Construction Loan Agreement dated as of 4/20/03



 



Exhibit 10.17




CONSTRUCTION LOAN AGREEMENT




between




WEO – CONCAR, LLC,

a California limited liability company,

as Borrower




and




RIVERSIDE FINANCE COMPANY, L.L.C.,

a Delaware limited liability company,

as Lender




Executed as of November 21, 2002




 







 


CONSTRUCTION LOAN AGREEMENT






     THIS CONSTRUCTION LOAN AGREEMENT (“Agreement”) is executed as of November
21, 2002, by and between WEO – CONCAR, LLC, a California limited liability
company (“Borrower”), and RIVERSIDE FINANCE COMPANY, L.L.C., a Delaware limited
liability company (“Lender”).





RECITALS






     A.     Borrower owns or will own certain real property described in Exhibit A
hereto (“Property”).





     B.     Borrower proposes to construct new improvements or renovate existing
improvements on the Property consisting of: Two (2) five-story office
buildings, one single-story retail building and a two-level parking structure,
together with all appurtenances, fixtures, and tenant improvements now or
hereafter located on the Property (“Improvements”). The office buildings will
be constructed with steel supporting beams and columns, concrete slab on grade,
steel and concrete composite suspended deck floors and roof. The exterior
material will consist of brick panels. The Improvements shall be constructed
in accordance with plans and specifications which Borrower has heretofore, or
will hereafter deliver to Lender, as amended in order to comply with the terms
and conditions of this Agreement (“Plans and Specifications”). Borrower has
requested from Lender a loan for the purpose of such construction.





     NOW, THEREFORE, Borrower and Lender agree as follows:





ARTICLE 1. DEFINITIONS






     1.1. Defined Terms. The following capitalized terms generally used in
this Agreement shall have the meanings defined or referenced below. Certain
other capitalized terms used only in specific sections of this Agreement are
defined in such sections.





     “Account” — means an account with Bank, account number 14223-01959, in the
name of Borrower or Borrower’s designee into which Loan proceeds will be
deposited.





     “ADA” — means the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et
seq. as now or hereafter amended or modified.





     “Affiliate” – means, as to any person or entity, any person or entity
which, directly or indirectly, controls, is controlled by or is under common
control with, or which has the power to control the management or operations
of, such person or entity.





     “Architect” — means M. Arthur Gensler & Associates.





 







 


     “Architect’s
Agreement” — means that certain agreement dated December 20,
2001 by and between Borrower and Architect.





     “Bank” — means Bank of America.





     “Bankruptcy Code” — means the Bankruptcy Reform Act of 1978 (11 U.S.C. §
101-1330) as now or hereafter amended or recodified.





     “Bonded Work” — shall have the meaning ascribed to such term in Section
8.1.





     “Border Zone Property” — means any property designated as “border zone
property” under the provisions of California Health and Safety Code, Sections
25220 et seq., or any regulation adopted in accordance therewith.





     “Borrower” — means WEO – Concar, LLC, a California limited liability
company.





     “Borrower’s Funds” — means all funds of Borrower deposited with Lender
into the Borrower’s Funds Account maintained with Bank pursuant to the terms
and conditions of this Agreement.





     “Borrower’s Funds Account” — means the account with Bank into which all
funds deposited with Lender pursuant to this Agreement shall be placed.





     “Business Day” — means a day of the week (but not a Saturday, Sunday or
holiday) on which the offices of Bank are open to the public for carrying on
substantially all of Bank’s business functions. Unless specifically referenced
in this Agreement as a Business Day, all references to “days” shall be to
calendar days.





     “Certificate of Approval” – means a certificate in the form of Exhibit F.





     “Completion Date” — means the date upon which Borrower satisfies the last
of the conditions for the release of the Retention, as provided in Paragraph C
of Exhibit D, currently estimated to be October 25, 2002, the date by which
construction of the Improvements must be complete, subject to extension
pursuant to change orders approved by Lender as provided herein or pursuant to
the provisions of Section 4.3.





     “Construction Agreement” — means that certain agreement to construct the
Improvements dated December 14, 2001 by and between Borrower and Contractor.





     “Contractor” — means Webcor Construction, Inc.





     “Deed of Trust” — means that certain Construction Deed of Trust with
Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing
of even date herewith executed by Borrower, as Trustor, to First American Title
Company, as Trustee,





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for the benefit of Lender, as
Beneficiary, as hereafter amended,
supplemented, replaced or modified.





     “Deemed Approval Matter” – means any matter requiring the consent of
Lender under the Loan Documents including, without limitation, the following:
(1) contracts for which Lender approval is required hereunder, as contemplated
in Sections 4.4 and 4.5, (2) Plans and Specifications and changes thereto for
which Lender approval is required hereunder, as contemplated in Section 4.6,
(3) Borrower’s contracting for any materials, furnishings, equipment, fixtures
or other parts or components of the Improvements in which any third party will
retain any interest for which Lender approval is required hereunder, as
contemplated in Section 4.8, (4) the inclusion of the Property in any
assessment district or community facilities district for which Lender approval
is required hereunder, as contemplated in Section 4.11, (5) formation and
authorization documents of Borrower, and modifications thereto, for which
Lender approval is required hereunder, as contemplated in Sections 6.3 and
9.10, (6) the issuance of any Set Aside Letter for which Lender approval is
required hereunder, as contemplated in Section 8.1; (7) leases and leasing
parameters for which Lender approval is required hereunder, as contemplated in
Section 9.4, (8) any Subdivision Map for which Lender approval is required
hereunder, as contemplated in Section 9.6, (9) assignment of all or any portion
of Borrower’s interest under the Loan documents or any moneys due or to become
due thereunder for which Lender approval is required hereunder, as contemplated
in Section 9.8, and (10) agreements providing for the management, leasing or
operation of the Property or Improvements for which Lender approval is required
hereunder, as contemplated in Section 9.9; provided, however, the Lender’s
right to approve, as provided in this Agreement, (i) the Title Policy and (ii)
any transfer of the Property, any interest in Borrower, or any interest in WEO
other than a Permitted Transfer, shall not constitute Deemed Approval Matters.





     “Default” — shall have the meaning ascribed to such term in Section 11.1.





     “Development and Management Agreements” – means that development
management agreement by and between Borrower, as owner, and WEO, as manager,
dated June 20, 2000, or any other substitute or additional contract for
development management, property management and/or brokerage services for the
Property, and any amendment thereof, in each case, that has been approved by
Lender.





     “Disbursement Budget” – means the design and construction budget for the
Improvements, as approved by Lender from time to time.





     “Distribution” — means any transfer of cash or other property from
Borrower to any constituent member or statutory manager thereof, whether
characterized as a distribution, dividend, redemption, fee, repayment of a loan
or otherwise, but excluding the payment of any fees, commissions or expenses
pursuant to the Development and Management Agreements prior to the date that
Lender requires Borrower to terminate the




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Development and Management Agreements under the provisions of Section 11.6 and
following the date of any reinstatement of any terminated Development and
Management Agreements under the provisions of Section 11.6.





     “Effective Date” — means the date the Deed of Trust is recorded in the
Office of the County Recorder of the county where the Property is located.





     “Environmental Report” – means the reports actually received by Lender as
contemplated in Section 3.1(d) of this Agreement.





     “EOP Project Investor” – means EOP – Concar Investor, L.L.C., a Delaware
limited liability company.





     “Ground Lessor Estoppel and Agreement” means that Ground Lessor Estoppel
Statement and Three Party Agreement, in the form delivered to Borrower by
Lender, as such form may be modified in negotiations among the parties thereto,
as ultimately executed by and among Lender, Borrower and Ground Lessor (as
defined in the Deed of Trust).





     “Hazardous Materials” — shall have the meaning ascribed to such term in
Section 7.1(a).





     “Hazardous Materials Claims” — shall have the meaning ascribed to such
term in Section 7.1(c).





     “Hazardous Materials Laws” — shall have the meaning ascribed to such term
in Section 7.1(b).





     “Improvements” — shall have the meaning ascribed to such term in Recital
B.





     “Lender” — means Riverside Finance Company, L.L.C., a Delaware limited
liability company.





     “Lender Payment Turnaround Period” – means, provided that Borrower
delivers the applicable application for payment to Lender under cover of a
written notice stating in bold, all-capitalized letters what the outside date
for such Lender Payment Turnaround Period is for that specific application for
payment, ten (10) calendar days.





     “Loan” — means the principal sum that Lender agrees to lend and Borrower
agrees to borrow pursuant to the terms and conditions of this Agreement: FORTY
TWO MILLION TWO HUNDRED THIRTY-FIVE THOUSAND FOUR HUNDRED SEVENTY-SIX AND
00/100THS DOLLARS ($42,235,476.00).





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     “Loan Documents” — means those documents, as hereafter amended,
supplemented, replaced or modified, properly executed and in recordable form,
if necessary, listed in Exhibit B as Loan Documents.





     “Maturity Date” – means the earliest to occur of (i) October 24, 2004,
(ii) the date that is one hundred eighty days (180) days after the date that
either of the “B Unit” or the “C Unit” (with each of such quoted terms defined
as provided in the Operating Agreement of Borrower) is transferred to the EOP
Project Investor or any person or entity controlling, controlled by or under
common control with the EOP Project Investor; and (iii) the date on which all
interests of WEO in the Borrower are sold or otherwise transferred to any
person or entity that does not control, is not controlled by or is not under
common control with either the EOP Project Investor or WEO.





     “Note” — means that certain Promissory Note Secured by Deed of Trust of
even date herewith, in the original principal amount of the Loan, executed by
Borrower and payable to the order of Lender, as hereafter amended,
supplemented, replaced or modified.





     “Obligee” — shall have the meaning ascribed to such term in Section 8.1.





     “Operating Agreement of Borrower” – means the limited liability company
agreement of the Borrower dated as of February 26, 2001, in the form delivered
to Lender, as hereafter amended, supplemented, replaced or modified as
permitted in this Agreement.





     “Operating Agreement of WEO” – means that certain Amended and Restated
Operating Agreement No. 1 of Wilson/Equity Office, LLC dated as of August 1,
2000, in the form delivered to Lender, as hereafter amended, supplemented,
replaced or modified as permitted in this Agreement.





     “Other Borrower Loan Documents” – means those documents, as hereafter
amended, supplemented, replaced or modified from time to time, properly
executed and in recordable form, if necessary, listed in Exhibit B as “Other
Borrower Loan
Documents.”





     “Other Related Documents” — means those documents, as hereafter amended,
supplemented, replaced or modified from time to time, properly executed and in
recordable form, if necessary, listed in Exhibit B as Other Related Documents.





     “Out of Balance Notice” — shall have the meaning ascribed to such term
in Section 3.1(b).





     “Permitted Transfers” – means transfers of interests in the Borrower that
are permitted under the Operating Agreement of the Borrower and transfers of
interests in Wilson/Equity Office, LLC, that are permitted under the Operating
Agreement of WEO.





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     “Plans and Specifications” — shall have the meaning ascribed to such term
in Recital B.





     “Principal Subs” — shall have the meaning ascribed to such term in
Section 4.7.





     “Project Entitlements” – means (i) that certain Certification of Final EIR
and approval of Planning Application PA99-077, dated May 24, 2001; (ii) that
certain Conditions of Approval incorporated in PA99-077, dated May 24, 2001.





     “Property” — shall have the meaning ascribed to such term in Recital A.





     “Required Equity Contribution” – means THIRTEEN MILLION ONE
HUNDRED FIFTY-FIVE THOUSAND THREE HUNDRED TWELVE AND 00/100ths DOLLARS
($13,155,312.00).





     “Secured Obligations” — shall have the meaning ascribed to such term in
the Deed of Trust.





     “Set Aside Letter” — shall have the meaning ascribed to such term in
Section 8.1.





     “Subdivision Map” — shall have the meaning ascribed to such term in
Section 9.6.





     “Sublessor Estoppel and Agreement” means that Sublessor Estoppel
Statement and Three Party Agreement, in the form delivered to Borrower by
Lender, to be executed by and among Lender, Borrower and Sublessor (as defined
in the Deed of Trust).





     “Surety” — shall have the meaning ascribed to such term in Section 8.1.





     “Title Policy” — means the LP-10 ALTA Lender’s Policy of Title Insurance
as issued by First American Title Company, together with such special
endorsements as Lender may require thereto, including, without limitation,
forms CLTA 100 (making particular reference to any easement or encroachment
listed in the Title Policy), 116, 116.1, 116.4 (if there are any contiguity
issues, in Lender’s opinion), 116.7, 103.7 (modified to insure access to a
physically open public street sufficient to provide vehicular and pedestrian
ingress and egress), variable interest rate, separate tax parcel, and such
other special endorsements as Lender may require.





     “WEO” – means Wilson/Equity Office, LLC, a Delaware limited liability
company.





     “Working Capital” – means all proceeds of the Loan disbursed by Lender
into the Working Capital Reserve Account maintained with Bank pursuant to the
terms and conditions of this Agreement.





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     “Working Capital Reserve Account” – means the account with Bank into
which all funds disbursed as Working Capital by Lender pursuant to this
Agreement shall be placed.





     1.2. Exhibits Incorporated. Exhibits A, B, C, D, E, F and G, all attached
hereto, are hereby incorporated into this Agreement.





ARTICLE 2. LOAN



     2.1. Loan. By and subject to the terms of this Agreement, Lender agrees
to lend to Borrower and Borrower agrees to borrow from Lender the principal sum
of FORTY TWO MILLION TWO HUNDRED THIRTY-FIVE THOUSAND FOUR HUNDRED SEVENTY-SIX
AND 00/100THS DOLLARS ($42,235,476.00) said sum to be evidenced by the Note of
even date herewith. The Note shall be secured, in part, by the Deed of Trust,
of even date herewith, encumbering certain real property and improvements as
legally defined therein. Amounts disbursed to or on behalf of Borrower
pursuant to the Note shall be used to finance the acquisition and construction
of the Property and Improvements and for such other purposes and uses as may be
permitted under this Agreement and the other Loan Documents.





     2.2. Loan Documents. Borrower shall deliver to Lender concurrently with
this Agreement each of the documents, properly executed and in recordable form,
as applicable, described in Exhibit B as Loan Documents, together with those
documents described in Exhibit B as Other Related Documents. Notwithstanding
anything to the contrary contained elsewhere within this Agreement, the lien of
the Deed of Trust shall not secure any obligation under any of the Loan
Documents that are designated on Exhibit B as not being secured by liens upon
real property.





     2.3. Effective Date. The date of the Loan Documents is for reference
purposes only. The Effective Date of delivery and transfer to Lender of the
security under the Loan Documents and of Borrower’s and Lender’s obligations
under the Loan Documents shall be the date the Deed of Trust is recorded in the
Office of the County Recorder of the county where the Property is located.





     2.4. Maturity Date; Prepayment. Upon the Maturity Date, all sums due and
owing under this Agreement and the other Loan Documents shall be repaid in
full. All payments due to Lender under this Agreement, whether at the Maturity
Date or otherwise, shall be paid in immediately available funds. Amounts owing
under the Note may be prepaid by Borrower, upon not less than thirty (30) days
prior written notice to Lender, in whole or in part, at any time, without
premium or penalty.





     2.5. Credit for Principal Payments. Any payment made upon the outstanding
principal balance of the Loan shall be credited as of the Business Day
received, provided such payment is received by Lender no later than 11:00 a.m.
Pacific Time) and




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constitutes immediately available funds. Any principal
payment received after said time or which does not constitute immediately
available funds shall be credited upon such funds having become unconditionally
and immediately available to Lender.





     2.6. Full Repayment and Reconveyance. Upon receipt of all sums owing and
outstanding under the Loan Documents, Lender shall issue a full reconveyance of
the Property and Improvements from the lien of the Deed of Trust and otherwise
release Lender’s security interest in all other personal property collateral
that secure the Loan; provided, however, that all of the following conditions
shall be satisfied at the time of, and with respect to, such reconveyance: (a)
Lender shall have received all escrow, closing and recording costs, the costs
of preparing and delivering such reconveyance and any sums then due and payable
under the Loan Documents, and (b) Lender shall have received a written release
satisfactory to Lender of any set aside letter, letter of credit or other form
of undertaking which Lender has issued to any surety, governmental agency or
any other party in connection with the Loan and/or the Property and
Improvements. Lender’s obligation to make further disbursements under the Loan
shall terminate as to any portion of the Loan undisbursed as of the date of
issuance of such full release or reconveyance, and any commitment of Lender to
lend any undisbursed portion of the Loan shall be canceled.





     2.7. Certificates of Approval. With respect to any Deemed Approval
Matter, such matter shall be deemed approved by Lender if Borrower delivers to
Lender, with Borrower’s next request for a disbursement pursuant to Article
III, below, a properly completed and factually accurate Certificate of
Approval, and Lender does not dispute such Certificate of Approval by written
notice to Borrower delivered within five (5) Business Days following Lender’s
receipt thereof. Such Lender approval shall be effective as of the date such
approval was required, unless Lender timely delivers such written notice
disputing such Certificate of Approval.





ARTICLE 3. DISBURSEMENT






     3.1. Conditions Precedent. Lender’s obligation to make any disbursements
or take any other action under the Loan Documents shall be subject at all times
to satisfaction of each of the following conditions precedent:





          (a) There shall exist no Default, as defined in this Agreement, Default as
defined in any of the other Loan Documents, event, omission or failure of
condition which would constitute a Default after notice or lapse of time, or
both, or default by Borrower (following any applicable notice and cure period)
under any of the Other Related Documents, except to the extent that such event,
omission or failure (i) is of a nature that it could ripen into a monetary
Default, and that event, omission or failure will be cured by the requested
disbursement or with funds that Borrower is then attempting to raise during the
60-day cure period set forth in the provisions of the final paragraph of
Section 11.1, or (ii) is of a nature that it could ripen into a non-monetary
Default, such




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event, omission or failure is curable, and Borrower is then
diligently prosecuting such cure to completion within the applicable cure
period; and





          (b) Any undisbursed Loan funds together with all sums, if any, to be
provided by Borrower as shown in Exhibit C shall be at all times equal to or
greater than the amount which Lender from time to time reasonably determines
necessary to: (i) pay, through completion, all costs of renovation,
development, construction, operation, marketing and sale or leasing of the
Property and Improvements in accordance with the Loan Documents; (ii) pay all
sums which may accrue under the Loan Documents prior to repayment of the Loan;
and (iii) enable Borrower to perform and satisfy all of the covenants of
Borrower contained in the Loan Documents. If Lender reasonably determines at
any time that the undisbursed Loan funds are insufficient for said purposes,
Lender may deliver to Borrower written notice demanding that Borrower then
deposit funds equal to such deficiency in the Borrower’s Funds Account (an “Out
of Balance Notice”), in which event Borrower shall deposit the amount of such
deficiency in the Borrower’s Funds Account within thirty (30) days after the
date of delivery of the applicable Out of Balance Notice; and





          (c) Lender shall have received all Loan Documents, other documents,
instruments, policies, and forms of evidence or other materials requested by
Lender under the terms of this Agreement or any of the other Loan Documents,
including, without limitation, each of the Ground Lessor Estoppel and Agreement
and the Sublessor Estoppel and Agreement duly executed by the parties thereto
other than Lender, each together with the specified memorandum thereof duly
executed by and acknowledged on behalf of each of the parties thereto other
than Lender, in form sufficient for recording in the Official Records of San
Mateo County, California, such forms of estoppel certificates and
subordination, non-disturbance and attornment agreements as Lender may then
require from existing tenants of the Property; and





          (d) Lender acknowledges that it has received and approved in form and
substance satisfactory to Lender: (i) a soils report for the Property and
Improvements; (ii) an environmental questionnaire and environmental site
assessment with respect to the presence, if any, of Hazardous Materials on the
Property and Improvements; (iii) two sets of the Plans and Specifications,
certified as complete by the Architect (or if the Plans and Specifications for
the entirety of the Improvements are not then complete or some portion of the
Improvements are to be constructed using a design/build process, in either such
case pursuant to partial Plans and Specifications approved by Lender under the
provisions of Section 4.6 of this Agreement and for which a valid building
permit has been issued, then such portion of the Plans and Specifications to
the extent that payment for such portion of the Improvements is to be covered
by a current disbursement request), together with evidence of all necessary or
appropriate approvals of governmental agencies; (iv) copies of all agreements
which are material to completion of the Improvements; (v) copies of all
building permits and similar permits, licenses, approvals, development




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agreements and other authorizations of governmental agencies required in
connection with the development of the Property and Improvements, or, if such
approvals are to be issued on a staged basis, then for the current and all
prior stages of development, provided that such staged development has been
approved by Lender, as contemplated in Section 4.6; and (vi) copies of any
initial study, negative declaration, mitigated negative declaration,
environmental impact report, notice of determination or notice of exemption
prepared, adopted, certified or filed by any governmental agency in connection
with the Property; and





          (e) Lender shall have received and approved evidence reasonably acceptable
to Lender that Borrower has invested the Required Equity Contribution into the
acquisition and development of the Property and Improvements, either as shown
on Exhibit C or otherwise.





     3.2. Account, Pledge and Assignment, and Disbursement Authorization. The
proceeds of the Loan and Borrower’s Funds, when qualified for disbursement,
shall be deposited into the Account or otherwise disbursed to or for the
benefit or account of Borrower under the terms of this Agreement.
Disbursements hereunder may be made by Lender upon the written request of any
person who has been authorized by Borrower to request such disbursements until
such time as written notice of Borrower’s revocation of such authority is
received by Lender at the address shown in Exhibit D. As additional security
for Borrower’s performance under the Loan Documents, Borrower hereby
irrevocably pledges and assigns to Lender the Account and all monies at any
time deposited in the Account.





     3.3. Borrower’s Funds Account, Pledge and Assignment . Except as
otherwise provided in this Agreement, all of the Borrower’s Funds which are
deposited with Lender by Borrower as shown in Exhibit C, or any other provision
of the Loan Documents, shall be placed in the Borrower’s Funds Account for
disbursement under this Agreement. As additional security for Borrower’s
performance under the Loan Documents, Borrower hereby irrevocably pledges and
assigns to Lender the Borrower’s Funds Account and all monies at any time
deposited in the Borrower’s Funds Account.





     3.4. Loan Disbursements. Subject to the conditions set forth in Section
3.1(b), the proceeds of the Loan and Borrower’s Funds shall be disbursed in
accordance with the terms and conditions of Exhibit D. Disbursements made
after the deposit of Borrower’s Funds shall be made first from the Borrower’s
Funds Account until depleted. All disbursements shall be held by Borrower in
trust and applied by Borrower solely for the purposes for which the funds have
been disbursed. Lender has no obligation to monitor or determine Borrower’s
use or application of the disbursements. Partial disbursements shall be
permitted under the terms and subject to the conditions set forth in Exhibit D.





     3.5. Working Capital. From time to time, in Borrower’s Applications for
Payment, Borrower may request the disbursement of proceeds of the Loan and




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Borrower’s Funds into the Working Capital Reserve Account to maintain the
balance of the Working Capital Reserve Account at the amount specified in the
Disbursement Budget, provided that amounts in the Working Capital Reserve
Account may only be used to pay reasonable costs of the design or construction
of the Improvements, and that Borrower shall have delivered the monthly reports
with respect to the Working Capital Reserve Account that are required under the
provisions of Section 10.1 of this Agreement for all prior months. As
additional security for Borrower’s performance under the Loan Documents,
Borrower hereby irrevocably pledges and assigns to Lender the Working Capital
Reserve Account and all monies at any time deposited in the Working Capital
Reserve Account.





     3.6. Pre-Closing Loan Disbursements. Attached to this Agreement as
Exhibit G is a schedule of advances that were made by Lender to Borrower prior
to the date of the closing of the Loan. Notwithstanding the fact that such
advances occurred prior to the date of the closing of the Loan, Lender and
Borrower hereby agree that each of such advances shall be treated as if it were
a disbursement of proceeds of the Loan under and subject to the provisions of
the Loan Documents, in each case, as of the date of each such advance.





ARTICLE 4. CONSTRUCTION






     4.1. Commencement and Completion. Borrower shall commence construction of
the Improvements without delay after recordation of the Deed of Trust and shall
complete construction of the Improvements on or before the Completion Date.





     4.2. Commencement and Completion of Offsite Improvements. Borrower shall
commence construction of any offsite improvements required by any governmental
authority to be performed by Borrower under any Project Entitlements in
connection with the construction of the Improvements without delay after
recordation of the Deed of Trust and shall complete construction of any such
offsite improvements on or before the date required under the applicable
Project Entitlements.





     4.3. Force Majeure. The time within which construction of the
Improvements must be completed shall be extended for a period of time equal to
the period of any delay directly affecting construction which is caused by
fire, earthquake or other acts of God, unexpected inclement weather, utility
shortages or interruptions, strike, lockout, acts of public enemy, riot,
insurrection, or governmental regulation of the sale or transportation of
materials, supplies or labor, the failure of any governmental authority to
issue any Project Entitlement for reasons beyond Borrower’s reasonable control,
the failure of any condition of approval on any Project Entitlement for any
reason beyond Borrower’s reasonable control, or any moratorium enacted by any
governmental authority over Borrower’s good faith opposition that prohibits,
impairs, delays or restricts development of the Improvements; provided,
however, that Borrower shall furnish Lender with written notice satisfactory to
Lender evidencing any such delay within ten (10) days after the




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occurrence of
any such delay. In no event shall the time the anticipated date for completion
of the Improvements be extended beyond the Maturity Date or more than one
hundred twenty (120) days beyond the Completion Date as scheduled prior to
such delay.





     4.4. Construction Agreement. Borrower and Contractor have entered into
the Construction Agreement pursuant to the terms and conditions of which
Contractor is to construct the Improvements. Borrower shall require Contractor
to perform in accordance with the terms of the Construction Agreement and shall
not amend, modify or alter the Construction Agreement without Lender’s prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed. Borrower shall execute, upon Lender’s request, an assignment of
Borrower’s rights under the Construction Agreement to Lender as security for
Borrower’s obligations under this Agreement and the other Loan Documents and
shall cause the Contractor to consent to any such assignment.





     4.5. Architect’s Agreement. Borrower and Architect have entered into the
Architect’s Agreement, pursuant to which Architect is to design the
Improvements. Borrower shall require Architect to perform in accordance with
the terms of the Architect’s Agreement and shall not amend, modify or alter the
Architect’s Agreement without Lender’s prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed. Upon Lender’s
request, Borrower shall execute an assignment of the Architect’s Agreement and
the Plans and Specifications to Lender as additional security for Borrower’s
performance under this Agreement and the other Loan Documents and shall cause
the Architect to consent to any such assignment.





     4.6. Plans and Specifications.





          (a) Changes; Lender Consent. If the Plans and Specifications contemplate
staged design and construction, and if Lender has approved Plans and
Specifications that contemplate that certain stages will be designed in the
future, then any stages of such Plans and Specifications that have not been
approved by Lender as of the date of this Agreement shall be subject to
Lender’s prior written approval, which consent shall not be unreasonably
withheld, conditioned or delayed. Except as otherwise provided in this
Agreement, Borrower shall not make any changes in the Plans and Specifications
or the Improvements without Lender’s prior written consent if such change,
taken together with all other changes for which Lender’s approval was not
required hereunder, could materially affect the overall quality or efficiency
of the Improvements or the Improvements’ exterior, lobbies or building systems.
Without limiting the above, Lender agrees that Borrower may make minor changes
in the Plans and Specifications and Improvements without Lender’s prior written
consent, provided that such changes do not violate any of the conditions
specified herein. Notwithstanding the foregoing, Lender shall not have any
approval rights respecting any change in the Plans and Specifications or the
Improvements
if such change follows inevitably from previously approved Plans
and Specifications or changes thereto. Borrower shall at all times maintain,
for inspection by Lender, a set of working drawings of the Improvements,




Page 12







 



which, if there is staged design that has not yet occurred, if applicable,
shall at least cover the portions of the Improvements completed and under
construction or fully designed at such time.





          (b) Changes; Submission Requirements. Borrower shall submit any proposed
change in the Plans and Specifications requiring Lender’s consent to Lender
prior to the commencement of construction relating to such proposed change, at
least ten (10) Business Days prior to the commencement of construction.
Requests for any change which requires consent shall be accompanied by working
drawings (or appropriate submittals) and a written description of the proposed
change, submitted on a change order form acceptable to Lender, signed by
Borrower and, if required by Lender, also by the Architect and the Contractor.
At its option, Lender may require Borrower to provide: (i) evidence
satisfactory to Lender of the cost and time necessary to complete the proposed
change; and (ii) a deposit in the amount of any increased costs into Borrower’s
Funds Account.





          (c) Consent Process. Borrower acknowledges that Lender’s review of any
changes and required consent may result in delays in construction and hereby
consents to any such delays. Nevertheless, Lender shall use commercially
reasonable efforts to respond to requests for approval within the time periods
provided in this Agreement.





          (d) Final Plans and Specifications. Upon completion of the
Improvements, Borrower shall deliver to Lender within sixty (60) days a set of
final, as-built Plans and Specifications.





     4.7. Contractor/Construction Information. Borrower shall deliver to
Lender in a form acceptable to Lender: (a) a list detailing the name, address
and phone number of each contractor, subcontractor and material supplier to be
employed or used for construction of the Improvements who is under contract or
otherwise has been selected to supply goods or services or perform work for the
Project costing in excess of $5,000 in the aggregate and any other person or
entity who delivers a Preliminary Notice to Owner or Lender under Civil Code
Sections 3097 or 3098 (collectively, “Principal Subs”) together with the dollar
amount, including changes, if any, reflected in each contract and subcontract
for the Principal Subs, and the portion thereof, if any, paid through the date
of such list of Principle Subs; (b) copies of each contract and subcontract
identified in such list of Principal Subs, including any changes thereto; (c) a
cost breakdown of the projected total cost of constructing the Improvements,
and that portion, if any, of each cost item which has been incurred; and (d) a
construction progress schedule detailing the progress of construction and the
projected sequencing and completion time for uncompleted work, all as of the
date of such schedule.





     Borrower agrees that Lender’s approval of any contractor, subcontractor or
material supplier if and to the extent permitted under the terms of this
Agreement shall not




Page 13







 



constitute a warranty or representation of qualification
by Lender. Lender may contact any contractor, subcontractor or material
supplier to discuss the course of construction.





     4.8. Prohibited Contracts. Without Lender’s prior written consent,
Borrower shall not contract for any materials, furnishings, equipment, fixtures
or other parts or components of the Improvements, if any third party shall
retain any ownership interest (other than lien rights created by operation of
law) in such items after their delivery to the Property and Improvements.
Borrower shall have twenty (20) days to effect the removal of any such retained
interest not otherwise permitted above, or, provided that such interest or the
holder’s realization thereon will not jeopardize Borrower’s title to or use of
the Property, if such retained interest cannot be reasonably removed in such
period, Borrower shall have commenced such removal within such time and shall
diligently pursue its removal until completed.





     4.9. Liens and Stop Notices. If a claim of lien is recorded which affects
the Property or Improvements or a bonded stop notice is served upon Lender,
within twenty (20) calendar days after such recording or service or within five
(5) Business Days after Lender’s demand, whichever occurs first, Borrower, at
Borrower’s election, shall do one of the following: (a) pay and discharge the
claim of lien or bonded stop notice; (b) effect the release thereof by
recording or delivering to Lender a surety bond in sufficient form and amount;
or (c) provide Lender with other assurances which Lender deems, in its sole
discretion, to be satisfactory for the payment of such claim of lien or bonded
stop notice and for the full and continuous protection of Lender from the
effect of such lien or bonded stop notice.





     4.10. Construction Responsibilities. Borrower shall construct the
Improvements in a workmanlike manner substantially in accordance with the Plans
and Specifications and the recommendations of any soils or engineering report
approved by Lender pursuant to Section 3.1(d) above. Borrower shall
substantially comply with all applicable laws, ordinances, rules, regulations,
building restrictions, recorded covenants and restrictions, and requirements of
all regulatory authorities having jurisdiction over the Property or
Improvements. Borrower shall be solely responsible for all aspects of
Borrower’s business and conduct in connection with the Property and
Improvements, including, without limitation, for the quality and suitability of
the Plans and Specifications and their compliance with all governmental
requirements, the supervision of the work of construction, the qualifications,
financial condition and performance of all architects, engineers, contractors,
material suppliers, consultants and property managers, and the accuracy of all
applications for payment and the proper application of all disbursements.
Lender is not obligated to supervise, inspect or inform Borrower or any third
party of any aspect of the construction of the Improvements or any other matter
referred to above.





     4.11. Assessments and Community Facilities Districts. Without Lender’s
prior written consent, Borrower shall not cause or suffer to become effective
or otherwise consent to the formation of any assessment district or community
facilities district which




Page 14







 



includes all or any part of the Property and
Improvements pursuant to: (a) the Mello-Roos Community Facilities Act of 1982;
(b) the Municipal Improvement Act of 1913; or (c) any other comparable or
similar statute or regulation. Nor shall Borrower cause or otherwise consent
to the levying of special taxes or assessments against the Property and
Improvements by any such assessment district or community facilities district.





     4.12. Delay. Borrower shall promptly notify Lender in writing of any
event causing delay or interruption of construction, or the timely completion
of construction. The notice shall specify the particular work delayed, and the
cause and period of each delay.





     4.13. Inspections. Lender shall have the right to enter upon the Property
at all reasonable times to inspect the Improvements and the construction work
to verify information disclosed or required pursuant to this Agreement. Any
inspection or review of the Improvements by Lender is solely to determine
whether Borrower is properly discharging its obligations to Lender and may not
be relied upon by Borrower or by any third party as a representation or
warranty of compliance with this Agreement or any other agreement. Lender owes
no duty of care to Borrower or any third party to protect against, or to inform
Borrower or any third party of, any negligent, faulty, inadequate or defective
design or construction of the Improvements as determined by Lender.





     4.14. Surveys. Upon Lender’s written request, Borrower shall promptly
deliver to Lender: (a) a current survey of the Property showing the location
of the Improvements on the Property (as constructed as of the date of such
survey), all easements, encroachments and applicable governmental set backs;
and (b) upon completion of the Improvements, an as-built survey acceptable to a
title insurer for purposes of issuing an ALTA policy of title insurance. All
such surveys shall be performed and certified by a licensed engineer or
surveyor acceptable to the title insurer.





ARTICLE 5. INSURANCE






     Borrower shall, while any obligation of Borrower under any Loan Document
remains outstanding, maintain at Borrower’s sole expense, with licensed
insurers approved by Lender, the following policies of insurance in form and
substance satisfactory to Lender:





     5.1. Title Insurance. A Title Policy insuring Lender, in the principal
amount of the Loan, of the validity and the priority of the lien of the Deed of
Trust upon the Property and Improvements, subject only to matters approved by
Lender in writing. During the term of the Loan, Borrower shall deliver to
Lender, within five (5) Business Days after Lender’s written request, such
other endorsements to the Title Policy as Lender may reasonably require.







Page 15







 


     5.2. Property Insurance. A Builders Risk Completed Value Hazard Insurance
policy, including, without limitation, such endorsements as Lender may require,
insuring Lender against damage to the Property and Improvements in an amount
acceptable to Lender. Lender shall be named on the policy under a Lender’s
Loss Payable Endorsement (form #438BFU or equivalent).





     5.3. Flood Hazard Insurance. A policy of flood insurance, as required by
applicable governmental regulations, or as deemed necessary by Lender.





     5.4. Liability Insurance. A policy of commercial general liability
insurance with limits as required by Lender, insuring against liability for
injury and/or death to any person and/or damage to any property occurring on
the Property and/or in the Improvements from any cause whatsoever.





     5.5. General. Borrower shall provide to Lender the originals of all
required insurance policies, or other evidence of insurance acceptable to
Lender. All insurance policies shall provide that the insurance shall not be
cancelable or materially changed without ten (10) days prior written notice to
Lender. Lender shall be named under a Lender’s Loss Payable Endorsement (form
#438BFU or equivalent) on all insurance policies which Borrower actually
maintains with respect to the Property and Improvements. Borrower shall
provide to Lender evidence of any other hazard insurance Lender may deem
necessary at any time during the Loan.





ARTICLE 6. REPRESENTATIONS AND WARRANTIES






     As a material inducement to Lender’s entry into this Agreement, Borrower
represents and warrants to Lender as of the Effective Date and as of the date
each Application for Payment is submitted to Lender pursuant to Exhibit D
(provided, however, that to the extent circumstances have changed for reasons
beyond the reasonable control of Borrower such that Borrower must qualify such
representations and warranties as of the date of delivery of any such
Application for Payment, such qualification, to the extent it renders the
applicable representation materially untrue or breaches the applicable
warranty, shall merely be a failure of condition to Lender’s obligation to
disburse funds under the provisions of Exhibit D, as opposed to constituting an
Event of Default) that:





     6.1. Authority/Enforceability. Borrower is in substantial compliance with
all laws and regulations applicable to its organization, existence and
transaction of business and has all necessary rights and powers to own, develop
and operate the Property and Improvements as contemplated by the Loan
Documents.





     6.2. Binding Obligations. Borrower is authorized to execute, deliver and
perform its obligations under the Loan Documents and such obligations are and
shall continue to be valid and binding obligations of Borrower.





Page 16







 


     6.3. Formation and Organizational Documents. Borrower has delivered to
Lender all formation and organizational documents of Borrower and all such
formation and organizational documents remain in full force and effect and have
not been amended or modified since they were delivered to or otherwise approved
by Lender. Borrower shall immediately provide Lender with copies of any
amendments or modifications of the formation or organizational documents, to
the extent permitted hereunder.





     6.4. No Violation. Borrower’s execution, delivery, and performance under
the Loan Documents do not: (a) require any consent or approval not heretofore
obtained under any partnership agreement, operating agreement, limited
liability company agreement, articles of incorporation, bylaws or other
document; (b) materially violate any governmental requirement applicable to the
Property and Improvements or any other statute, law, regulation or ordinance or
any order or ruling of any court or governmental entity; (c) materially
conflict with, or constitute a material breach or default or permit the
acceleration of obligations under any agreement, contract, lease, or other
document by which the Borrower is or the Property and Improvements are bound or
regulated; or (d) materially violate any statute, law, regulation or ordinance,
or any order of any court or governmental entity.





     6.5. Compliance with Laws . Borrower has, and at all applicable times
shall have obtained, all permits, licenses, exemptions, and approvals necessary
to construct, occupy, operate and market the Property and Improvements for the
applicable stage of development and operation, and shall maintain substantial
compliance with all governmental requirements applicable to the Property and
Improvements and all other applicable statutes, laws, regulations and
ordinances necessary for the transaction of its business.





     6.6. Litigation. Except as disclosed to Lender in writing, there are no
claims, actions, suits, or proceedings pending, or to Borrower’s knowledge
threatened, against Borrower, or affecting the Property or Improvements that
are of a material nature and that, if successfully prosecuted against Borrower
would create a material adverse change in the financial condition of Borrower.





     6.7. Financial Condition. All financial statements and information
relating to the financial condition of Borrower, the Property, and the
Improvements, which have been heretofore and hereafter are delivered to Lender
by Borrower, fairly and accurately represent as of the date of such delivery
the financial condition of the subject thereof and have been prepared (except
as noted therein) in accordance with generally accepted accounting principles
consistently applied. Borrower acknowledges and agrees that Lender may request
and obtain additional information from third parties regarding any of the
above, including, without limitation, credit reports.





     6.8. [Deleted]





Page 17







 


     6.9. Loan Proceeds and Adequacy. The undisbursed Loan proceeds, together
with Borrower’s Funds and all other sums, if any, to be provided by Borrower as
shown in Exhibit C, are sufficient to construct the Improvements in accordance
with the terms and conditions of this Agreement.





     6.10. Accuracy. All reports, documents, instruments, information and
forms of evidence delivered to Lender concerning the Loan or security for the
Loan or required by the Loan Documents are accurate, correct and sufficiently
complete to give Lender true and accurate knowledge of their subject matter,
and do not contain any material misrepresentation or omission.





     6.11. Tax Liability. Borrower has filed all required federal, state,
county and municipal tax returns and has paid all taxes and assessments owed
and payable by Borrower or with respect to the Property, and Borrower has no
knowledge of any basis for any additional payment with respect to any such
taxes and assessments.





     6.12. Utilities. Subject to the provisions of Section 4.3 of this
Agreement, all utility services, including, without limitation, gas, water,
sewage, electrical and telephone, necessary for the development and occupancy
of the Property and Improvements are available at or within the boundaries of
the Property, or Borrower has taken all steps reasonably necessary to date to
assure that all such services will be available upon completion of the
Improvements.





     6.13. Compliance. Borrower is familiar with and in substantial compliance
with all governmental requirements for the development of the Property and
construction of the Improvements and, subject to the provisions of Section 4.3
of this Agreement, will substantially conform to and comply with all
governmental requirements and the Plans and Specifications.





     6.14. Americans With Disabilities Act Compliance. The Improvements have
been or will be designed and shall be constructed and completed, and thereafter
maintained, in general accordance and substantial compliance with all of the
requirements of the Americans with Disabilities Act, of July 26, 1990, Pub. L.
No. 101-336, 104 Stat. 327, 42 U.S.C. § 12101, et seq., as amended from time to
time. Borrower shall be responsible for all ADA compliance costs; provided
however, Lender acknowledges and agrees that construction and operation of
portions of the Improvements which are intended to satisfy the foregoing
representation and warranty and any related covenant of Borrower may be funded
by the Loan.





     6.15. Business Loan. The Loan is a business loan transaction in the
stated amount solely for the purpose of carrying on the business of Borrower
and none of the proceeds of the Loan will be used for the personal, family or
agricultural purposes of the Borrower.





Page 18







 


ARTICLE 7. HAZARDOUS MATERIALS






     7.1. Special Representations and Warranties. Without in any way limiting
the other representations and warranties set forth in this Agreement, and after
reasonable investigation and inquiry, and except as disclosed in the
Environmental Report or otherwise disclosed in writing to Lender prior to the
date of this Agreement, Borrower hereby specially represents and warrants to
the best of Borrower’s knowledge as of the date of this Agreement as follows:





          (a) Hazardous Materials. The Property and Improvements are not and have
not been a site for the use, generation, manufacture, storage, treatment,
release, threatened release, discharge, disposal, transportation or presence of
any oil, flammable explosives, asbestos, urea formaldehyde insulation,
radioactive materials, hazardous wastes, toxic or contaminated substances or
similar materials, including, without limitation, any substances which are
“hazardous substances,” “hazardous wastes,” “hazardous materials,” “toxic
substances,” “wastes,” “regulated substances,” “industrial solid wastes,” or
“pollutants” under the Hazardous Materials Laws, as described below, and/or
other applicable environmental laws, ordinances or regulations (collectively,
the “Hazardous Materials”). “Hazardous Materials” shall not include
commercially reasonable amounts of such materials used in the ordinary course
of preparation of the Property for construction, construction of the
Improvements and operation of the Property which are used and stored in
accordance with all applicable environmental laws, ordinances and regulations.





          (b) Hazardous Materials Laws . The Property and Improvements are in
substantial compliance with all laws, ordinances and regulations relating to
Hazardous Materials (“Hazardous Materials Laws”), including, without
limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et
seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C.
Section 6901 et seq.; the Comprehensive Environment Response, Compensation and
Liability Act of 1980, as amended (including the Superfund Amendments and
Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the
Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the
Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section
11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C.
Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section
300f et seq.; and all comparable state and local laws, laws of other applicable
jurisdictions or orders and regulations.





          (c) Hazardous Materials Claims. There are no claims or actions
(“Hazardous Materials Claims”) pending or threatened against Borrower, the
Property or Improvements by any governmental entity or agency or by any other
person or entity relating to Hazardous Materials or pursuant to the Hazardous
Materials Laws.





Page 19







 


          (d) Border Zone Property. The Property has not been designated as Border
Zone Property under the provisions of California Health and Safety Code,
Sections 25220 et seq. and there has been no occurrence or condition on any
real property adjoining or in the vicinity of the Property that could cause the
Property or any part thereof to be designated as Border Zone Property.





     7.2. Hazardous Materials Covenants. Borrower agrees as follows:





          (a) No Hazardous Activities. Except for the implementation of remediation
programs or plans required under agreements, orders or consent decrees
referenced in the Environmental Report, Borrower shall not cause or permit the
Property or Improvements to be used as a site for the use, generation,
manufacture, storage, treatment, release, discharge, disposal, transportation
or presence of any Hazardous Materials.





          (b) Compliance. Except to the extent such compliance is to be the result
of the implementation of remediation programs or plans required under
agreements, orders or consent decrees referenced in the Environmental Report,
Borrower shall comply and cause the Property and Improvements to comply with
all Hazardous Materials Laws.





          (c) Notices. Except for those matters set forth in the Environmental
Report or otherwise disclosed in writing to Lender prior to the date of this
Agreement, Borrower shall immediately notify Lender in writing of: (i) the
discovery of any Hazardous Materials on, under or about the Property and
Improvements; (ii) any knowledge by Borrower that the Property and Improvements
are not in material compliance with any Hazardous Materials Laws; (iii) any
Hazardous Materials Claims; and (iv) the discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Property
that could cause the Property or any part thereof to be designated as Border
Zone Property.





          (d) Remedial Action. Except with respect to any Hazardous Materials,
violations of Hazardous Materials Laws and Hazardous Materials Claims that are
to be remedied by the implementation of remediation programs or plans required
under agreements, orders or consent decrees referenced in the Environmental
Report, in response to the presence of any Hazardous Materials on, under or
about the Property or Improvements, Borrower shall immediately take, at
Borrower’s sole expense, all remedial action required by any Hazardous
Materials Laws or any judgment, consent decree, settlement or compromise in
respect to any Hazardous Materials Claims.





          (e) Inspection By Lender. Upon reasonable prior notice to Borrower,
Lender, its employees and agents, may from time to time (whether before or
after the commencement of a nonjudicial or judicial foreclosure proceeding)
enter and inspect the Property and Improvements for the purpose of determining
the existence, location, nature




Page 20







 



and magnitude of any past or present release
or threatened release of any Hazardous Materials into, onto, beneath or from
the Property and Improvements.





          (f) Hazardous Materials Indemnity. BORROWER HEREBY AGREES TO DEFEND,
INDEMNIFY AND HOLD HARMLESS LENDER, ITS DIRECTORS, OFFICERS, MEMBERS, MANAGERS,
EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES,
DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND LEGAL OR
OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES)
WHICH LENDER MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF THE USE,
GENERATION, MANUFACTURE, STORAGE, DISPOSAL, THREATENED DISPOSAL, TRANSPORTATION
OR PRESENCE OF HAZARDOUS MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY OR
IMPROVEMENTS. BORROWER SHALL IMMEDIATELY PAY TO LENDER UPON DEMAND ANY AMOUNTS
OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE
INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE
PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND,
INDEMNIFY AND HOLD HARMLESS LENDER SHALL SURVIVE THE CANCELLATION OF THE NOTE
AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THE DEED OF TRUST.





          (g) Legal Effect of Section. Borrower and Lender agree that: (a) this
Article VII is intended as Lender’s written request for information (and
Borrower’s response) concerning the environmental condition of the real
property security as required by California Code of Civil Procedure §726.5; and
(b) each provision in this Article (together with any indemnity applicable to a
breach of any such provision) with respect to the environmental condition of
the real property security is intended by Lender and Borrower to be an
“environmental provision” for purposes of California Code of Civil Procedure
§736, and as such it is expressly understood that Borrower’s duty to indemnify
Lender hereunder shall survive: (i) any judicial or non-judicial foreclosure
under the Deed of Trust, or transfer of the Property in lieu thereof; (ii) the
release and reconveyance or cancellation of the Deed of Trust; and (iii) the
satisfaction of all of Borrower’s obligations under the Loan Documents.





ARTICLE 8. SET ASIDE LETTERS






     8.1. Set Aside Letters. If, at Borrower’s request, Lender issues any
letter or letters (“Set Aside Letter”) to any governmental agency (“Obligee”)
or bonding company (“Surety”) whereby Lender agrees to allocate Loan proceeds
for the construction of off-site, common area, or other improvements required
by any governmental agency or for which bonds may be required (“Bonded Work”)
in connection with the development of the Property, Borrower represents,
warrants, covenants and agrees as follows:





Page 21







 


          (a) The sum which Borrower requests Lender to allocate for the Bonded Work
shall be sufficient to pay for the construction and completion cost of the
Bonded Work in accordance with any agreement between Borrower and Obligee or as
may be required under the Project Entitlements, and a copy of such agreement
shall be furnished to Lender by Borrower prior to and as a condition precedent
to the issuance by Lender of any Set Aside Letter;





          (b) Lender is irrevocably and unconditionally authorized to disburse to
the Obligee or Surety all or any portion of said allocated Loan proceeds upon a
demand of such Surety or Obligee made in accordance with the terms and
conditions of the Set Aside Letter;





          (c) Any disbursements or payments which Lender makes or may be obligated
to make under any Set Aside Letter, whether made directly to the Surety,
Obligee, or to others for completion of all or part of the Bonded Work, shall
be deemed a disbursement under this Agreement to or for the benefit or account
of Borrower;





          (d) BORROWER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER FROM ANY
CLAIM, DEMAND, CAUSE OF ACTION, DAMAGE, LOSS OR LIABILITY, INCLUDING, WITHOUT
LIMITATION, ANY COURT COSTS AND ATTORNEYS’ FEES AND EXPENSES, WHICH LENDER MAY
SUFFER OR INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF ITS ISSUANCE OF OR
COMPLIANCE WITH ANY REQUESTED SET ASIDE LETTER. BORROWER SHALL PAY ANY
INDEBTEDNESS ARISING UNDER THIS INDEMNITY TO LENDER IMMEDIATELY UPON DEMAND OF
LENDER. BORROWER’S DUTY TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER
HEREUNDER SHALL SURVIVE THE RELEASE AND CANCELLATION OF THE NOTE AND THE FULL
OR PARTIAL RELEASE OR RECONVEYANCE OF THE DEED OF TRUST OR OTHER LOAN
DOCUMENTS;





          (e) Lender shall have no obligation to release any collateral or security
under the Loan Documents unless and until Lender has received a full and final
written release of its obligations under each Set Aside Letter; and





          (f) Lender is not obligated to issue any Set Aside Letter and may refuse
to do so in Lender’s sole and absolute discretion.





ARTICLE 9. COVENANTS OF BORROWER






     9.1. Expenses. Borrower shall immediately pay Lender upon demand all
Lender’s reasonable out-of-pocket costs and expenses actually incurred by
Lender in connection with: (a) the preparation of this Agreement, all other
Loan Documents and Other Related Documents contemplated hereby; (b) the
administration of this Agreement, the other Loan Documents and Other Related
Documents for the term of the Loan; and




Page 22







 



(c) the enforcement or satisfaction by Lender of any of Borrower’s obligations
under this Agreement, the other Loan Documents or the Other Related Documents.
For all purposes of this Agreement, Lender’s costs and expenses shall include,
without limitation, all appraisal fees, cost engineering and inspection fees,
legal fees and expenses, accounting fees, environmental consultant fees,
auditor fees, and the cost to Lender of any title insurance premiums, title
surveys, reconveyance and notary fees. Borrower recognizes and agrees that
Lender may, at its option, require inspection of the Property and Improvements
by an independent supervising architect and/or cost engineering specialist: (i)
prior to each advance; (ii) at least once each month during the course of
construction even though no disbursement is to be made for that month; (iii)
upon completion of the Improvements; and (iv) at least semi-annually thereafter
during the term of the Loan. To the extent that any of the foregoing are
performed or incurred by employees of Lender or any Affiliate of Lender, no
such costs, or any associated travel, lodging, subsistence or other expenses
for such goods and services shall be owed by Borrower.





     9.2. ERISA Compliance. Borrower shall at all times comply with the
provisions of ERISA with respect to any retirement or other employee benefit
plan to which it is a party as employer, and as soon as possible after Borrower
knows, or has reason to know, that any Reportable Event (as defined in ERISA)
with respect to any such plan of Borrower has occurred, it shall furnish to
Lender a written statement setting forth details as to such Reportable Event
and the action, if any, which Borrower proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event furnished to the
Pension Benefit Guaranty Corporation.





     9.3. Leasing. Once the Improvements are completed and ready for
occupancy, Borrower shall use its commercially reasonable efforts to maintain
all leasable space in the Property leased at no less than fair market rental
rates.





     9.4. Approval of Leases. Exhibit E sets forth certain leasing parameters
applicable to the Property. Borrower shall not execute any proposed lease not
conforming to such leasing parameters without Lender’s prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed.





     9.5. Revenue to be Applied to Debt Service. Following the occurrence and
during the continuation of any Default, no Distributions shall be made or
distributed to any partner, venturer, member or equity investor of Borrower.





     9.6. Subdivision Maps. Prior to recording any final map, plat, parcel
map, lot line adjustment or other subdivision map of any kind covering any
portion of the Property (collectively, “Subdivision Map”), Borrower shall
submit such Subdivision Map to Lender for Lender’s review and approval, which
approval shall not be unreasonably withheld. Within ten (10) Business Days
after Lender’s receipt of such Subdivision Map, Lender shall provide Borrower
written notice if Lender disapproves of said Subdivision Map. Lender shall be
deemed to have approved the Subdivision Map if such notice is not




Page 23







 



so provided
to Borrower. Within five (5) Business Days after Lender’s request, Borrower
shall execute, acknowledge and deliver to Lender such amendments to the Loan
Documents as Lender may reasonably require to reflect the change in the legal
description of the Property resulting from the recordation of any Subdivision
Map. In connection with and promptly after the recordation of any amendment or
other modification to the Deed of Trust recorded in connection with such
amendments, Borrower shall deliver to Lender, at Borrower’s sole expense, a
title endorsement to the Title Policy in form and substance satisfactory to
Lender insuring the continued first priority lien of the Deed of Trust.
Subject to the execution and delivery by Borrower of any documents required
under this Section, Lender shall, if required by applicable law, sign any
Subdivision Map approved, or deemed to be approved, by Lender pursuant to this
Section.





     9.7. Further Assurances. Upon Lender’s request and at Borrower’s sole
cost and expense, Borrower shall execute, acknowledge and deliver any other
instruments and perform any other acts necessary, desirable or proper, as
determined by Lender, to carry out the purposes of this Agreement and the other
Loan Documents or to perfect and preserve any liens created by the Loan
Documents.





     9.8. Assignment. Without the prior written consent of Lender, Borrower
shall not assign Borrower’s interest under any of the Loan Documents, or in any
monies due or to become due thereunder, and any assignment without such consent
shall be void. In this regard, Borrower acknowledges that Lender would not
make this Loan except in reliance on Borrower’s expertise, reputation, prior
experience in developing and constructing commercial real property, Lender’s
knowledge of Borrower, and Lender’s understanding that this Agreement is more
in the nature of an agreement involving personal services than a standard loan
where Lender would rely on security which already exists.





     9.9. Management of Property. Without the prior written consent of Lender,
Borrower shall not enter into any agreement providing for the management,
leasing or operation of the Property or Improvements, other than the
Development and Management Agreements.





     9.10. Governing Documents. Without the prior written consent of Lender,
Borrower shall not modify or permit to be modified the formation or
organizational documents of WEO, Borrower, or any partners, joint venturers or
members thereof.





     9.11. WAIVER OF FIDUCIARY CLAIMS. BORROWER ACKNOWLEDGES THAT EOP
INVESTOR, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, EOP PROJECT INVESTOR,
AND CERTAIN AFFILIATES THEREOF (COLLECTIVELY, “EQUITY”), ARE AFFILIATES OF
LENDER.
NEVERTHELESS, BORROWER ACKNOWLEDGES AND AGREES THAT LENDER IS ADVANCING FUNDS
TO BORROWER AS EVIDENCED BY THIS




Page 24







 



AGREEMENT SOLELY IN ITS ROLE AS A THIRD PARTY LENDER, AND THAT THIS AGREEMENT
AND ANY OTHER LOAN DOCUMENTS, TOGETHER WITH LENDER’S RIGHT TO EXERCISE ITS
REMEDIES AS A LENDER IN THE EVENT OF ANY DEFAULT, IS COMPLETELY SEPARATE FROM
EQUITY’S DIRECT OR INDIRECT OWNERSHIP OF CONSTITUENT MEMBERSHIP INTERESTS IN
BORROWER. BORROWER FURTHER ACKNOWLEDGES THAT LENDER WOULD NOT HAVE MADE THE
LOAN TO BORROWER WITHOUT THE WAIVER SET FORTH BELOW. THEREFORE, BORROWER, FOR
ITSELF AND ON BEHALF OF BORROWER’S AFFILIATES AND ALL CONSTITUENT MEMBERS AND
MANAGERS OF EITHER, HEREBY WAIVES ANY RIGHT THAT IT OR ANY SUCH AFFILIATE OR
ANY OF SUCH CONSTITUENT MEMBERS OR MANAGERS WOULD OTHERWISE HAVE, UNDER ANY OF
THE LOAN DOCUMENTS OR OTHERWISE UNDER ANY LEGAL THEORY BASED UPON STATUTORY OR
COMMON LAW, TO BRING ANY CLAIM AGAINST LENDER OR ANY PARTY THAT CONTROLS
LENDER, ASSERTING THAT LENDER’S ADVANCING FUNDS PURSUANT TO THIS AGREEMENT OR
LENDER’S EXERCISE OF ITS RIGHTS OR REMEDIES AS A LENDER HEREUNDER OR UNDER THE
DEED OF TRUST OR ANY OTHER LOAN DOCUMENTS, CONSTITUTES A BREACH BY LENDER OR
ANY PARTY THAT CONTROLS LENDER OF ANY FIDUCIARY DUTY TO BORROWER, ANY BORROWER
AFFILIATE OR TO THE CONSTITUENT MEMBERS OR MANAGERS OF EITHER. BY INITIALING
BELOW, BORROWER ACKNOWLEDGES THAT IT WAS ADVISED BY COMPETENT LEGAL COUNSEL IN
REVIEWING THIS PROVISION, INCLUDING, WITHOUT LIMITATION, A DETAILED DISCUSSION
OF THE FACT THAT LENDER’S EXERCISE OF ITS REMEDIES (FOR EXAMPLE, IN THE CONTEXT
OF COST OVERRUNS THAT BORROWER IS UNABLE TO FUND) WOULD DISPROPORTIONATELY
AFFECT BORROWER’S CONSTITUENT MEMBERS WHO HOLD DISPROPORTIONATE PROFITS
INTEREST IN BORROWER, AND THAT IT HAS ELECTED TO WAIVE ITS RIGHTS AND THE
RIGHTS OF EACH BORROWER AFFILIATE AND EACH OF THEIR CONSTITUENT MEMBERS AND
MANAGERS AS PROVIDED ABOVE IN CONSIDERATION OF LENDER’S AGREEMENT TO ADVANCE
THE FUNDS EVIDENCED BY THIS AGREEMENT.






	 	 	 
	     
	

Borrower



ARTICLE 10. REPORTING COVENANTS






     10.1. Financial Information. Borrower hereby consents to Lender’s
obtaining from other parties copies of any and all reports that Borrower
delivers to any party under the provisions of Article 6 of the Operating
Agreement of WEO, as well as any and all reports to be delivered to any party
under the provisions of the limited liability company




Page 25







 



agreement or Operating
Agreement of Borrower. In addition, on or before the tenth (10th) day of each
month, Borrower shall deliver to Lender a reconciliation showing the balance of
the Working Capital Reserve Account as of the beginning of the first day of the
preceding calendar month, the balance of the Working Capital Reserve as of the
end of the last day of the preceding calendar month, and a line item listing of
all expenditures, together with supporting documentation, of amounts expended
from the Working Capital Reserve Account during such period.





     To the extent not otherwise obtained as provided above, within thirty (30)
days after Lender’s request, Borrower shall also deliver to Lender such
quarterly and other financial information regarding the Property, or Borrower.
If audited financial information is prepared, Borrower shall deliver to Lender
copies of that information within fifteen (15) days after its final
preparation. Except as otherwise agreed to by Lender, all such financial
information shall be prepared in accordance with generally accepted accounting
principles consistently applied. Upon written request of Lender, Borrower use
good faith efforts to obtain and deliver to Lender any specific financial
reports and information pertaining to the members, managers, partners and
shareholders of Borrower.





     10.2. Books and Records. Borrower shall maintain complete books of
account and other records for the Property and Improvements and for
disbursement and use of the proceeds of the Loan and Borrower’s Funds, and the
same shall be available for inspection and copying by Lender upon reasonable
prior notice.





ARTICLE 11. DEFAULTS AND REMEDIES






     11.1. Default. The occurrence of any one or more of the following shall
constitute an event of default (hereinafter, “Default”) under this Agreement
and the other Loan Documents:





          (a) Monetary. Borrower’s failure to pay within ten (10) Business Days
following the date of delivery of written notice from Lender to Borrower that
such amount was not received when due, any sums payable under the Note or any
of the other Loan Documents or Borrower’s failure to deposit any Borrower’s
Funds as and when required under this Agreement; provided, however, that if
such written notice from Lender is an Out of Balance Notice, then, in lieu of
such 10-Business Day period, Borrower shall have a thirty (30) day period
following the date of delivery of such Out of Balance Notice before a Default
shall occur in which to deposit funds equal to the amount of the applicable
deficiency into the Borrower’s Funds Account, as contemplated by the provisions
of Section 3.1(b); further, provided, however, that no such notice or cure
period shall apply at maturity or upon acceleration; or





          (b) Performance of Obligations. Borrower’s failure to perform any
obligation in addition to those in Section 11.1(a) above under any of the Loan
Documents




Page 26







 



within thirty (30) days following the date of delivery of written
notice from Lender; provided, however, that if a longer or shorter cure period
is expressly provided for the remedy of any such failure, Borrower’s failure to
perform will not constitute a Default until such longer or shorter date as the
specified cure period expires; but provided further, however, if such Default
is curable, but the nature of such failure is such that it cannot reasonably be
cured within said thirty (30) days (or longer or shorter specified cure
period), then if Borrower fails to commence a cure thereof within said time and
thereafter fails to diligently pursue a cure thereof and fails to complete same
within ninety (90) days after Lender’s written demand; or a default by Borrower
(following any applicable notice and cure period) under any of the Other
Related Documents; or





          (c) Construction; Use. (i) There is any material deviation in the work of
construction from the Plans and Specifications or governmental requirements
from that required under this Agreement or the appearance or use of defective
workmanship or materials in constructing the Improvements, and Borrower fails
to remedy the same to Lender’s satisfaction within ten (10) Business Days after
Lender’s written demand to do so, or if the nature of such deviation or defect
is curable but such that it cannot reasonably be cured within said ten (10)
Business Days, then if Borrower fails to commence a cure thereof within said
ten (10) Business Days and thereafter fails to diligently pursue a cure thereof
and complete same within ninety (90) days after Lender’s written demand; or
(ii) subject to the provisions of Section 4.3, there is a cessation of
construction of the Improvements prior to completion for a continuous period of
more than fifteen (15) days; or (iii) the construction, renovation, sale or
leasing of any of the Improvements in accordance with the Loan Documents is
prohibited, enjoined or delayed for a continuous period of more than forty-five
(45) days; or (iv) subject to the provisions of Section 4.3, utilities or other
public services necessary for the full occupancy and utilization of the
Property and Improvements are curtailed for a continuous period of more than
thirty (30) days; or





          (d) Liens, Attachment; Condemnation. (i) The recording of any claim of
lien against the Property or Improvements or the service on Lender of any
bonded stop notice relating to the Loan and the continuance of such claim of
lien or bonded stop notice for twenty (20) days without discharge, satisfaction
or provision for payment being made by Borrower in a manner satisfactory to
Lender, subject to the provisions of Section 4.9 hereof and Section 5.5 of the
Deed of Trust ; or (ii) the condemnation, seizure or appropriation of, or
occurrence of an uninsured casualty with respect to any material portion of
the Property or Improvements that is not otherwise offset by Borrower’s deposit
of sufficient restoration funds (including any applicable deductible amount
under any applicable policy of casualty insurance) into the Borrower’s Funds
Account within forty-five (45) days after the occurrence of such event; or
(iii) the sequestration or attachment of, or any levy or execution upon any of
the Property or Improvements, any other collateral provided by Borrower under
any of the Loan Documents, any monies in the Account or in the Borrower’s Funds
Account, or any substantial portion of the other




Page 27







 



assets of Borrower, which
sequestration, attachment, levy or execution is not released, expunged or
dismissed prior to the earlier of forty-five (45) days or the sale of the
assets affected thereby; or





          (e) Representations and Warranties. (i) The material failure of any
representation or warranty of Borrower in any of the Loan Documents to be true,
correct and complete as of the date made, and the continuation of such failure
for more than ten (10) Business Days after written notice to Borrower from
Lender requesting that Borrower cure such failure; or





          (f) Voluntary Bankruptcy; Insolvency; Dissolution. (i) The filing of a
petition by Borrower for relief under the Bankruptcy Code, or under any other
present or future state or federal law regarding bankruptcy, reorganization or
other debtor relief law; (ii) a general assignment by Borrower for the benefit
of creditors; or (iii) Borrower applying for, or the appointment of, a
receiver, trustee, custodian or liquidator of Borrower or any of its property;
or





          (g) Involuntary Bankruptcy. (i) The filing of any pleading or an answer
by Borrower in any involuntary proceeding under the Bankruptcy Code or other
debtor relief law which admits the jurisdiction of the court or the petition’s
material allegations regarding Borrower’s insolvency; or (ii) the failure of
Borrower to effect a full dismissal of any involuntary petition under the
Bankruptcy Code or under any other debtor relief law that is filed against
Borrower or in any way restrains or limits Borrower or Lender regarding the
Loan, the Property or the Improvements, prior to the earlier of the entry of
any court order granting relief sought in such involuntary petition, or
forty-five (45) days after the date of filing of such involuntary petition; or





          (h) Partners; Indemnitors. The occurrence of any of the events specified
in Section 11.1(f) or 11.1(g) as to Wilson Investors – California, LLC, a
Delaware limited liability company (“WIC”); or





          (i) Change In Management or Control. The occurrence of any material
management or organizational change in Borrower or in the partners, venturers
or members of Borrower, excluding Permitted Transfers, but including, without
limitation, any dispute among the constituent members or partners of Borrower,
involving as at least one of the disputants a party that is neither WEO nor
Equity (nor any party controlling, controlled by or under common control with
either), and which Lender determines, in its sole and absolute discretion,
shall have a material adverse effect on the Loan, on the Property and
Improvements, or on the ability of Borrower or its partners, venturers or
members to perform their obligations under the Loan Documents; or





          (j) Loss of Priority. The failure at any time of the Deed of Trust to be
a valid first lien upon the Property and Improvements or any portion thereof,
other than as a result of any release or reconveyance of the Deed of Trust with
respect to all or any




Page 28







 



portion of the Property and Improvements pursuant to the
terms and conditions of this Agreement; or





          (k) Hazardous Materials. The discovery of any significant Hazardous
Materials in, on or about the Property or Improvements subsequent to the
Effective Date (to the extent not disclosed in the Environmental Report or
otherwise disclosed in writing to Lender prior to the date of this Agreement);
provided, however, if such Default is curable, but the nature of such failure
is such that it cannot reasonably be cured within thirty (30) days, then if
Borrower fails to commence a cure thereof within said time and thereafter fails
to diligently pursue a cure thereof and fails to complete same within ninety
(90) days after Lender’s written demand. Any such Hazardous Materials shall be
“significant” for this purpose if said Hazardous Materials, in Lender’s sole
discretion, have a materially adverse impact on the value of the Property and
Improvements; or





          (l) Other Related Documents. The default by Borrower under any of the
Other Related Documents following the satisfaction or expiration of any notice
or cure periods applicable thereunder.





     Notwithstanding any of the foregoing or anything to the contrary in this
Agreement, to the extent that any Default can be cured by the payment of money
directly to Lender, to Borrower’s Funds Account or to any third party to
reimburse same for materials or services already delivered or performed or for
the purpose of delivering materials or performing services which if so done
would cure said Default, the applicable cure period specified in this Agreement
shall be extended by an additional sixty (60) days to allow Borrower to
undertake any necessary capital calls or to seek or arrange the necessary
partnership loans.





     11.2. Acceleration Upon Default; Remedies. Upon the occurrence of any
Default specified in this Article XI, Lender may, at its sole option, declare
all sums owing to Lender under the Note, this Agreement and the other Loan
Documents immediately due and payable. Upon such acceleration, Lender may, in
addition to all other remedies permitted under this Agreement and the other
Loan Documents and at law or equity, apply any sums in the Account and
Borrower’s Funds Account to the sums owing under the Loan Documents and any and
all obligations of Lender to fund further disbursements under the Loan shall
terminate.





     11.3. Disbursements to Third Parties. Upon the occurrence of a Default
occasioned by Borrower’s failure to pay money to a third party as required by
this Agreement, Lender may but shall not be obligated to make such payment from
the Loan proceeds, Borrower’s Funds, or other funds of Lender. If such payment
is made from proceeds of the Loan or from Borrower’s Funds, Borrower shall
immediately deposit with Lender, upon written demand, an amount equal to such
payment. If such payment is made from funds of Lender, Borrower shall
immediately repay such funds upon written demand of Lender. In either case,
the Default with respect to which any such payment




Page 29







 



has been made by Lender
shall not be deemed cured until such deposit or repayment (as the case may be)
has been made by Borrower to Lender.





     11.4. Lender’s Completion of Construction. Upon the occurrence of a
Default, Lender may, upon five (5) Business Days prior written notice to
Borrower, and with or without legal process, take possession of the Property
and Improvements, remove Borrower and all agents, employees and contractors of
Borrower from the Property and Improvements, complete the work of construction
and market for lease and lease space within the Property and/or Improvements.
For this purpose, Borrower irrevocably appoints Lender as its attorney-in-fact,
which agency is coupled with an interest. As attorney-in-fact, Lender may, in
Borrower’s name, take or omit to take any action Lender may deem appropriate
with respect to third parties, including, without limitation, exercising
Borrower’s rights under all contracts concerning the Property and/or
Improvements, but excluding the Loan Documents.





     11.5. Lender’s Cessation of Construction. If Lender determines at any
time that the Improvements are not being constructed substantially in
accordance with the requirements under this Agreement, then upon the occurrence
of a Default therefor, Lender may, upon five (5) Business Days prior written
notice to Borrower, immediately cause all construction to cease on any of the
Improvements affected by the condition of nonconformance. Borrower shall
thereafter not allow any construction work, other than corrective work, to be
performed on any of the Improvements affected by the condition of
nonconformance until such time as Lender notifies Borrower in writing that the
nonconforming condition has been corrected.





     11.6. Termination or Continuation of Development and Management
Agreements. Upon the occurrence of a Default wherein Lender elects to
accelerate the Loan and records a notice of default to foreclose the lien of
the Deed of Trust, Lender may elect to require Borrower to terminate the
Development and Management Agreements (and Borrower shall immediately do so),
without any termination fee or penalty, provided that all fees and expenses
previously accrued thereunder up to the effective date of such termination are
paid in full; provided however, so long as the Development and Management
Agreements are not terminated, the respective party or parties performing
services thereunder shall be entitled to continue to receive all fees and
expenses owed such party or parties under the applicable Development and
Management Agreements. In the event that Borrower reinstates the Loan under
California law prior to the foreclosure of the lien of the Deed of Trust, such
Development and Management Agreements shall be deemed to have been reinstated
as of the date of such reinstatement of the Loan.





     11.7. Repayment of Funds Advanced. Any funds expended by Lender in the
exercise of its rights or remedies under this Agreement and the other Loan
Documents shall be payable to Lender upon demand, together with interest at the
rate applicable to the principal balance of the Note from the date the funds
were expended.





Page 30







 


     11.8. Rights Cumulative, No Waiver. All Lender’s rights and remedies
provided in this Agreement and the other Loan Documents, together with those
granted by law or at equity, are cumulative and may be exercised by Lender at
any time. Lender’s exercise of any right or remedy shall not constitute a cure
of any Default unless all sums then due and payable to Lender under the Loan
Documents are repaid and Borrower has cured all other Defaults. No waiver
shall be implied from any failure of Lender to take, or any delay by Lender in
taking, action concerning any Default or failure of condition under the Loan
Documents, or from any previous waiver of any similar or unrelated Default or
failure of condition. Any waiver or approval under any of the Loan Documents
must be in writing and shall be limited to its specific terms.





ARTICLE 12. MISCELLANEOUS PROVISIONS






     12.1. Indemnity. BORROWER HEREBY AGREES TO DEFEND,
INDEMNIFY AND HOLD HARMLESS LENDER, ITS DIRECTORS, OFFICERS, MEMBERS, MANAGERS,
EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES,
DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND LEGAL OR
OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES)
WHICH LENDER MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE PURPOSE
TO WHICH BORROWER APPLIES THE LOAN PROCEEDS; (B) THE FAILURE OF BORROWER TO
PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS; (C) ANY FAILURE AT ANY TIME OF ANY OF BORROWER’S
REPRESENTATIONS OR WARRANTIES TO BE TRUE AND CORRECT; OR (D) ANY ACT OR
OMISSION BY BORROWER, ANY CONSTITUENT PARTNER OR MEMBER OF BORROWER, ANY
CONTRACTOR, SUBCONTRACTOR OR MATERIAL SUPPLIER, ENGINEER, ARCHITECT OR OTHER
PERSON OR ENTITY WITH RESPECT TO ANY OF THE PROPERTY OR IMPROVEMENTS, EXCEPT TO
THE EXTENT CAUSED OR CONTRIBUTED TO BY THE BAD FAITH, GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF LENDER. BORROWER SHALL IMMEDIATELY PAY TO LENDER UPON
DEMAND ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE
DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO
THE PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND,
INDEMNIFY AND HOLD HARMLESS LENDER SHALL SURVIVE CANCELLATION OF THE NOTE AND
THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THE DEED OF TRUST.





     12.2. Form of Documents. The form and substance of all documents,
instruments, and forms of evidence to be delivered to Lender under the terms of
this Agreement and any of the other Loan Documents shall be subject to Lender’s
approval




Page 31







 



and shall not be modified, superseded or terminated in any respect
without Lender’s prior written approval, except to the extent otherwise
provided in this Agreement.





     12.3. No Third Parties Benefited. No person other than Lender and
Borrower and their permitted successors and assigns shall have any right of
action under any of the Loan Documents.





     12.4. Notices. All notices, demands, or other communications under this
Agreement and the other Loan Documents shall be in writing and shall be
delivered to the appropriate party at the address set forth on the signature
page of this Agreement and as specified in Exhibit D (subject to change from
time to time by written notice to all other parties to this Agreement). All
communications shall be deemed served upon delivery of, or if mailed, upon
receipt or rejection after the deposit in the United States Postal Service
mail, certified postage prepaid-return receipt requested and addressed to the
address of Borrower or Lender at the address specified; provided, however, that
non-receipt of any communication as the result of any change of address of
which the sending party was not notified or as the result of a refusal to
accept delivery shall be deemed receipt of such communication.





     12.5. Attorney-in-Fact. Borrower hereby irrevocably appoints and
authorizes Lender, as Borrower’s attorney-in-fact, which agency is coupled with
an interest, to execute and/or record in Lender’s or Borrower’s name any
notices, instruments or documents that Lender deems appropriate to protect
Lender’s interest under any of the Loan Documents.





     12.6. Actions. Borrower agrees that Lender, in exercising the rights,
duties or liabilities of Lender or Borrower under the Loan Documents, may
commence, appear in or defend any action or proceeding purporting to affect the
Property, the Improvements, or the Loan Documents and Borrower shall
immediately reimburse Lender upon demand for all such expenses so incurred or
paid by Lender, including, without limitation, attorneys’ fees and expenses and
court costs.





     12.7. Right of Contest. Borrower may contest in good faith any claim,
demand, levy or assessment (other than liens and stop notices, subject to the
provisions of Section 4.9 of this Agreement) by any person other than Lender
which would constitute a Default if: (a) Borrower pursues the contest
diligently, in a manner which Lender determines is not prejudicial to Lender,
and does not impair the rights of Lender under any of the Loan Documents; and
(b) Borrower deposits with Lender any funds or other forms of assurance which
Lender in good faith determines from time to time appropriate to protect Lender
from the consequences of the contest being unsuccessful. Borrower’s compliance
with this Section shall operate to prevent such claim, demand, levy or
assessment from becoming a Default.





Page 32







 


     12.8. Relationship of Parties. The relationship of Borrower and Lender
under the Loan Documents is, and shall at all times remain, solely that of
borrower and lender, and Lender neither undertakes nor assumes any
responsibility or duty to Borrower or to any third party with respect to the
Property or Improvements, except as expressly provided in this Agreement and
the other Loan Documents.





     12.9. Delay Outside Lender’s Control. Lender shall not be liable in any
way to Borrower or any third party for Lender’s failure to perform or delay in
performing under the Loan Documents if such failure to perform or delay in
performing results directly or indirectly from, or is based upon, the action,
inaction, or purported action, of any governmental or local authority, or
because of war, rebellion, insurrection, strike, lockout, boycott or blockade
(whether presently in effect, announced or in the sole judgment of Lender
deemed probable), or from any Act of God or other cause or event beyond
Lender’s control.





     12.10. Attorneys’ Fees and Expenses; Enforcement. If any attorney is
engaged by Lender to enforce or defend any provision of this Agreement, any of
the other Loan Documents or Other Related Documents, or as a consequence of any
Default under the Loan Documents, with or without the filing of any legal
action or proceeding, and including, without limitation, any fees and expenses
incurred in any bankruptcy proceeding of the Borrower, then Borrower shall
immediately pay to Lender, upon demand, the amount of all attorneys’ fees and
expenses and all costs incurred by Lender in connection therewith, together
with interest thereon from the date of such demand until paid at the rate of
interest applicable to the principal balance of the Note as specified therein.





     12.11. Immediately Available Funds. Unless otherwise expressly provided
for in this Agreement, all amounts payable by Borrower to Lender shall be
payable only in United States currency, immediately available funds.





     12.12. Lender’s Consent. Wherever in this Agreement there is a
requirement for Lender’s consent and/or a document to be provided or an action
taken “to the satisfaction of Lender”, it is understood by such phrase that
Lender shall exercise its consent, right or judgment in a reasonable manner
given the specific facts and circumstance applicable at the time.





     12.13. Signs. Lender may place on the Property reasonable signs standard
to construction loan transactions stating that construction financing is being
provided by Lender and any other lenders or participants in the Loan, subject
to the requirements of the Project Entitlements and applicable law.





     12.14. Lender’s Agents. Lender may designate an agent or independent
contractor to exercise any of Lender’s rights under this Agreement and any of
the other Loan Documents. Any reference to Lender in any of the Loan Documents
shall include




Page 33







 



Lender’s agents, employees or independent contractors. Borrower shall pay the
costs of such agent or independent contractor either directly to such person or
to Lender in reimbursement of such costs, as applicable.





     12.15. Tax Service. Lender is authorized to secure, at Borrower’s
expense, a tax service contract with a third party vendor which shall provide
tax information on the Property and Improvements satisfactory to Lender.





     12.16. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER
MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.





     12.17. Severability. If any provision or obligation under this Agreement
and the other Loan Documents shall be determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable, that provision shall be
deemed severed from the Loan Documents and the validity, legality and
enforceability of the remaining provisions or obligations shall remain in full
force as though the invalid, illegal, or unenforceable provision had never been
a part of the Loan Documents, provided, however, that if the rate of interest
or any other amount payable under the Note or this Agreement or any other Loan
Document, or the right of collectibility therefor, are declared to be or become
invalid, illegal or unenforceable, Lender’s obligations to make advances under
the Loan Documents shall not be enforceable by Borrower.





     12.18. Heirs, Successors and Assigns. Except as otherwise expressly
provided under the terms and conditions of this Agreement, the terms of the
Loan Documents shall bind and inure to the benefit of the heirs, successors and
assigns of the parties.





Page 34







 


     12.19. Time. Time is of the essence of each and every term of this
Agreement.





     12.20. Headings. All article, section or other headings appearing in
this
Agreement and any of the other Loan Documents are for convenience of reference
only and shall be disregarded in construing this Agreement and any of the other
Loan Documents.





     12.21. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with the laws of the State of California, except to
the extent preempted by federal laws. Borrower and all persons and entities in
any manner obligated to Lender under the Loan Documents consent to the
jurisdiction of any federal or state court within the State of California
having proper venue and also consent to service of process by any means
authorized by California or federal law.





     12.22. Integration; Interpretation. The Loan Documents contain or
expressly incorporate by reference the entire agreement of the parties with
respect to the matters contemplated therein and supersede all prior
negotiations or agreements, written or oral. The Loan Documents shall not be
modified except by written instrument executed by all parties. Any reference
in any of the Loan Documents to the Property or Improvements shall include all
or any part of the Property or Improvements. Any reference to the Loan
Documents includes any amendments, renewals or extensions now or hereafter
approved by Lender in writing.





     12.23. Joint and Several Liability. The liability of all persons and
entities obligated in any manner under this Agreement and any of the Loan
Documents shall be joint and several.





[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]






Page 35







 


     12.24. Counterparts. This Agreement, any of the other Loan Documents
(except for the Note), any Other Related Documents and any subsequent
modifications, amendments, waivers, consents or supplements thereof, if any,
may be executed in any number of counterparts, each of which when executed and
delivered shall be deemed to be an original and all such counterparts together,
shall constitute one and the same instrument.





     IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of
the date appearing on the first page of this Agreement.






	 	 	 	 	 
	 	“Lender”
	 
	 	Riverside Finance Company, L.L.C.,

a Delaware limited liability company
	 
	 	By: 	EOP Operating Limited Partnership,

a Delaware limited partnership,
its
sole member
	 
	 	 	By:	Equity Office Properties Trust,

a Maryland real estate investment trust,

its general partner
	 
	 			By:	/s/  ROBERT J. WINTER, JR.
		

	 			Name: 	 Robert J. Winter, Jr.
		

	 			Title:	Executive Vice President
		

	 
	 
	 	Lender’s Address:

Two North Riverside Plaza

Chicago, IL 60606

Attention: General Counsel







[SIGNATURES CONTINUED ON FOLLOWING PAGE]






Page 36







 



	 	 	 	 	 
	 	“Borrower”
	 
	 	WEO – CONCAR, LLC,

a California limited liability company
	 
	 	By: 	Wilson/Equity Office, LLC,

a Delaware limited liability company,
its Manager
	 
	 	 	By:	Wilson Investors – California, LLC,

a Delaware limited liability company,

its Manager
	 
	 			By:	/s/  THOMAS P. SULLIVAN
		
Thomas P. Sullivan
	 			Its:	Manager
	 
	 
	 	Borrower’s Address:

c/o Wilson/Equity Office, LLC

199 First Street, Suite 200

San Francisco, CA 94105
	 	Attn:	Thomas
P. Sullivan, President

Jacqueline U. Moore, General Counsel






Page 37







 


EXHIBIT A






DESCRIPTION OF PROPERTY






All the certain real property located in the City of San Mateo, County of San
Mateo, State of California, described as follows:





A.     A ground lease by and
between Concar Enterprises, Inc., successor-in-interest to Concar Ranch and
Enterprises, Inc. (“Landlord”), and The Concar Venture, a California limited
partnership (“Sublessor”), successor-in-interest to the original tenant,
dated January 28, 1971, as amended by the Addendum to Existing Ground Lease
dated January 28, 1971, the Second Addendum to Existing Ground Lease dated
March 18, 1992, the Second [sic] Addendum to Existing Ground Lease dated
September/October, 1994, and the Amendment to the Existing Ground Lease and
Consent to Sublease by and among Landlord, Sublessor and WEO-Concar LLC
(“Tenant”), dated December 10, 1998 (the “Consent ”) (as so amended, the
“Existing Ground Lease”), as disclosed by the Memorandum of the Ground Lease
and Sublease recorded on December 15, 1998, as Document No. 98-209952 in the
Official Records of San Mateo County.





B.     A sublease of the Existing Ground Lease by and between Sublessor and
Tenant, dated November 14, 1997, as amended by those certain (i) First
Amendment Letter Agreement dated January 14, 1998, (ii) Second Amendment to
Sublease dated February 16, 1998, (iii) Third Amendment to Sublease dated June
26, 1998, (iv) Fourth Amendment Letter Agreement to Sublease dated July 29,
1998, (v) Fifth Amendment Letter Agreement to Sublease dated August 31, 1998,
(vi) the Consent (defined above), all the foregoing documents as disclosed by
the Memorandum of the Ground Lease and Sublease recorded on December 15, 1998,
as Document No. 98-209952 in the Official Records of San Mateo County, (viii)
the Ground Lessor’s Estoppel Statement and Three Party Agreement by and among
the Tenant, Lender and Landlord dated as of November 21, 2002, a memorandum of
which was recorded on November      , 2002, as Document No. 2002-     in
the Official Records of San Mateo County, California, and (ix) Sublessor’s
Estoppel Statement and Three Party Agreement by and among the Tenant, Lender
and Sublessor dated as of November 21, 2002 (as so amended, the “Sublease”).





C.     A Ground Lease dated December 10, 1998, by and between Landlord (Concar
Enterprises, Inc., as successor in interest to the original Landlord) and
predecessor to Tenant, Office Opportunity Associates, LLC, a California limited
liability company, lessee, as disclosed by that certain Memorandum of Ground
Lease and Sublease recorded December 15, 1998, Document No. 98-209952, in the
Official Records of San Mateo County, California, and as amended by those
certain: (i) First Amendment to Ground Lease dated November 13, 2001, (ii)
Second Amendment to Ground Lease dated as of November 21, 2002, as disclosed by
the Memorandum of Lease Amendments dated as of November 21, 2002 which was
recorded on November      , 2002, as Document No. 2002-     in the
Official Records of San Mateo County, California, and (iii) Ground Lessor’s
Estoppel Statement and Three Party Agreement among the Tenant, Lender and
Landlord dated as of November 21, 2002, a memorandum of which was recorded on
November      , 2002, as Document No. 2002-     in the Official Records
of San Mateo County, California (as so amended the “Lease”), by and between
Landlord and Tenant.





The land referred to in this document that is subject to
the Lease, the Existing Ground Lease and the




 







 



Sublease, is situated in the State of California, County of San Mateo, City of
San Mateo and is described as follows:





Parcel 1, as shown on Parcel Map 380 filed September 27, 2001, Book 73 of
Parcel Maps, Pages 95 and 96, San Mateo County Records.






	 	 	 	 	 
	A.P. No.:	 	
035-243-070
	 	JPN 035 024 243 07
	A.P. No.:	 	
035-243-080
	 	JPN 035 024 243 08





Page 2







 


EXHIBIT B






DOCUMENTS






     A.     Loan Documents. The documents listed below, numbered 1 through 6,
inclusive, and amendments, modifications and supplements thereto which have
received the prior written consent of Lender, together with any documents
executed in the future that are approved by Lender and that recite that they
are “Loan Documents” for purposes of this Agreement are collectively referred
to herein as the Loan Documents.





     1.     This Agreement;





     2.     Promissory Note Secured by Deed of Trust of even date herewith in the
original principal amount of the Loan made by Borrower payable to the order of
Lender;





     3.     Construction Deed of Trust with Absolute Assignment of Leases and
Rents, Security Agreement and Fixture Filing of even date herewith executed by
Borrower, as Trustor, to First American Title Company, as Trustee, for the
benefit of Lender, as Beneficiary;





     4.     State of California Uniform Commercial Code — Financing Statement -
Form UCC-1, of even date herewith, prepared for Borrower as Debtor;





     5.     Assignment of Construction Agreements/Contractor’s Consent of even date
herewith executed by Borrower and Contractor in favor of Lender;





     6.     Assignment of Agreements, Plans and Specifications and Architect’s/
Engineer’s Consent of even date herewith executed by Borrower and
Architect/Engineer in favor of Lender.





     B.     Other Related Documents (Which Are Not Loan Documents):





     1.     Sublease, as defined in Exhibit A.





     2.     Lease, as defined in Exhibit A.





 







 


EXHIBIT C







FINANCIAL REQUIREMENT ANALYSIS



     The Financial Requirement Analysis set forth herein represents an analysis
of the total costs necessary in Borrower’s estimation to perform Borrower’s
obligations under the Loan Documents.





CONCAR — CONSTRUCTION LOAN FORECASTED COSTS







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amounts	 	 	Additional	 
	 	 	Equity Contributed	 	 	Additional Equity	 	 	Advanced Under	 	 	Amounts To Be	 
	Total Forecasted	 	By Borrower	 	 	To Be Contributed	 	 	Construction Loan	 	 	Advanced Under	 
	Costs1	 	Through 11/30/012	 	 	By Borrower	 	 	Through 6/30/02	 	 	Construction Loan	 
	
	 	
	 	 	
	 	 	
	 	 	
	 
	$55,390,788
	 	$	13,155,312	 	 	 		 	 	$	24,836,314	 	 	$	17,399,162	 



     1 The Total Forecasted Costs shall be updated monthly by Borrower and
submitted with the following month’s disbursement request, provided that the
Total Cash amount in the Total Forecasted Costs column shall not change, except
as expressly permitted in this Agreement.





     2 Borrower’s Required Equity Contribution in the amount of $13,155,312 is
reflected in this column.





 







 


EXHIBIT D






DISBURSEMENT PLAN






     A.     Timing of Disbursement. Unless another provision of this Agreement
specifies otherwise, on or before the fifteenth (15th) day of each month,
Borrower shall submit to:






	 	Equity Office Properties Trust

c/o Karen Metz

Two North Riverside Plaza, Suite 2100

Chicago, Illinois 60606

Phone: (312) 466-3300

Facsimile: (312) 466-3403







     with a copy to:






	 	PNC Real Estate Finance

c/o Donna Harvey

249 Fifth Avenue, 18th Floor

Mail Stop: P1-POPP-18-3

Pittsburgh, Pennsylvania 15222

Phone: (412) 768-5048

Facsimile: (412) 768-5984







a written itemized statement, signed by Borrower (“Application for Payment”)
setting forth:





     1.     A description of the work performed, material supplied and/or costs
incurred or due for which disbursement is requested with respect to any line
item (“Item”) shown in the Disbursement Budget. Notwithstanding the amount of
any line item shown in the Disbursement Budget, Borrower may reallocate amounts
among the line items by allocating cost savings in any line item to
Contingency, and amounts from the Contingency to any line item with a cost
overrun; provided, however, that the sum of (i) the Required Equity
Contribution plus (ii) the aggregate amount of all disbursements under the Loan
shall not exceed Total Forecasted Costs; and





     2.     The total amount incurred, expended and/or due for each requested Item
less prior disbursements.





Each Application for Payment by Borrower shall constitute a representation and
warranty by Borrower that Borrower is in compliance with all the conditions
precedent to a disbursement specified in this Agreement. With respect to
Borrower’s remaking of the




 







 



representations and warranties set forth in Article
6 of this Agreement on the date of submission of each Application for Payment,
to the extent circumstances have changed for reasons beyond the reasonable
control of Borrower such that Borrower must qualify such representations and
warranties as of the date of delivery of any such Application for Payment, such
qualification, to the extent it renders the applicable representation
materially untrue or breaches the applicable warranty, shall merely be a
failure of condition to Lender’s obligation to disburse funds under the
provisions of this Exhibit D, as opposed to constituting an Event of Default.





     B.     Lender’s Right to Condition Disbursements. Lender shall have the right
to condition any disbursement upon Lender’s receipt in the appropriate form of
the following submissions and Lender’s reasonable determination that such
submissions comply with the requirements set forth below:





     1.     The Application for Payment and an itemized requisition for
payment;





     2.     Bills, invoices, documents of title, vouchers, statements, receipts and
any other documents evidencing the total amount expended, incurred or due for
any requested Items;





     3.     Evidence of Borrower’s use of a lien release, joint check and voucher
system acceptable to Lender for payments or disbursements to any contractor,
subcontractor, materialman, supplier or lien claimant;





     4.     Architect’s, inspector’s and/or engineer’s periodic certifications of
the percentage and/or stage of construction that has been completed and its
conformance to the Plans and Specifications and governmental requirements based
upon any such architect’s, inspector’s and/or engineer’s periodic physical
inspections of the Property and Improvements;





     5.     Waivers and releases of any mechanics’ lien, stop notice claim,
equitable lien claim or other lien claim rights (conditional for costs to be
paid from the current Application for Payment, and unconditional for all prior
costs which have been disbursed by Lender by the twenty-fifth (25th) day of the
immediately preceding month or were to have been paid from Borrower’s own funds
under the Disbursement Budget);





     6.     Reasonable evidence of Borrower’s compliance with the provisions of the
Sections of this Agreement entitled Construction and Authority/Enforceability.
Where this Agreement calls for the delivery of a certificate as evidence of
any action, such certificate, if factually accurate, shall constitute such
reasonable evidence;





     7.     A written release executed by any surety to whom Lender has issued or
will issue a set-aside letter and/or any public entity or agency which is a
beneficiary under any




Exhibit D — Page 2







 



instrument of credit, set-aside letter or standby letter
of credit which Lender has issued or will issue with respect to the Loan;





     8.     For final payment only with respect all or any separate, independent
portion of the Improvements, valid, recorded Notice(s) of Completion for the
Improvements or any portions of the Improvements for which Notice(s) of
Completion may be recorded under applicable law, and final payment lien release
waivers (conditional with respect to costs to be paid from such final payment,
and unconditional for all other costs);





     9.     Certificate of Substantial Completion from the Architect and Engineer,
if any, prior to the final retention disbursement;





     10.     Any other document, requirement, evidence or information that Lender
may have reasonably requested under any provision of the Loan Documents at
least thirty (30) days prior to the Application for Payment in question; and





     11.     Except with respect to items covered under #12 and #13 below, evidence
that any goods, materials, supplies, fixtures or other work in process for
which disbursement is requested have been incorporated into the Improvements.





     12.     In the event any Application for Payment includes the cost of
materials stored at a location other than the Property (“Offsite Materials”),
each of the following: (a) evidence that the Offsite Materials have been
purchased by Borrower, have been segregated from other materials in the
facility and have been appropriately marked to indicate Borrower’s ownership
thereof and Lender’s security interest therein; and (b) evidence that the
Offsite Materials are insured as required by this Agreement.





     13.     In the event that any Application for Payment includes the cost of
materials stored on the Property (“Onsite Materials”), each of the following:
(a) evidence that the Onsite Materials have been purchased for or by Borrower;
(b) evidence that the Onsite Materials are insured as required hereunder; and
(c) evidence that the Onsite Materials are stored in an area on the Property
for which adequate security is provided against theft and vandalism.





Borrower acknowledges that this approval process may result in disbursement
delays and Borrower hereby consents to all such delays; provided, however, that
Lender shall use commercially reasonable efforts to respond to all requests for
approval within the time periods designated in this Agreement.





     C.     Periodic Disbursement of Construction Costs, Site Work Costs and
Offsite Costs. As construction progresses, the amount of the retention as
provided under any construction contract to which Borrower is a party (the
“Retention”) shall be disbursed into the Account or to or for the benefit or
account of the Borrower, Property or Improvements upon Borrower’s delivery to
Lender of (1) the applicable lien releases




Exhibit D — Page 3







 



specified above in Paragraph B.8 of
this Exhibit D, (2) the applicable certificate specified above in Paragraph B.9
of this Exhibit D and (3) solely with respect to the Construction Contract, a
duly issued temporary certificate of occupancy for the Improvements and
completion of the Improvements in accordance with the Plans and Specifications.





     D.     Partial Disbursements. No disbursement shall be made for a particular
Application for Payment unless all required supporting materials are included
for Items totaling at least sixty-five percent (65%) of the total amount of
funds requested thereunder. Subject to the foregoing, to the extent that an
unconditional lien release and waiver for an Item that was included in a prior
disbursement is not delivered to Lender prior to the date that Lender approves
the subsequent disbursement, Lender may withhold from the then current approved
disbursement an amount equal to one hundred fifty percent (150%) of the amount
for the Item(s) which had been previously funded. Thereafter, such withheld
amount shall be disbursed as part of the next ensuing disbursement upon
Lender’s receipt of the missing unconditional lien release and waiver.





     E.     Timing of Disbursements. Lender shall exercise diligent and good faith
efforts to disburse funds for all approved Items in any Application for Payment
within the applicable Lender Payment Turnaround Period.





Exhibit D — Page 4







 


EXHIBIT E






LEASING PARAMETERS






     None. Project is fully leased for 13-year term. All new leases subject
to Lender’s approval.





 







 


EXHIBIT F






Certificate of Approval






     This is a Certificate of Approval, as defined in that certain Construction
Loan Agreement between WEO – Concar, LLC, a California limited liability
company, as Borrower, and Riverside Finance Company, L.L.C., as Lender, dated
as of      , 2002. All capitalized and undefined terms used in this
Certificate shall have the meanings given them in such Construction Loan
Agreement.





     Borrower hereby certifies to Lender that since the date of the immediately
preceding Certificate of Approval [or in the case of the first Certificate of
Approval, “since the date of the execution of the Loan Agreement"], the
following matters, which require the approval of Lender under the Loan
Documents, were approved by [EOP INVESTOR] or [EOP PROJECT INVESTOR] in the
following manner:




              
              
              
              
              
              
              
              
              
              , and such approval has not
been rescinded as of this date. All other matters that arose between the date
of the immediately preceding Certificate of Approval [or in the case of the
first Certificate of Approval, “since the date of the execution of the Loan
Agreement"] do not require the consent of the [EOP INVESTOR] or [EOP PROJECT
INVESTOR].




     The undersigned hereby certifies that the matters set forth above are true
and correct as of this date.






	 			
	 		 ,
	 	
	
	 	a	
			

	 	By:
			

	 	
Its:
			

	 	Date:
			











 







 


EXHIBIT G

Schedule of Pre-Closing Disbursements







	 	 	 	 	 	 	 	 	 
	Description	 	Date of Advance	 	 	Amount of Advance	 
	
	 	
	 	 	
	 
	 
	 	 	10/25/01	 	 	$	1,802,955.62	 
	 
	 	 	11/27/01	 	 	 	1,966,309.28	 
	 
	 	 	12/27/01	 	 	 	3,455,934.39	 
	 
	 	 	12/31/01	 	 	 	80,000.00	 
	RE Taxes
	 	 	01/01/02	 	 	 	13,387.81	 
	 
	 	 	01/25/02	 	 	 	2,742,725.61	 
	 
	 	 	02/26/02	 	 	 	2,700,866.75	 
	RE Taxes
	 	 	03/13/02	 	 	 	(13,387.81	)
	 
	 	 	03/26/02	 	 	 	4,275,222.40	 
	 
	 	 	04/26/02	 	 	 	3,202,734.83	 
	 
	 	 	05/24/02	 	 	 	2,670,528.80	 
	 
	 	 	06/26/02	 	 	 	1,939,036.06	 
	 
	 	
	 	 	
	 
	 
	 	 	 	 	 	 	24,836,313.74	 








 







 


TABLE OF CONTENTS







	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	Page	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	
	 	 	 	 	 
	ARTICLE 1.
	 	DEFINITIONS	 	 	 	 	 	 	1	 
	 
	 	1.1.
	 	Defined Terms	 	 	 	 	 	 	1	 
	 	1.2.
	 	Exhibits Incorporated	 	 	 	 	 	 	7	 
	 
	ARTICLE 2.
	 	LOAN	 	 	 	 	 	 	7	 
	 
	 	2.1.
	 	Loan	 	 	 	 	 	 	7	 
	 	2.2.
	 	Loan Documents	 	 	 	 	 	 	7	 
	 	2.3.
	 	Effective Date	 	 	 	 	 	 	7	 
	 	2.4.
	 	Maturity Date; Prepayment	 	 	 	 	 	 	7	 
	 	2.5.
	 	Credit for Principal Payments	 	 	 	 	 	 	7	 
	 	2.6.
	 	Full Repayment and Reconveyance	 	 	 	 	 	 	8	 
	 	2.7.
	 	Certificates of Approval	 	 	 	 	 	 	8	 
	 
	ARTICLE 3.
	 	DISBURSEMENT	 	 	 	 	 	 	8	 
	 
	 	3.1.
	 	Conditions Precedent	 	 	 	 	 	 	8	 
	 	3.2.
	 	Account, Pledge and Assignment, and Disbursement Authorization	 	 	 	 	 	 	10	 
	 	3.3.
	 	Borrower's Funds Account, Pledge and Assignment	 	 	 	 	 	 	10	 
	 	3.4.
	 	Loan Disbursements	 	 	 	 	 	 	10	 
	 	3.5.
	 	Working Capital	 	 	 	 	 	 	10	 
	 	3.6.
	 	Pre-Closing Loan Disbursements	 	 	 	 	 	 	11	 
	 
	ARTICLE 4.
	 	CONSTRUCTION	 	 	 	 	 	 	11	 
	 
	 	4.1.
	 	Commencement and Completion	 	 	 	 	 	 	11	 
	 	4.2.
	 	Commencement and Completion of Offsite Improvements	 	 	 	 	 	 	11	 
	 	4.3.
	 	Force Majeure	 	 	 	 	 	 	11	 
	 	4.4.
	 	Construction Agreement	 	 	 	 	 	 	12	 
	 	4.5.
	 	Architect's Agreement	 	 	 	 	 	 	12	 
	 	4.6.
	 	Plans and Specifications	 	 	 	 	 	 	12	 
	 	4.7.
	 	Contractor/Construction Information	 	 	 	 	 	 	13	 
	 	4.8.
	 	Prohibited Contracts	 	 	 	 	 	 	14	 
	 	4.9.
	 	Liens and Stop Notices	 	 	 	 	 	 	14	 
	 	4.10.
	 	Construction Responsibilities	 	 	 	 	 	 	14	 
	 	4.11.
	 	Assessments and Community Facilities Districts	 	 	 	 	 	 	14	 
	 	4.12.
	 	Delay	 	 	 	 	 	 	15	 
	 	4.13.
	 	Inspections	 	 	 	 	 	 	15	 
	 	4.14.
	 	Surveys	 	 	 	 	 	 	15	 



-i-








 


TABLE OF CONTENTS







	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	Page	 
	 	 	 	 	 	 	 	
	 
	ARTICLE 5.
	 	INSURANCE	 	 	15	 
	 
	 	5.1.
	 	Title Insurance	 	 	15	 
	 	5.2.
	 	Property Insurance	 	 	16	 
	 	5.3.
	 	Flood Hazard Insurance	 	 	16	 
	 	5.4.
	 	Liability Insurance	 	 	16	 
	 	5.5.
	 	General	 	 	16	 
	 
	ARTICLE 6.
	 	REPRESENTATIONS AND WARRANTIES	 	 	16	 
	 
	 	6.1.
	 	Authority/Enforceability	 	 	16	 
	 	6.2.
	 	Binding Obligations	 	 	16	 
	 	6.3.
	 	Formation and Organizational Documents	 	 	17	 
	 	6.4.
	 	No Violation	 	 	17	 
	 	6.5.
	 	Compliance with Laws	 	 	17	 
	 	6.6.
	 	Litigation	 	 	17	 
	 	6.7.
	 	Financial Condition	 	 	17	 
	 	6.8.
	 	[Deleted]	 	 	17	 
	 	6.9.
	 	Loan Proceeds and Adequacy	 	 	18	 
	 	6.10.
	 	Accuracy	 	 	18	 
	 	6.11.
	 	Tax Liability	 	 	18	 
	 	6.12.
	 	Utilities	 	 	18	 
	 	6.13.
	 	Compliance	 	 	18	 
	 	6.14.
	 	Americans With Disabilities Act Compliance	 	 	18	 
	 	6.15.
	 	Business Loan	 	 	18	 
	 
	ARTICLE 7.
	 	HAZARDOUS MATERIALS	 	 	19	 
	 
	 	7.1.
	 	Special Representations and Warranties	 	 	19	 
	 	7.2.
	 	Hazardous Materials Covenants	 	 	20	 
	 
	ARTICLE 8.
	 	SET ASIDE LETTERS	 	 	21	 
	 
	 	8.1.
	 	Set Aside Letters	 	 	21	 
	 
	ARTICLE 9.
	 	COVENANTS OF BORROWER	 	 	22	 
	 
	 	9.1.
	 	Expenses	 	 	22	 
	 	9.2.
	 	ERISA Compliance	 	 	23	 
	 	9.3.
	 	Leasing	 	 	23	 
	 	9.4.
	 	Approval of Leases	 	 	23	 
	 	9.5.
	 	Revenue to be Applied to Debt Service	 	 	23	 
	 	9.6.
	 	Subdivision Maps	 	 	23	 



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	 	 	 	 	 	 	 	 	 	 	 	Page	 
	 	 	 	 	 	 	 	 	 	 	 	
	 
	 	9.7.
	 	Further Assurances	 	 	 	 	 	 	24	 
	 	9.8.
	 	Assignment	 	 	 	 	 	 	24	 
	 	9.9.
	 	Management of Property	 	 	 	 	 	 	24	 
	 	9.10.
	 	Governing Documents	 	 	 	 	 	 	24	 
	 	9.11.
	 	WAIVER OF FIDUCIARY CLAIMS	 	 	 	 	 	 	24	 
	 
	ARTICLE 10.
	 	REPORTING COVENANTS	 	 	 	 	 	 	25	 
	 
	 	10.1.
	 	Financial Information	 	 	 	 	 	 	25	 
	 	10.2.
	 	Books and Records	 	 	 	 	 	 	26	 
	 
	ARTICLE 11.
	 	DEFAULTS AND REMEDIES	 	 	 	 	 	 	26	 
	 
	 	11.1.
	 	Default	 	 	 	 	 	 	26	 
	 	11.2.
	 	Acceleration Upon Default; Remedies	 	 	 	 	 	 	29	 
	 	11.3.
	 	Disbursements to Third Parties	 	 	 	 	 	 	29	 
	 	11.4.
	 	Lender's Completion of Construction	 	 	 	 	 	 	30	 
	 	11.5.
	 	Lender's Cessation of Construction	 	 	 	 	 	 	30	 
	 	11.6.
	 	Termination or Continuation of Development and	 	 	 	 	 	 	 	 
	 
	 	Management Agreements	 	 	 	 	 	 	30	 
	 	11.7.
	 	Repayment of Funds Advanced	 	 	 	 	 	 	30	 
	 	11.8.
	 	Rights Cumulative, No Waiver	 	 	 	 	 	 	31	 
	 
	ARTICLE 12.
	 	MISCELLANEOUS PROVISIONS	 	 	 	 	 	 	31	 
	 
	 	12.1.
	 	Indemnity	 	 	 	 	 	 	31	 
	 	12.2.
	 	Form of Documents	 	 	 	 	 	 	31	 
	 	12.3.
	 	No Third Parties Benefited	 	 	 	 	 	 	32	 
	 	12.4.
	 	Notices	 	 	 	 	 	 	32	 
	 	12.5.
	 	Attorney-in-Fact	 	 	 	 	 	 	32	 
	 	12.6.
	 	Actions	 	 	 	 	 	 	32	 
	 	12.7.
	 	Right of Contest	 	 	 	 	 	 	32	 
	 	12.8.
	 	Relationship of Parties	 	 	 	 	 	 	33	 
	 	12.9.
	 	Delay Outside Lender's Control	 	 	 	 	 	 	33	 
	 	12.10.
	 	Attorneys' Fees and Expenses; Enforcement	 	 	 	 	 	 	33	 
	 	12.11.
	 	Immediately Available Funds	 	 	 	 	 	 	33	 
	 	12.12.
	 	Lender's Consent	 	 	 	 	 	 	33	 
	 	12.13.
	 	Signs	 	 	 	 	 	 	33	 
	 	12.14.
	 	Lender's Agents	 	 	 	 	 	 	33	 
	 	12.15.
	 	Tax Service	 	 	 	 	 	 	34	 
	 	12.16.
	 	WAIVER OF RIGHT TO TRIAL BY JURY	 	 	 	 	 	 	34	 
	 	12.17.
	 	Severability	 	 	 	 	 	 	34	 
	 	12.18.
	 	Heirs, Successors and Assigns	 	 	 	 	 	 	34	 



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	12.19.
	 	Time	 	 	35	 
	12.20.
	 	Headings	 	 	35	 
	12.21.
	 	Governing Law	 	 	35	 
	12.22.
	 	Integration; Interpretation	 	 	35	 
	12.23.
	 	Joint and Several Liability	 	 	35	 
	12.24.
	 	Counterparts	 	 	36	 




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