGER

 
	
 GREENBERG FARROW ARCHIT
 CORP

 
	
 GREENBERG TRAGER &
 HERBRST, LLP

 
	
 GUY SACCENTO

 
	
 HOME DEPOT CREDIT SERVICES

 
	
 ICC CONCRETE & MASONRY
 CORP

 
	
 INDEPENDENT EQUIPMENT CORP

 
	
 JANUS INTERNATIONAL
 CORPORATION

 
	
 JD REINFORCING SUPPLY

 
	
 JM WELDING CO. INC.

 
	
 JOHN CHRISTODOULOU

 
	
 JOHN SPERANDO

 
	
 JPR SPECIALTY CONSULTING

 
	
 KETCHUM DIRECTORY
 ADVERTISING

 
	
 KEYSPAN ENERGY DELIVERY

 
	
 LOUIS STRIAR, INC.

 
	
 M.E. SABOSIK ASSOCIATES,
 INC.

 
	
 MAHENDRANATH RAMSAHAI

 
	
 MARJAM SUPPLY CO., INC.

 
	
 METALLINE FIRE DOOR CO.,
 INC.

 
	
 METROPOLITAN VALUATION
 SERVICES

 
	
 MICHAEL ARIGOT

 
	
 MICHAEL S. LUTHER P.E.

 
	
 MODULEX PARTITION CORP

 
	
 MONZACK MERSKY MCLAUGHLIN

 
	
 MORRISON TRANSIT-MIX CORP

 
	
 MRC II CONTRACTING INC.

 
	
 NACIREMA INDUSTRIES, INC.

 
	
 NATIONAL CONSTRUCTION
 RENTALS

 
	
 NEW YORK CITY COMMISSION

 
	
 NEWCO CORPORATE SERVICES
 INC.

 
	
 NY REBAR INC.

 
	
 NYC DEPARTMENT OF BUILDINGS

 
	
 NYC DEPARTMENT OF FINANCE

 
	
 NYC DEPARTMENT OF
 TRANSPORTATION

 
	
 NYC DEPT OF BUILDINGS

 
	
 NYC FIRE DEPARTMENT

 
	
 NYC PARK OF RECREATIONS

 
	
 NYC WATER BOARD

 
	
 OEHLER CONTRACTING CORP.

 
	
 OLDCASTLE APG NORTHEAST,
 INC.

 
	
 OTTERBOURG, STEINDLER,
 HOUSTON OUR RENTAL CORP

 
	
 OUTSOURCE CONSULTANTS

 
	
 PC RICHARD & SON
 BUILDERS DIVISION

 
	
 PERIMETER BRIDGE &
 SCAFFOLD CO., INC

 
	
 PETTY CASH

 
	
 PHOENIX CONSTRUCTION LLC

 
	
 POLAND SPRINGS

 
	
 POST MANAGEMENT II, LLC

 
	
 POST MANAGEMENT, LLC

 
	
 PRO ENERGY SERVICES

 
	
 QUEENSBORO FENCE CO. INC.

 
	
 RADIANT CLEANING SERVICES,
 INC.

 



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 RARITAN BAY CONTRACTING
 INC.

 
	
 RED WING ELECTRIC LLC

 
	
 RIKER DANZIG SCHERER HYLAND

 
	
 ROBERT DONOHUE

 
	
 ROCK TECH INC.

 
	
 ROMA ARCHITECTURAL
 WOODWORKING, INC

 
	
 RON WRENSEN

 
	
 SANDAK HENNESSEY &
 GRECO LLP

 
	
 SH5 CONSTRUCTION CORP.

 
	
 SHANKER LAW GROUP

 
	
 SIGN A RAMA USA

 
	
 SIGN-A-RAMA

 
	
 SIGNS BY TOMORROW

 
	
 SIMKISS AGENCY

 
	
 SPEEDY CONCRETE PUMPING
 & REPAIR IN SPRAY- RITE LLC

 
	
 SPRINT

 
	
 SS20 BUILDING SYSTEMS, INC

 
	
 STADTMAUER BAILKIN LLP

 
	
 STAPLES CREDIT PLAN

 
	
 STILLWELL MATERIALS CORP.

 
	
 STOLTE PAINTING, LLC

 
	
 TASZ CONSTRUCTION, INC.

 
	
 THYSSENKRUPP ELEVATOR
 CORPORATION

 
	
 TIMOTHY CLARK

 
	
 ULTIMATE ACCESS SOLUTIONS

 
	
 UNBUILD IT SERVICES, LTD

 
	
 UNITED STEEL PRODUCTS
 VERIZON, INC.

 
	
 VITAL SIGN SOURCE LTD

 
	
 W. B. MASON CO., INC.

 
	
 WACHTEL & MASYR LLP

 
	
 WHITESTONE ASSOCIATES INC.

 
	
 WILLIAM
 VITACCO ASSOCIATES, LTD

 



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