Exhibit 10.1


 




 





CREDIT AGREEMENT


 


DATED AS OF DECEMBER 20, 2007


 


Among


 


ROYAL ISLAND BAHAMAS LTD.,

ROYAL ISLAND GOLF CLUB BAHAMAS LTD.

and

RIBL US BORROWER LLC


as the Borrower,


 


THE LENDERS LISTED HEREIN,


as the Lenders,


 


and


 


iSTAR FINANCIAL INC.


as Agent




 





 


$60,000,000
SECURED CREDIT FACILITY




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1. DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Certain Defined Terms

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  Defined Terms; Accounting Terms; Utilization of GAAP for Purposes of
  Calculations Under Agreement

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2. AMOUNTS AND TERMS OF LOAN COMMITMENTS AND LOANS

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Loan Commitment

  	
   

  	
  32

  
	
  2.2

  	
   

  	
  Required Payments; Termination

  	
   

  	
  32

  
	
  2.3

  	
   

  	
  Disbursement Procedures for Loans

  	
   

  	
  32

  
	
  2.4

  	
   

  	
  Lender Loans

  	
   

  	
  33

  
	
  2.5

  	
   

  	
  Interest on the Loans

  	
   

  	
  33

  
	
  2.6

  	
   

  	
  Fees

  	
   

  	
  33

  
	
  2.7

  	
   

  	
  Repayments and Prepayments; General Provisions Regarding Payments

  	
   

  	
  34

  
	
  2.8

  	
   

  	
  Use of Proceeds

  	
   

  	
  37

  
	
  2.9

  	
   

  	
  Deliberately Omitted

  	
   

  	
  38

  
	
  2.10

  	
   

  	
  Increased Costs; Taxes

  	
   

  	
  38

  
	
  2.11

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  40

  
	
  2.12

  	
   

  	
  Releases of Collateral

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3. CONDITIONS TO EFFECTIVENESS

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Conditions to Effectiveness on the Closing Date

  	
   

  	
  41

  
	
  3.2

  	
   

  	
  Subsequent Advances

  	
   

  	
  46

  
	
  3.3

  	
   

  	
  Conditions to Final Development Advance for Construction

  	
   

  	
  52

  
	
  3.4

  	
   

  	
  Intentionally Omitted

  	
   

  	
  53

  
	
  3.5

  	
   

  	
  Performance of Development

  	
   

  	
  53

  
	
  3.6

  	
   

  	
  Intentionally Omitted

  	
   

  	
  54

  
	
  3.7

  	
   

  	
  Other Remedies of Lender

  	
   

  	
  54

  
	
  3.8

  	
   

  	
  Protection Against Liens

  	
   

  	
  54

  
	
  3.9

  	
   

  	
  Nonliability of Agent and Lenders

  	
   

  	
  55

  
	
  3.10

  	
   

  	
  Conditions to Each Borrowing

  	
   

  	
  55

  
	
  3.11

  	
   

  	
  Conditions to Disbursements from the Company’s Operating Account

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4. REPRESENTATIONS AND WARRANTIES

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Organization and Qualification

  	
   

  	
  57

  
	
  4.2

  	
   

  	
  Power and Authority

  	
   

  	
  57

  
	
  4.3

  	
   

  	
  Legally Enforceable Agreement

  	
   

  	
  57

  
	
  4.4

  	
   

  	
  No Conflict

  	
   

  	
  57

  
	
  4.5

  	
   

  	
  Capital Structure

  	
   

  	
  58

  
	
  4.6

  	
   

  	
  Special Purpose Entity

  	
   

  	
  58

  
	
  4.7

  	
   

  	
  Corporate Names

  	
   

  	
  58

  
	
  4.8

  	
   

  	
  Business Locations; Agent for Process

  	
   

  	
  58

  
	
  4.9

  	
   

  	
  Title to Properties

  	
   

  	
  58

  



 


i

















 


	
  4.10

  	
   

  	
  Priority of Liens; UCC-1 Financing Statements

  	
   

  	
  59

  
	
  4.11

  	
   

  	
  No Subordination

  	
   

  	
  59

  
	
  4.12

  	
   

  	
  Intentionally Deleted

  	
   

  	
  59

  
	
  4.13

  	
   

  	
  Indebtedness

  	
   

  	
  59

  
	
  4.14

  	
   

  	
  Financial Condition; Projections

  	
   

  	
  59

  
	
  4.15

  	
   

  	
  Disclosure

  	
   

  	
  60

  
	
  4.16

  	
   

  	
  Solvent Financial Condition

  	
   

  	
  60

  
	
  4.17

  	
   

  	
  Surety Obligations

  	
   

  	
  60

  
	
  4.18

  	
   

  	
  Taxes

  	
   

  	
  60

  
	
  4.19

  	
   

  	
  Brokers

  	
   

  	
  61

  
	
  4.20

  	
   

  	
  Intellectual Property

  	
   

  	
  61

  
	
  4.21

  	
   

  	
  Governmental Authorization

  	
   

  	
  61

  
	
  4.22

  	
   

  	
  Compliance with Laws

  	
   

  	
  61

  
	
  4.23

  	
   

  	
  Ground Leases

  	
   

  	
  62

  
	
  4.24

  	
   

  	
  Litigation

  	
   

  	
  62

  
	
  4.25

  	
   

  	
  No Defaults

  	
   

  	
  63

  
	
  4.26

  	
   

  	
  Leases

  	
   

  	
  63

  
	
  4.27

  	
   

  	
  Employee Benefit Plans

  	
   

  	
  63

  
	
  4.28

  	
   

  	
  Labor Relations

  	
   

  	
  64

  
	
  4.29

  	
   

  	
  Not a Regulated Entity

  	
   

  	
  64

  
	
  4.30

  	
   

  	
  Margin Stock

  	
   

  	
  64

  
	
  4.31

  	
   

  	
  No Material Adverse Change

  	
   

  	
  64

  
	
  4.32

  	
   

  	
  Environmental Matters

  	
   

  	
  64

  
	
  4.33

  	
   

  	
  Material Contracts

  	
   

  	
  66

  
	
  4.34

  	
   

  	
  Utilities

  	
   

  	
  66

  
	
  4.35

  	
   

  	
  Licenses and Permits

  	
   

  	
  66

  
	
  4.36

  	
   

  	
  Entitlements

  	
   

  	
  67

  
	
  4.37

  	
   

  	
  Intentionally Deleted

  	
   

  	
  67

  
	
  4.38

  	
   

  	
  Insurance Coverage

  	
   

  	
  67

  
	
  4.39

  	
   

  	
  Master Declarations

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5. AFFIRMATIVE COVENANTS

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Visits and Inspections

  	
   

  	
  68

  
	
  5.2

  	
   

  	
  Notices

  	
   

  	
  68

  
	
  5.3

  	
   

  	
  Financial Statements and Other Reports

  	
   

  	
  69

  
	
  5.4

  	
   

  	
  Corporate Existence

  	
   

  	
  73

  
	
  5.5

  	
   

  	
  Payment of Taxes and Claims; Tax Consolidation

  	
   

  	
  73

  
	
  5.6

  	
   

  	
  Maintenance of Properties; Insurance

  	
   

  	
  73

  
	
  5.7

  	
   

  	
  Lender Meeting

  	
   

  	
  74

  
	
  5.8

  	
   

  	
  Compliance with Laws

  	
   

  	
  74

  
	
  5.9

  	
   

  	
  Environmental Compliance, Disclosure and Equator Principles

  	
   

  	
  74

  
	
  5.10

  	
   

  	
  The Borrower’s Remedial Action Regarding Hazardous Materials

  	
   

  	
  76

  
	
  5.11

  	
   

  	
  Subsidiaries

  	
   

  	
  76

  
	
  5.12

  	
   

  	
  Deliberately Omitted

  	
   

  	
  77

  
	
  5.13

  	
   

  	
  Further Assurances; Additional Real Property Collateral

  	
   

  	
  77

  
	
  5.14

  	
   

  	
  Title

  	
   

  	
  77

  
	
  5.15

  	
   

  	
  Estoppels

  	
   

  	
  78

  
	
  5.16

  	
   

  	
  SPE Covenants

  	
   

  	
  78

  
	
  5.17

  	
   

  	
  Maintenance of Entitlements

  	
   

  	
  79

  
	
  5.18

  	
   

  	
  Asset Sales

  	
   

  	
  79

  



 


ii

















 


	
  5.19

  	
   

  	
  Control

  	
   

  	
  79

  
	
  5.20

  	
   

  	
  Deliberately Omitted

  	
   

  	
  79

  
	
  5.21

  	
   

  	
  Accounts

  	
   

  	
  79

  
	
  5.22

  	
   

  	
  Development Milestones

  	
   

  	
  80

  
	
  5.23

  	
   

  	
  Maintenance of Ground Leases

  	
   

  	
  80

  
	
  5.24

  	
   

  	
  Material Contracts; Sale Leasebacks

  	
   

  	
  81

  
	
  5.25

  	
   

  	
  Use of Insurance Proceeds Upon the Occurrence of a Recovery Event

  	
   

  	
  82

  
	
  5.26

  	
   

  	
  Master Declarations

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6. NEGATIVE COVENANTS

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Indebtedness

  	
   

  	
  84

  
	
  6.2

  	
   

  	
  Liens and Related Matters

  	
   

  	
  85

  
	
  6.3

  	
   

  	
  Investments

  	
   

  	
  86

  
	
  6.4

  	
   

  	
  Contingent Obligations

  	
   

  	
  86

  
	
  6.5

  	
   

  	
  Restricted Payments

  	
   

  	
  87

  
	
  6.6

  	
   

  	
  Deliberately Omitted

  	
   

  	
  87

  
	
  6.7

  	
   

  	
  Restriction on Fundamental Changes

  	
   

  	
  87

  
	
  6.8

  	
   

  	
  Asset Sales

  	
   

  	
  87

  
	
  6.9

  	
   

  	
  Transactions with Shareholders and Affiliates

  	
   

  	
  89

  
	
  6.10

  	
   

  	
  Conduct of Business

  	
   

  	
  90

  
	
  6.11

  	
   

  	
  Amendments or Waivers of Certain Agreements

  	
   

  	
  90

  
	
  6.12

  	
   

  	
  Fiscal Year

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7. EVENTS OF DEFAULT

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Payment of Obligations

  	
   

  	
  90

  
	
  7.2

  	
   

  	
  Misrepresentations

  	
   

  	
  90

  
	
  7.3

  	
   

  	
  Breach of Certain Covenants

  	
   

  	
  90

  
	
  7.4

  	
   

  	
  Breach of Other Covenants

  	
   

  	
  90

  
	
  7.5

  	
   

  	
  Default Under Loan Documents

  	
   

  	
  91

  
	
  7.6

  	
   

  	
  Other Defaults

  	
   

  	
  91

  
	
  7.7

  	
   

  	
  Prescribed Laws

  	
   

  	
  91

  
	
  7.8

  	
   

  	
  Solvency

  	
   

  	
  91

  
	
  7.9

  	
   

  	
  Insolvency Proceedings

  	
   

  	
  91

  
	
  7.10

  	
   

  	
  Business Disruption; Condemnation

  	
   

  	
  92

  
	
  7.11

  	
   

  	
  ERISA

  	
   

  	
  92

  
	
  7.12

  	
   

  	
  Challenge to Loan Documents

  	
   

  	
  92

  
	
  7.13

  	
   

  	
  Judgment

  	
   

  	
  92

  
	
  7.14

  	
   

  	
  Change in Control

  	
   

  	
  92

  
	
  7.15

  	
   

  	
  Criminal Forfeiture

  	
   

  	
  93

  
	
  7.16

  	
   

  	
  Development Milestones

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8. AGENT

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Appointment

  	
   

  	
  93

  
	
  8.2

  	
   

  	
  Rights as a Lender

  	
   

  	
  94

  
	
  8.3

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  94

  
	
  8.4

  	
   

  	
  Reliance by the Agent

  	
   

  	
  95

  
	
  8.5

  	
   

  	
  Delegation of Duties

  	
   

  	
  95

  
	
  8.6

  	
   

  	
  Resignation of Agent

  	
   

  	
  96

  



 


iii

















 


	
  8.7

  	
   

  	
  Collateral
  Documents; Successor Agent

  	
   

  	
  96

  
	
  8.8

  	
   

  	
  Non-Reliance
  on Agent and Other Lenders

  	
   

  	
  97

  
	
  8.9

  	
   

  	
  Withholding
  Taxes

  	
   

  	
  97

  
	
  8.10

  	
   

  	
  Agent and
  Tranche B Holder

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.
   MISCELLANEOUS

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Assignments
  and Participations in Loans

  	
   

  	
  98

  
	
  9.2

  	
   

  	
  Expenses;
  Indemnity; Damage Waiver

  	
   

  	
  101

  
	
  9.3

  	
   

  	
  Right of
  Set-Off

  	
   

  	
  102

  
	
  9.4

  	
   

  	
  Sharing of
  Payments by Lenders

  	
   

  	
  103

  
	
  9.5

  	
   

  	
  Amendments
  and Waivers

  	
   

  	
  103

  
	
  9.6

  	
   

  	
  Independence
  of Covenants

  	
   

  	
  104

  
	
  9.7

  	
   

  	
  Notices

  	
   

  	
  104

  
	
  9.8

  	
   

  	
  Survival of
  Representations, Warranties and Agreements

  	
   

  	
  106

  
	
  9.9

  	
   

  	
  Failure or
  Indulgence Not Waiver; Remedies Cumulative

  	
   

  	
  106

  
	
  9.10

  	
   

  	
  Marshalling;
  Payments Set Aside

  	
   

  	
  107

  
	
  9.11

  	
   

  	
  Severability

  	
   

  	
  107

  
	
  9.12

  	
   

  	
  Obligations
  Several; Independent Nature of the Lenders’ Rights

  	
   

  	
  107

  
	
  9.13

  	
   

  	
  Maximum
  Amount

  	
   

  	
  107

  
	
  9.14

  	
   

  	
  Headings

  	
   

  	
  108

  
	
  9.15

  	
   

  	
  Applicable
  Law

  	
   

  	
  108

  
	
  9.16

  	
   

  	
  Successors
  and Assigns

  	
   

  	
  108

  
	
  9.17

  	
   

  	
  Consent to
  Jurisdiction and Service of Process

  	
   

  	
  108

  
	
  9.18

  	
   

  	
  Waiver of
  Jury Trial

  	
   

  	
  109

  
	
  9.19

  	
   

  	
  Confidentiality

  	
   

  	
  109

  
	
  9.20

  	
   

  	
  Limitation
  of Liability

  	
   

  	
  110

  
	
  9.21

  	
   

  	
  Counterparts;
  Integration; Effectiveness; Electronic Execution

  	
   

  	
  110

  
	
  9.22

  	
   

  	
  USA Patriot
  Act Notification

  	
   

  	
  110

  
	
  9.23

  	
   

  	
  Lender
  Disclosure

  	
   

  	
  111

  



 


iv

















 


APPENDIX


 


	
  Appendix A

  	
   

  	
  Applicable
  Margin

  	
   

  	
   

  



 


v

















 


SCHEDULES


 


	
  Schedule 1.1(c)

  	
   

  	
  Initial
  Amounts of Loan Commitments

  
	
  Schedule 1.1(d)

  	
   

  	
  Permitted
  Equipment Financing

  
	
  Schedule 1.1 (e)

  	
   

  	
  List of
  Contractors

  
	
  Schedule 1.4(A)

  	
   

  	
  Plans and
  Specifications

  
	
  Schedule 1.4(C)

  	
   

  	
  Request for
  Advance

  
	
  Schedule 2.9

  	
   

  	
  List of
  Existing Accounts Payable (to be extinguished)

  
	
  Schedule 3.1D

  	
   

  	
  List of
  Required Consents & Estoppels

  
	
  Schedule 3.1F

  	
   

  	
  Real
  Property Collateral

  
	
  Schedule 3.1O

  	
   

  	
  Capital
  Structure and Ownership of Borrower

  
	
  Schedule 4.1

  	
   

  	
  Organization
  and Qualification

  
	
  Schedule 4.5

  	
   

  	
  Capital
  Stock Options

  
	
  Schedule 4.7

  	
   

  	
  Corporate
  Names

  
	
  Schedule 4.8

  	
   

  	
  Business
  Locations

  
	
  Schedule 4.9C

  	
   

  	
  Taxes
  Related to Project

  
	
  Schedule 4.17

  	
   

  	
  Surety Obligations

  
	
  Schedule 4.18

  	
   

  	
  Borrower’s
  and Subsidiaries’ EINs

  
	
  Schedule 4.19

  	
   

  	
  Brokers

  
	
  Schedule 4.20

  	
   

  	
  Intellectual
  Property

  
	
  Schedule 4.22

  	
   

  	
  Noncompliance
  with Applicable Laws

  
	
  Schedule 4.24

  	
   

  	
  Litigation

  
	
  Schedule 4.26

  	
   

  	
  Leases

  
	
  Schedule 4.27

  	
   

  	
  Employee
  Benefit Plan

  
	
  Schedule 4.28

  	
   

  	
  Labor
  Relations

  
	
  Schedule 4.32

  	
   

  	
  Environmental
  Matters

  
	
  Schedule 4.33

  	
   

  	
  Material
  Contracts

  
	
  Schedule 4.36

  	
   

  	
  List of
  Current Entitlements

  
	
  Schedule 4.38

  	
   

  	
  Insurance
  Coverage

  
	
  Schedule 4.39

  	
   

  	
  Master and
  Supplemental Declarations

  
	
  Schedule 5.11

  	
   

  	
  Borrower’s
  Subsidiaries

  
	
  Schedule 6.9

  	
   

  	
  Permitted
  Investor Sales

  
	
  Schedule 12.1

  	
   

  	
  Development
  Budget

  
	
  Schedule 12.2

  	
   

  	
  Development
  Draw Schedule

  
	
  Schedule 12.3

  	
   

  	
  Development
  Schedule

  



 


vi

















 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Legal
  Description

  
	
  Exhibit G-1

  	
   

  	
  Form of
  Bailment Letter

  
	
  Exhibit G-2

  	
   

  	
  Form of
  Bailment Letter

  



 


vii

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (this “Agreement”)
is dated as of December 20, 2007 and entered into by and among ROYAL ISLAND BAHAMAS LTD., a Bahamian company (“RIBL”) ROYAL ISLAND GOLF CLUB BAHAMAS LTD., a
Bahamian company (“RI Club”)
and RIBL US BORROWER LLC, a Delaware
limited liability company (“RIBL/US”),
jointly and severally (together with their permitted successors and assigns,
the “Borrower”), THE BANKS,
FINANCIAL INSTITUTIONS AND OTHER ENTITIES LISTED ON THE SIGNATURE PAGES HEREOF
(together with their respective successors and permitted assigns, each
individually referred to herein as a “Lender”
and collectively as the “Lenders”),
iSTAR FINANCIAL INC., a Maryland
corporation, as administrative agent, collateral agent and documentation agent
(together with its successors and assigns in such capacities, the “Agent”) for the Lenders.


 


R  E  C  I  T  A
L  S


 


A.            WHEREAS, the
Borrower desires that the Lenders extend certain loans to the Borrower
hereunder, the proceeds of which, may be used to provide bridge financing to
pay costs of a portion of the development, construction and other costs
associated with the Project, to pay fees and expenses incurred in connection
with the transactions contemplated by this Agreement, and to fund general
company and working capital needs of the Borrower; and


 


B.            WHEREAS, the Agent and the Lenders
party hereto desire to enter into this Agreement to provide for such loans to
the Borrower subject to the terms and conditions contained herein.


 


NOW,
THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, and for ten dollars and
other good and valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged, the parties hereto agree to enter into this
Credit Agreement as follows:


 


SECTION 1.


DEFINITIONS


 


1.1          Certain Defined Terms.


 


The following
terms used in this Agreement shall have the following meanings:


 


“Account Holder” means Scotiabank
(Bahamas) Ltd., The Bank of Nova Scotia, or such other financial institutions
reasonably acceptable to the Agent.


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.


 


“Agent”
has the meaning assigned to that term in the Preamble of this Agreement.  Whenever the term “Agent” is used, it is
intended to be read as “Agent as agent on behalf of the Lenders”.


 


“Agent’s Construction Consultant” means such consultant as may
be named by Agent in such capacity from time to time, and any of Agent’s
internal representatives responsible for the review of the Construction, and
design and development thereof, and compliance with the covenants set forth in
this Agreement.


 

















 


“Agent’s Consultant’s Report” means a report addressed to Agent
regarding the Plans and Specifications, Development Budget, and such other
matters pertaining to the applicable Construction (or portion thereof) as
Lender may require.


 


“Agreement”
means this Credit Agreement dated as of December 20, 2007 as it may be
amended, restated, amended and restated, supplemented or otherwise modified
from time to time.


 


“Applicable Laws”  means, collectively, all
statutes, laws, rules, regulations, ordinances, decisions, writs, judgments,
decrees, and injunctions of any Governmental Authority applicable to the
Borrower, any of its Subsidiaries, the Sponsor Guarantor, the Project or any
Collateral, or any of the other assets of the Borrower and its Subsidiaries,
whether now or hereafter enacted and in force, and all Governmental
Authorizations relating thereto.


 


“Applicable Margin”
means with respect to the applicable Tranche and the applicable period (whether
(i) from the Closing Date to the Maturity Date, or (ii) during the
Extension Period), the applicable rate margins set forth in the definition of ‘Base
Rate” below and in Appendix A attached hereto.


 


“Applicable Percentage”
means, with respect to any Lender for purposes of Section 2,
or with respect to any Lender in respect of any indemnity claim arising out of
an action or omission of the Agent under this Agreement, the percentage of the
total of the Loan Commitments and the aggregate principal amount of the Loans
represented by the respective aggregate amounts thereof held by such
Lender.  If the Loan Commitments have
been reduced to zero, the Applicable Percentages shall be determined based upon
the Loan Commitments most recently in effect, giving effect to any
assignments.  If the Loans have been paid
in full, the Applicable Percentages shall be determined based upon the principal
amounts of the Loans outstanding immediately before their payment in full,
giving effect to any assignments.


 


“Appraiser”  means
(i) Cushman & Wakefield of Georgia, Inc., or (ii) such
other independent appraisal firm selected by the Agent in consultation with
Borrower.


 


“Approved
Escrow Account” means, with respect to any Earnest
Money received by the Escrow Agent made pursuant to a Qualified Sales
Agreement, that certain escrow trust account at a commercial bank or trust
company selected by Borrower and acceptable to Agent, provided that the escrow
agent for each consummation of a Qualified Sales Agreement (the “Escrow Agent”) and such bank or
trust company shall have acknowledged and agreed in a writing that, upon the
disbursement of the Earnest Money by the Escrow Agent to or for the benefit of
the Borrower, pursuant to the terms of the applicable Qualified Sales Agreement
(in accordance with the terms of such Qualified Sales Agreement), the Earnest
Money on deposit in such escrow account pursuant to the applicable Qualified
Sales Agreement will be paid directly to the Company’s Operating Account, in
accordance with the terms and provisions of this Agreement.  The escrow account maintained with Chicago
Title Insurance Company is hereby approved by Agent as the Approved Escrow
Account, and Chicago Title Insurance Company is hereby approved as the Escrow
Agent.


 


“Approved Fund”
means any Fund or similar investment vehicle that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
an Affiliate of an entity that administers or manages a Lender.


 


“Approved Sales Price” means the
approved sales price as determined/set forth on Schedule 2.4.


 


“Architect” means an architect or
engineer, as applicable, which Architect’s Agreement has been approved by
Agent.


 


2

















 


“Architect’s Agreement” means from time
to time each agreement between Borrower and an Architect including as modified
by Change Orders, for the performance of architectural or engineering services
as the Architect of record which is responsible for sealing all plans and
drawings for its portion of Construction.


 


“Asset Sale”
means the sale, lease, sale and leaseback, assignment, conveyance, transfer or
other voluntary disposition (other than Operating Leases entered into in the
Ordinary Course of Business, Required Dedications or Specified Encumbrances) by
the Borrower or any of its Subsidiaries to any Person (other than the Loan
Parties or any other Subsidiary that may become a Loan Party) of any right or interest
in or to property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, including, without limitation, any Capital
Stock of the Borrower’s Subsidiaries.


 


“Assignment(s)” means individually and collectively, the Assignment
of Architect’s Agreement, Assignment of Civil Engineer’s Agreement, if any,
Assignment of Construction Contracts, the assignments of management agreement,
if any, the Assignment of Development Management Agreement, if any, the
assignment of trademarks, trade names and copyrights, if any, and such other
assignments from Borrower to or for the benefit of Agent, each granting a
security interest in collateral for the Loan.


 


“Assignment Agreement”
means an assignment and assumption agreement in substantially the form as may
be approved by the Agent.


 


“Assignments of Architect’s
Agreements” means all Assignments of Architect’s
Agreements from Borrower to Agent collaterally assigning each Architect’s
Agreement to Agent, and each such assignment is herein called an “Assignment of Architect’s Agreement.”


 


“Assignments
of Civil Engineer’s Agreements” means  all Assignments of Civil Engineer’s Agreements from
Borrower to Agent collaterally assigning each Civil Engineer’s Agreement to
Lender, and each such assignment is herein called an “Assignment
of Civil Engineer’s Agreement.”


 


“Assignments of Construction
Contracts” means all Assignments of Construction
Contracts from Borrower to Agent collaterally assigning each Construction
Contract to Agent, and each such assignment is herein called an “Assignment of Construction Contract.”


 


“Assignments of Development Management Agreements”
means all Assignments of Development Management Agreements from Borrower to
Agent collaterally assigning each Development Management Agreement to Agent,
and each such assignment is herein called an “Assignment
of Development Management Agreement.”


 


“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bankruptcy”, as now and
hereafter in effect, or any successor statute.


 


“Base Rate” means, as applicable: (a) with respect
to Tranche A-1, a variable rate per annum equal to sum of the LIBOR Rate, plus
five percent (5.0%) increasing or decreasing with each increase or decrease in
the LIBOR Rate (as and when the LIBOR Rate changes as described herein,
provided that the Applicable Margin shall increase from five percent (5.0%) to
seven percent (7.0%) during the Extension Period); (b) with respect to
Tranche A-2, a variable rate per annum equal to the sum of the LIBOR Rate, plus
six and one-half percent (6.5%), increasing or decreasing with each increase or
decrease in the LIBOR Rate (as and when such LIBOR Rate changes as described
herein, provided that the Applicable Margin shall increase from six and
one-half percent (6.5%) to eight and one-half percent (8.5%) during the
Extension Period); and (c) with respect to Tranche B, a variable rate per
annum equal to the sum of the LIBOR Rate, plus eight percent (8.0%) increasing
or decreasing with each increase or decrease in the 


 


3

















 


LIBOR Rate (as and when the LIBOR Rate
changes, as described herein, provided that the Applicable Margin shall
increase from eight percent (8.0%) to ten percent (10.0%) during the Extension
Period.  Additionally, the LIBOR Rate
shall never be less than the LIBOR Rate established at the Closing Date for the
first Interest Period).


 


“Behringer” means Behringer Harvard RI Lender, LLC, a
Delaware limited liability company.


 


“Borrower”  means
individually and collectively, jointly and severally, RIBL, RI Club and
RIBL/US.


 


“Borrower Pension Plan”  means any pension plan, as
defined in Section 3(2) of ERISA, other than a Pension Plan or
Multiemployer Plan, which is intended to be qualified under Section 401(a) of
the Internal Revenue Code and which is, or was within the past six years,
maintained or contributed to by Borrower or its Subsidiaries.


 


“Borrower’s Knowledge”  shall mean the actual
knowledge, after due inquiry, of the Responsible Officers of the Borrower.


 


“Borrowing” means all Loans made on
the same date.


 


“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City or London, England, are authorized or required by law to
close.


 


“Capital Lease”
means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is
or should be accounted for as a capital lease on the balance sheet of that
Person.


 


“Capital Stock”
means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation), including, without
limitation, common stock, preferred stock, partnership interests (general and
limited) and membership interests, and any and all warrants, rights or options
to purchase or other arrangements or rights to acquire any of the
foregoing.  It is agreed that golf course
memberships and marina memberships do not constitute Capital Stock.


 


“Cash”
means all monetary items treated as cash in accordance with GAAP, consistently
applied.


 


“Cash Collateral” means the Cash
and/or Cash Equivalents held in the Company’s Operating Account.


 


“Cash EBITDA”  means
the sum during any period, without duplication, of (i) Net Cash from
Project Sales, plus (ii) Net Cash from Operations, plus (iii) any
interest earned on Cash held by the Borrower or any of its Subsidiaries and
invested in Cash Equivalents (including interest earned on funds held in the
Company’s Operating Account).


 


“Cash Equivalents”
means (a) marketable securities issued or directly and unconditionally
guaranteed by the United States Government or issued by any agency thereof and
backed by the full faith and credit of the United States, in each case maturing
within one year from the date of acquisition thereof; (b) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having the highest rating obtainable from either S&P or
Moody’s; (c) commercial paper maturing no more than one year from the date
of creation thereof and, 


 


4

















 


at the time of acquisition, having a rating of at least A-1 from
S&P or at least P-1 from Moody’s; (d) certificates of deposit or
bankers’ acceptances maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having a rating of at least A-1 from
S&P or at least P-1 from Moody’s, issued by any Lender or any commercial
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia having unimpaired capital and surplus of
not less than $500,000,000 (each Lender and each such commercial bank being
herein called a “Cash Equivalent Bank”); (e) money
market funds administered by the Account Holder with a rating of at least AAA
from S&P, and (f) Eurodollar time deposits having a maturity of less
than one year purchased directly from any Cash Equivalent Bank (provided such
deposit is with such bank or any other Cash Equivalent Bank).


 


“Cash From Project Sales” means, with
respect to Borrower and its Subsidiaries, for any period and without
duplication, (a) Cash Proceeds received during such period attributable to
real estate transactions which occurred during or prior to such period as
either (i) a sale or conveyance of real property (including any Permitted
Collateral Asset Sale), (ii) an option for the purchase of real property,
or (iii) a transfer of real property (i.e., title has been transferred)
that would be recognized as a sale of real property for GAAP purposes if a
sufficient Cash payment at the closing of such sale had been received on
account of such transfer (all amounts described in (i) through (iii) above
included only if the Cash received with respect such transaction is
nonrefundable); (b) principal and interest collected in Cash on
receivables arising from real estate transactions; (c) deposits or Cash
previously received in connection with a transaction described in (a)(i) through
(iii) above which was previously refundable, but became nonrefundable during
the current period; provided that any deposits received by Borrower
prior to the closing of any Asset Sale shall be deemed to be Cash from Project
Sales only upon the closing of such Asset Sale or, if no such closing occurs
and Borrower is entitled to retain such deposit, as of the date on which
Borrower is so entitled; and (d) Cash Proceeds received from sales of golf
and club memberships and marina memberships relating to the Project less
(e) Permitted Transaction Costs properly allocable to such transactions.  For purposes of the foregoing, the sale of
the Capital Stock of any Subsidiaries (to the extent permitted by this
Agreement) that own any Real Property Collateral shall be treated as a sale of
such Real Property Collateral.


 


“Cash Proceeds”
means, with respect to any Asset Sale, Cash payments (including any Cash
received by way of deferred payment pursuant to, or monetization of, a note
receivable or otherwise, but only as and when so received) received from such
Asset Sale.


 


“Change in Law”
means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation
or treaty by any Governmental Authority, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (having the force of law) by any Governmental
Authority.


 


“Change of Control”
means any breach of the covenant contained in Section 5.19.


 


“Change Order”
means any amendment, waiver, or modification to the Plans and Specifications,
any Construction Contract, any Architect’s Agreement, any Civil Engineer’s
Agreement, any Development Management Agreement, any of the Entitlements or the
Development Budget which has been approved in writing by Agent; provided,
however, that no Agent approval is required for any Change Order which is a
Permitted Construction Change Order.


 


“Civil Engineer” means a civil
engineer which has entered into a Civil Engineer’s Agreement have been approved
by Agent.


 


5

















 


“Civil
Engineer’s Agreement” means from time to time each agreement between Borrower and a Civil
Engineer, providing for compensation for civil engineering services as the
engineer of record which is responsible for sealing all plans and drawings for
its portion of the Construction.


 


“Cleanup”
means all actions required under Applicable Laws affecting Borrower or the
Project to:  (a) cleanup, remove,
treat or remediate Hazardous Materials in the indoor or outdoor environment; (b) prevent
the Release of Hazardous Materials so that they do not migrate, endanger or
threaten public health or welfare or the physical condition of the Project or
any adjacent real property (including adjacent seabed and waters); or (c) perform
pre-remedial studies and investigations and post-remedial monitoring and care.


 


“Closing Date”
means such date on or prior to December 20, 2007, on which the conditions
to effectiveness set forth in Section 3.1 are satisfied.


 


“Club Transfer Agreement” means the
Club Transfer Agreement, dated as of November 1, 2007, by and between RIBC
and RI Club.


 


“Collateral”
means all of the properties and assets in which Liens are purported to be
granted by the Collateral Documents.


 


“Collateral Assignment of Declarant’s Rights”  means the Collateral Assignment of Declarant’s Rights
executed and delivered by the declarant under the Master Declarations in favor
of the Agent for the benefit of the Lenders.


 


“Collateral Documents”
means the Security Agreement, the Mortgage, the Assignments, the Recognition
and Estoppel Agreements, the Collateral Assignment of Declarant’s Rights, the
Guaranties, the Pledge Agreement, the Environmental Indemnity and any other
documents, instruments or agreements delivered by any Loan Party, Shareholder
Pledgor, or the Sponsor Guarantor pursuant to this Agreement or any of the
other Loan Documents from time to time in order to grant, protect or perfect
liens on any assets of such Loan Party, Shareholder Pledgor, or the Sponsor
Guarantor as security for all or any of the Obligations.


 


“Company’s Operating Account” means
one or more Deposit Accounts or securities accounts to be established by the
Borrower pursuant to and in accordance with Section 3.3A, which shall at
all times be subject to a Control Agreement in favor of the Agent.


 


“Condemnation Proceeds”
has the meaning assigned to that term in Section 2.7A(ii)(c).


 


“Construction” means all labor,
materials and equipment required for the construction, equipping, fixturing and
furnishing of the Project (or any portion, including all fees, expenses and
other related soft costs thereof) all as set forth in more detail in the
Development Budget and the Plans and Specifications and any other construction,
equipping, fixturing and furnishing, including all fees, expenses and other
related soft costs approved by Agent.


 


“Construction Contract” means from
time to time each agreement between Borrower and a Contractor, including as
modified by Change Orders, for performance of the Construction, or any portion
thereof.


 


“Construction Legal Compliance”
means Borrower’s satisfaction of all of the following:  (A) (i) of the Construction (or any
portion thereof) through the applicable date of determination, has been
constructed substantially in accordance with the applicable Plans and
Specifications; and (ii) the 


 


6

















 


Construction (or any portion thereof) has been, or will be, constructed
in substantial compliance with all applicable Legal Requirements; (B) all
applicable material, Licenses and Permits required through the then-current
stage of Construction have been obtained from all appropriate Governmental
Authorities; (C) all conditions to the issuance of, and the requirements
under, all Licenses and Permits required through the then-current stage of
Construction have been satisfied; and (D) no appeals, suits or other
actions are pending or to Borrower’s knowledge threatened in writing by any
Governmental Authority which, if determined adversely to the interests of
Borrower or the Mortgaged Property, would result in the revocation, suspension
or qualification of any of such Licenses and Permits.


 


“Contingent Obligation”
means, as applied to any Person, any direct or indirect liability, contingent
or otherwise, of that Person (a) with respect to any Indebtedness, lease,
dividend or other obligation of another if the primary purpose or intent
thereof by the Person incurring the Contingent Obligation is to provide
assurance to the obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be protected
(in whole or in part) against loss in respect thereof, or (b) with respect
to any letter of credit issued for the account of that Person or as to which
that Person is otherwise liable for reimbursement of drawings.  Contingent Obligations shall include, without
limitation, (i) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the Ordinary Course of Business), co-making,
discounting with recourse or sale with recourse by such Person of the
obligation of another, (ii) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or
parties to an agreement, and (iii) any liability of such Person for the
obligation of another through any agreement (contingent or otherwise) (A) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (B) to maintain the solvency or any balance sheet item,
level of income or financial condition of another if, in the case of any
agreement described under subclauses (A) or (B) of this sentence, the
primary purpose or intent thereof is as described in the preceding
sentence.  The amount of any Contingent
Obligation shall be equal to the amount of the obligation so guaranteed or
otherwise supported or, if less, the amount to which such Contingent Obligation
is specifically limited.


 


“Contractor”
means the contractor(s) or construction manager(s) duly licensed
locally where the Land is located, which has entered into a Construction
Contract, which contractor(s) or construction manager(s) and
applicable Construction Contract have been approved by Agent and are listed on Schedule
1.1(e).


 


“Contracts” means all contracts,
agreements, warranties and representations relating to or governing the use,
occupancy, design, construction, operation, management, hotel group, name or
chain affiliation and/or guest reservation, repair and service of any other
component of the Mortgaged Property, as amended, modified or supplemented from
time to time.


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Control Agreement” means an account
control agreement in form and substance acceptable to the Agent.


 


“Debt Service” means, for any period,
all payments of interest, fees (including, inter  alia, the Exit
Fee, Origination Fee and the Non-Use Fee) and all scheduled mandatory and
voluntary prepayments of principal made during such period for all Indebtedness
of the Borrower and its Subsidiaries (including, without limitation, the
Indebtedness evidenced by the Loan Documents).


 


7

















 


“Default”
means a condition or event that, after notice or after any applicable grace
period has lapsed, or both, would constitute an Event of Default.


 


“Default Rate” means, at any time, the
per annum rate of interest equal to the Base Rate, then in effect, plus five
percent (5.0%) per annum; provided, however, that the Default Rate shall in no
event exceed the Maximum Rate.


 


“Deposit Account”
means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account
evidenced by a negotiable certificate of deposit.


 


“Development Advance” means an
advance of Loan proceeds by Agent in connection with the design, development or
Construction made pursuant to Section 3.


 


“Development Budget” means the detailed
line item budget, including all Construction, Design and Land acquisition
costs, setting forth Borrower’s estimate of all costs to be incurred in
connection with and to complete Construction. 
The Development Budget attached hereto as Schedule
12.1.  The Development
Budget covers the acquisition, development, design, construction and furnishing
and the fees, expenses and other soft costs related to the Construction of the
Project in accordance with the Plans and Specifications, the marketing of the Residential Units and
the Unimproved Lots, and including a portion of sales or brokerage commissions
and closing costs associated with the sales of such Residential Units, the
Unimproved Lots, marina slips and non-resident golf memberships, and the
development, maintenance and operation of the Project, and includes cash flow
projections for the duration of the Construction.  Except in connection with Permitted
Deviations, Permitted Construction Change Orders and updates in accordance with
Section 5.3(xi) below, all amendments to the Development Budget shall be
subject to Agent’s prior written approval. 
The Development Budget shall include any and all approved amendments and
Change Orders (including Permitted Construction Change Orders).  The Development Budget includes a line item
for each Architect’s Agreement, each Civil Engineer’s Agreement, each
Development Management Agreement, including separately itemizing the
Development Manager’s Fee applicable thereto, and each Construction
Contract.  The Development Budget
includes projections of all costs of materials, equipment, fixtures,
furnishings, personal property, labor, fees, expenses and other costs to be
incurred in the Construction, including the provision of all utilities to the
Project.  The Development Budget (and any
amendment thereto) shall, among other things, consist of the following:  (a) a description of each line item
satisfactory to Agent for the building and other improvements of the
Construction for such Construction Contract; and (b) an allocation to each
line item of a scheduled portion of the Contract price in such Construction Contract, together with a scheduled
portion of Loan proceeds to be allocated therefor from the Holdbacks listed in Section 3.2E
herein, consistent with the Development Draw Schedule.  Borrower shall have the right to update the
Development Budget in accordance with Section 5.3(xi) below, and after any
such update, “Development Budget” shall refer to the Development Budget as so
updated.


 


“Development Draw Schedule” means a
detailed projected schedule of advances, including all line items in the
Development Budget, setting forth Borrower’s estimate of such chronological
advances, which draw schedule for the Project is attached hereto as Schedule 12.2.  Agent and Borrower recognize and agree that
the Development Draw Schedule, when and as approved by Agent, is solely a means
for estimating the timing of payments and shall not be approval for any
payments which would be inconsistent with the remaining terms and conditions of
the Loan Documents.  All payments and disbursements
shall be made in accordance with the terms and conditions of the Loan Documents
(and not based on the estimates in any approved Development Draw Schedule).


 


8

















 


“Development Management Agreement” means
the Development Services Agreement dated as of May 2, 2007 between
Borrower and Development Manager, including as modified by Change Orders, for
performance of development management services for the Construction and
providing for payment of the Development Manager’s Fee.


 


“Development Manager” means Cypress
Equities I, LP, which development manager and its Development Management
Agreement have been approved by Agent.


 


“Development
Manager’s Fee” means the compensation agreed to
between Borrower and Development Manager pursuant to the Development Management
Agreement.  During the term of this
Agreement, the amount of funds actually paid to the Development Manager with
the proceeds of a Development Advance shall not exceed an amount equal to the
lesser of (i) three percent (3.0%) of construction costs and (ii) $2,000,000,
during the term of the Loan, payable, so long as no Event of Default then
exists and subject to the other terms and conditions for advances of the Loan
set forth in this Agreement to Development Manager.  The preceding sentence will not prevent the
accrual of the Development Manager’s Fee to the extent that it exceeds the
amount permitted to be actually paid or the payment of the Development Manager’s
Fee from sources other than a Development Advance (e.g. from proceeds from
sales of Residential Units or Unimproved Lots).


 


“Development Milestones” has the
meaning set forth in Section 5.22 hereof.


 


“Development Schedule”
means the projected schedule for the progress of development, design,
construction and equipping of the Project reflecting, among other things, the
anticipated completion dates of certain portions of Construction and/or
Development Milestones comprising particular line items in the Development
Budget, together with such supporting schedules for each line item therein as
Agent may request, all in such form and containing such details as Agent shall
require, as the same may be amended from time to time by the Borrower.  The Development Schedule for the Project is
attached hereto as Schedule 12.3.


 


“Disqualified Preferred Stock” means
preferred stock which is not mandatorily redeemable by the issuer thereof at
any time prior to the Maturity Date.


 


“Dollars”
and the sign “$” mean the lawful money of the
United States of America.


 


“Earnest Money” means the cash
earnest money deposit made by a purchaser of a Residential Unit or Unimproved
Lot in connection with a Pre-Sold Qualified Sales Agreement.


 


“Eligible Assignee”
means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund, (d) a commercial bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at least
$250,000,000; (e) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having a
combined capital and surplus of at least $250,000,000; (f) a commercial
bank organized under the laws of any other country that is a member of the OECD
or has concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow or a political
subdivision of any such country, and having a combined capital and surplus of
at least $250,000,000, so long as such bank is acting through a branch or
agency located in the United States; (g) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise holding commercial loans in the ordinary course of its business and
having a combined capital and surplus of at least $250,000,000 or an Approved
Fund thereof and (h) any other Person (other than a natural person)
approved by the Requisite Lenders (such approval not to be unreasonably
withheld or delayed) and so long as no Default or Event of Default has occurred



 


9

















 


and is continuing, approved by the Borrower (such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not
include the Borrower or any of its Subsidiaries.


 


“Entitlement Documents”  has the meaning assigned to that term in Section 4.36.


 


“Entitlements” shall mean those
certain Governmental Authorizations which are required to be obtained and
maintained (as applicable), or may be required to be obtained and maintained in
the future, including, without limitation, the Heads of Agreement, in order to
allow the completion of the development work for the Project and the sale of
the Residential Units and Unimproved Lots, all as contemplated by the Master
Plans and the Development Budget, and including, without limitation, all
Governmental Authorizations necessary to permit the legal subdivision and sale
of the Residential Units and Unimproved Lots (to the extent the same are to be
legally subdivided to achieve the Development Budget) and the development of
the Residential Units, the Hotel, the Golf Course, the Spa and the Marina as
well as completion of the Infrastructure and all applicable earthwork, grading,
improvements, equipment, drainage, storm water and sewer systems, roadways and
other work, utilities, labor or materials required to be furnished or actions
to be taken by or in connection with the Heads of Agreement or the amending,
modifying, maintaining and perpetuating all of the foregoing, and the
documents, agreements and instruments relating thereto.  The Entitlements currently in effect with
respect to the Real Property Collateral are set forth in the Heads of Agreement.


 


“Environmental Claim”
means any claim, action, investigation or written notice by any Person alleging
potential liability (including, without limitation, potential liability for
investigatory costs, Cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (a) the presence, or Release of any
Hazardous Materials at any location, whether or not owned, leased or operated
by the Borrower or any of its Subsidiaries, or (b) circumstances forming
the basis of any violation, or alleged violation, of any Environmental Law.


 


“Environmental Impact
Assessment” means, (i) the “Royal Island Environmental
Impact Assessment,” prepared by Applied Technology & Management and
dated September 2006; (ii) the “Baseline Ecological Report,” prepared
by Turrell & Associates, Inc. and dated April 2007; and (iii) any
future Environmental Impact Assessments or Equator Principles Review Reports
prepared pursuant to the terms of this Agreement.


 


“Environmental Indemnity” means the
Environmental Indemnity executed and delivered by the Sponsor Guarantor to
Agent as of the Closing Date, as amended, amended and restated, supplemented or
otherwise Modified from time to time.


 


“Environmental Laws”
means (i) all Applicable Laws relating to pollution, management or use of
natural resources, or protection of human health or the environment, including,
without limitation, laws relating to Releases or threatened Releases of
Hazardous Materials or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, Release, disposal, transport or handling
of Hazardous Materials, record keeping, notification, disclosure and reporting
requirements respecting Hazardous Materials, and (ii) the Equator
Principles.


 


“Environmental Liabilities”
means all liabilities, obligations, responsibilities, obligations to conduct
Cleanup, and all Environmental Claims pending or threatened against any Loan
Party or its Subsidiaries or against any Person whose liability for any
Environmental Claim any Loan Party or its Subsidiaries may have retained or
assumed either contractually or by operation of law, arising from (a) environmental,
health or safety conditions, (b) the presence, Release or threatened
Release of Hazardous 


 


10

















 


Materials at any location, whether or not owned, leased or operated by
the Borrower or its Subsidiaries, or (c) circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.


 


“Environmental Management Plan”
means an Environmental Management Plan to be entered into by the Borrower and
approved by the Government of the Commonwealth of The Bahamas and Agent, such
approval not to be unreasonably withheld, as the same may be amended from time
to time pursuant to the requirements of applicable Environmental Law or as
otherwise reasonably acceptable to the Agent.


 


“Equator Principles” means those certain
principles and standards (including the preamble, materials incorporated by
reference and exhibits thereto) voluntarily adopted by certain banks and other
financial institutions, all as set forth more fully at
www.equator-principles.com/principles.shtml, as the same exist on the date of
this Agreement, including without limitation, the applicable World Bank and
International Finance Corporation (“IFC”) performance standards and
environmental health and safety guidelines as referenced in Exhibits III and IV
to the Equator Principles.


 


“Equator Principles Review Report”
means a report prepared by an environmental consultant reasonably acceptable to
Agent evaluating (i) whether the Environmental Impact Report adequately
assesses each of the relevant performance standards and environmental health
and safety guidelines and (ii) to the extent not addressed in the
Environmental Assessment Report, assess the social and environmental impacts of
the Project in a manner consistent with the Equator Principles.


 


“Equity Proceeds”
means the sum of (i) Cash Proceeds from the issuance of any Capital Stock
or other equity Securities of the Borrower or any Subsidiaries of the Borrower;
less (ii) underwriting discounts and commissions and other Permitted
Transaction Costs.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any successor statute.


 


“ERISA Affiliate”
means (a) any corporation which is a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal
Revenue Code of which the Borrower is a member; (b) any trade or business
(whether or not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of
the Internal Revenue Code of which the Borrower is a member; and (c) solely
for purposes of obligations under Section 412 of the Internal Revenue Code
or under the applicable sections set forth in Section 414(t)(2) of
the Internal Revenue Code, any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of
which the Borrower, any corporation described in clause (a) above or any
trade or business described in clause (b) above is a member.


 


“ERISA Event”
means (a) a “reportable event” within the meaning of Section 4043(c) of
ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (b) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of
the Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (c) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (d) the withdrawal by the Borrower or any ERISA Affiliate from any
Pension Plan with two or more contributing sponsors or the termination of any
such Pension Plan resulting, in either case, in liability pursuant to Section 4063
or 4064 of ERISA, respectively; (e) the institution by the PBGC of
proceedings 


 


11

















 


to terminate any Pension Plan pursuant to Section 4042 of ERISA; (f) the
imposition of liability on the Borrower or any ERISA Affiliate pursuant to Section 4062(e) or
4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (g) the withdrawal by the Borrower or any ERISA Affiliate in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of
ERISA) from any Multiemployer Plan resulting in withdrawal liability pursuant
to Section 4201 of ERISA, or the receipt by the Borrower or any ERISA
Affiliate of written notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or
that it intends to terminate or has terminated under Section 4042 of ERISA
or under Section 4041A of ERISA if such termination would result in
liability to the Borrower or any ERISA Affiliate; (h) the disqualification by
the Internal Revenue Service of any Pension Plan or Borrower Pension Plan under
Section 401(a) of the Internal Revenue Code, or the determination by the
Internal Revenue Service that any trust forming part of any Pension Plan or
Borrower Plan fails to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (i) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect
to any Pension Plan.


 


“Escrow Agent”  is
defined in the definition of Approved Escrow Account.


 


“Event of Default”
means each of the events set forth in Section 7.


 


“Excess Cash Flow” means, for any
period, (a) the amount of Cash EBITDA for such period, less (b) Debt
Service for such period, less (c) an amount, if any, reasonably necessary
to ensure the Borrower maintains a Cash reserve during the course of the
succeeding Fiscal Quarter (exclusive of reserves provided for in the definition
of Net Cash from Operations, but taking into consideration the amounts
remaining in the Company’s Operating Account).


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.


 


“Excluded Taxes”
means, with respect to the Agent, any Lender, or any other recipient of any
payment to be made by or on account of any Obligation of the Borrower, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the United
States or the jurisdiction (or any political subdivision thereof) under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lender Office is
located, (b) any branch profits taxes imposed by the United States of
America or any comparable taxes imposed by any other jurisdiction described in
clause (a) hereof and (c) in the case of any Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 2.11B)
any withholding tax that (x) is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a
new Lender Office) except to the extent such Foreign lender’s assignor (or such
Foreign Lender before the designation of the new Lending Office) was entitled
to receive additional amounts or indemnity; provided, however, any withholding
tax that would not have been imposed but for the tax residency, asserted tax
residency, or any other similar tax nexus, of any of the Loan Parties, Sponsor
Guarantor, the Shareholder Pledgors any other Person making payments on behalf
of the Borrower in any jurisdiction other than The Bahamas shall not be an
Excluded Tax, or (y) is attributable to any Lender’s failure (other than
as a result of a Change in Law) to comply with Section 2.10E(v).


 


“Exit Fee” means one percent (1.0%) of
the aggregate Loan Commitments, which shall be paid pro-rata as the applicable
principal balances of Tranche A-1, Tranche A-2 and Tranche B are repaid in
accordance with the terms and provisions of this Agreement.


 


12

















 


“Extended Maturity Date” means six (6) months
after the Maturity Date or such earlier date as the Loans are prepaid in full
or accelerated.


 


“Extension Conditions” shall mean the
following conditions, all of which must be satisfied, in order for the Maturity
Date to be extended to the Extended Maturity Date:  (a) not more than one hundred twenty
(120) days nor less than thirty (30) days prior to the Maturity Date, Borrower
shall have delivered to Agent an irrevocable written notice requesting the
extension; (b) no Default or Event of Default shall have occurred and be
continuing, both at the time of the delivery of such notice and at the Maturity
Date; (c) Borrower shall have paid to Agent the Extension Fee, (d) the
aggregate, cumulative total of Sales of Unimproved Lots and Residential Units,
each represented by a Qualified Sales Agreement qualifying as Pre-Sold, as of
at least 30 days prior to the Maturity Date, shall be not less than
$60,000,000, and (e) the Development Milestones required to be met by the
Maturity Date have been met.


 


“Extension
Fee” means one percent (1.0%) of the outstanding
principal amount of the Loans on the Maturity Date.


 


“Extension Period” means the six
month Loan extension period from the Maturity Date to the Extended Maturity
Date.


 


“Facility Termination Date” means
the Maturity Date or the Extended Maturity Date, as applicable.


 


“First Priority”
means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the most senior Lien
(other than Liens listed in subclauses (a), (e) (to the extent any such
document was entered into prior to the Closing Date), (g), (i) and (k) of
the definition of Permitted Encumbrances, unless any such item is subordinate
to the Lien of the Collateral Documents either expressly pursuant to a written
agreement or otherwise by the operation of law) to which such Collateral is
subject.


 


“Fiscal Month”
means one of the 12 calendar months comprising a Fiscal Year.


 


“Fiscal Quarter”
means a fiscal quarter of a Fiscal Year.


 


“Fiscal Year”
means the fiscal year of the Borrower and its Subsidiaries ending on December 31
of each calendar year.


 


“Force Majeure” means a fire or other
casualty, labor disputes or other causes beyond Borrower’s reasonable control,
provided, however, that in no event shall a Force Majeure include any event
arising due to the lack or unavailability of funds, financing or capital
sources.


 


“Foreign Lender”
means any Lender that is organized under the laws of a jurisdiction other than
that in which the Borrower is a resident for tax purposes.  For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans or
similar extensions of credit in the ordinary course of its business.


 


“Funding and Payment Office”
means the office of the Agent located c/o iStar Asset Services Inc., 180
Glastonbury Blvd., Suite 201, Glastonbury, Connecticut 06033 (or such
office of the Agent or 


 


13

















 


any successor Agent specified by the Agent or such successor Agent in a
written notice to the Loan Parties and the Lenders).


 


“GAAP”
means, subject to the limitations on the application thereof set forth in Section 1.2,
generally accepted accounting principles, as in effect in the United States of
America and on the date of determination.


 


“Golf Course” means the 18-hole
championship Jack Nicklaus-designed golf course which will be developed as part
of the Project.


 


“Governmental Authority”
means the government of the United States of America, the Commonwealth of The
Bahamas or any other nation, or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national, quasi-governmental
bodies such as the European Union or the European Central Bank).


 


“Governmental Authorization”
means any permit, approval, license, zoning and other resolution, certificate
of occupancy, authorization, plan, directive, consent order, consent decree or
similar authorizations of or from any Governmental Authority.


 


“Gross Revenues” means the sum of
Net Cash from Project Sales plus Net Cash from Operations, from time to time.


 


“Ground Lease” means the Marina and
bluff leases to be granted to the Borrower, as amended, amended and restated,
supplemented, extended or otherwise Modified from time to time.


 


“Ground Lessor” means the landlord
upon the Ground Lease.


 


“Ground Lessor Estoppel” means any
estoppel certificates, consents or approvals of the Ground Lessor reasonably
determined by Agent to be necessary or desirable in connection with the making
of the Loan.


 


“Guaranties” means the Subsidiary
Guaranties, the Recourse Guaranty and the Non-Recourse Guaranty.


 


“Guyton” means Evelyn S. Guyton
(or at her discretion, such of the lineal members of her family collateral
family members or persons related to her directly or indirectly by blood or by
marriage) or any corporate entity, all of the shareholders of which are Evelyn
S. Guyton and/or members of her family as defined above.


 


“Hazardous Materials”
means any chemical, material or substance, the generation, use, storage,
transportation or disposal of which, or the exposure to which, is prohibited,
limited or regulated by any applicable Governmental Authority or which may or
could pose a hazard to the health and safety of the owners, occupants or any
Persons in the vicinity of any Real Property Asset or to the indoor or outdoor
environment.


 


“Heads of Agreement”
means that certain Heads of Agreement dated November 14, 2006, between
RIBL and the government of the Commonwealth of The Bahamas.


 


14

















 


“HOA Estoppel” means the estoppel
and consent agreement from the Government of the Commonwealth of The Bahamas
with respect to certain matters as requested by Agent with regard to the Heads
of Agreement, dated November 19, 2007.


 


“Holdback” has the meaning assigned
to such term in Section 3.2E.


 


“Holdback Multiplier” has the
meaning assigned to such term in Section 3.2E.


 


“Hotel” means the hotel project to
be constructed on the Real Property Collateral and to be owned by the Borrower
or any of its Subsidiaries.


 


“Improvements” means all buildings,
improvements, alterations or appurtenances now, or at any time hereafter,
located upon, in, under or above the Land or any part thereof.  The term “Improvements” also includes all
buildings, improvements, alterations or appurtenances not located on, in, under
or above the land to the extent of Borrower’s right, title and interest
therein.


 


“Indebtedness”
means, as applied to any Person, without duplication, (a) all indebtedness
for borrowed money (including, without limitation, the indebtedness permitted
under Section 6.1), (b) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP, (c) notes payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money (other than accounts payable incurred in the
Ordinary Course of Business and accrued expenses incurred in the Ordinary
Course of Business), (d) any obligation owed for all or any part of the
deferred purchase price of property or services (excluding any trade payables
incurred in the Ordinary Course of Business, but including earn-outs with
respect to any acquisition), (e) all obligations evidenced by notes, bonds
(other than performance bonds), debentures or other similar instruments, (f) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to any property or assets acquired by such
Person (even though the rights and remedies of the seller or the lender under
such agreement in the event of default are limited to repossession or sale of
such property or assets), (g) all obligations, contingent or otherwise, as
an account party under any letter of credit or under acceptance, letter of
credit or similar facilities to the extent not reflected as trade liabilities
on the balance sheet of such Person in accordance with GAAP, (h) all
obligations, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock, (i) all obligations under hedge
agreements, including, as of any date of determination, the net amounts, if
any, that would be required to be paid by such Person under hedge agreements if
such hedge agreements were terminated on such date, (j) all Contingent
Obligations in respect of obligations of the kind referred to in clauses (a) through
(j) above or in respect of the payment of dividends on the Capital Stock
of any other Person, and (k) all indebtedness secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; provided that if such Person
has not assumed such secured indebtedness that is nonrecourse to its credit,
then the amount of indebtedness of such Person pursuant to this clause (k) shall
be equal to the lesser of the amount of the secured indebtedness or the fair
market value of the assets of such Person which secure such indebtedness.


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes and Other Taxes.


 


“Indemnitee”
has the meaning assigned to that term in Section 9.2B.


 


“Infrastructure”
means all necessary water systems, sewer systems and treatment plants;
desalination/reverse osmosis plants; electrical generation, transmission and/or
distribution plants and systems; natural gas transmission and distribution
systems; incinerators and other non-sewage solid waste disposal plants and
systems; excavation and dredging projects; flood protection structures and
systems; 


 


15

















 


public dock facilities; beautification and
landscaping projects; roads and other similar utilities and public works
necessary for the development of the Project in accordance with the Development
Budget and the Heads of Agreement.


 


“Initial Appraisal”  means that certain “Appraisal of Real Property” dated as
of, June 1, 2007 (for the residential property) and June 11, 2007
(for the Hotel property) and prepared by the Appraiser for the Agent.


 


“Insolvency Proceeding” means (A) any
case, action or proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (B) any general
assignment for the benefit of creditors, composition, marshalling of assets for
creditors or other, similar arrangement in respect of its creditors generally
or any substantial portion of its creditors; in each case (A) and (B) undertaken
under U.S. Federal, State or foreign law, including the Bankruptcy Code or any
similar regime in existence in the Commonwealth of The Bahamas.


 


“Insurance Proceeds”
has the meaning assigned to that term in Section 2.7A(ii)(c).


 


“Intellectual Property”
has the meaning assigned to that term in the Security Agreement.


 


“Interest Payment Date” means the 12th
day of each calendar month, commencing on
                   12,
2008.


 


“Interest Period” means the period of time beginning on
the 12th day of a calendar month and ending on the 11th
day of the following calendar month, provided, however, the first Interest
Period shall commence on the date the Loan commences to bear interest and
continues to and includes
             11,
2008.


 


“Interest Rate” means the Base Rate or
the Default Rate, as applicable.


 


“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended to the date hereof and from
time to time hereafter and any successor statute.


 


“Investment”
means (a) any direct or indirect purchase or other acquisition by the
Borrower or any of its Subsidiaries of, or of a beneficial interest in, Capital
Stock or other Securities of any other Person, or (b) any direct or
indirect loan, advance (other than advances to employees for moving, education,
computer, entertainment and travel expenses, drawing accounts and similar
expenditures in the Ordinary Course of Business) or capital contribution by the
Borrower or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable acquired from that other Person that are
not current assets or did not arise from sales to that other Person in the
Ordinary Course of Business.  The amount
of any Investment shall be the original cost of such Investment plus the cost
of all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.


 


“Land” means the real estate
comprising the Mortgaged Property, as more specifically described in the
Mortgage including all oil, gas and mineral rights, oil, gas and minerals
(whether before or after extraction), easements, appurtenances, water rights,
water stock, rights in and to streets, roads and highways (whether before or
after vacation thereof), hereditaments and privilege relating, in any manner
whatsoever, to the Land.  The Land is
legally described on Exhibit A.


 


16

















 


“Lender”
and “Lenders” means the Persons identified as “Lenders”
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to Section 9.1; provided that
the term “Lenders”, when used in the context of a particular Loan Commitment
shall mean the Lender having that Loan Commitment.


 


“Lender Group” has the meaning
assigned to that term in Section 9.23.


 


“Lender Office”
means, as to any Lender, the office or offices of such Lender as indicated on
Lender’s signature page hereto, and the office or offices of such Lender
that the Agent notifies the Borrower promptly but no later than two days after
the Closing Date, or such other office or offices as such Lender may from time
to time designate to the Borrower and the Agent.


 


“LIBOR Rate” or “London Interbank Offered Rate” means a
floating interest rate per annum (rounded upwards, if necessary, to the next
1/100th of 1%) equal to the London Interbank Offered Rate (LIBOR)
with a one month maturity as reported in the Money Rates column or section of The Wall Street Journal
published on the second full Business Day preceding the first day of the
applicable Interest Period.  In no event
shall the LIBOR Rate at any time be less than the LIBOR Rate established for
the first Interest Period as of the Closing Date.


 


“Licenses and Permits” means all
building permits, certificates of occupancy and other assignable governmental
permits, licenses and authorizations, including all commonwealth, and local
occupancy certificates, and other licenses, in any way applicable to the
Project or any part thereof or to the development, construction, ownership,
use, occupancy, operation, maintenance, marketing and sale of the Mortgaged
Property and/or the Residential Units or Unimproved Lots; provided, however,
that any certificates of occupancy obtained for the residential portion of the
Project may include and be applicable to more than a single Residential Unit.


 


“Lien”
means any lien, mortgage, pledge, assignment, security interest, fixed or
floating charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or deposit or
other preferential arrangement having the practical effect of any of the
foregoing.


 


“Loan or Loans” means the loans in the aggregate amount of
up to $60,000,000.00 from Lenders to Borrower as evidenced by the Notes.  The Loan shall be funded in three tranches as
set forth herein: the first tranche shall be in an amount not to exceed
$10,000,000.00 (“Tranche A-1”); the second tranche shall be in an amount
not to exceed $10,000,000.00 (“Tranche A-2”); and the third tranche shall be in amount
not to exceed $40,000,000.00 (“Tranche B”).


 


“Loan Borrowing Conditions” means no
Default or Event of Default shall have occurred and be continuing and the
conditions for advances set forth in Section 3 have been satisfied or
waived by Agent.


 


“Loan Commitment” means the
commitment of a Lender to make a Loan to the Borrower pursuant to Section 2.1
(including the commitment of any Eligible Assignee to participate with respect
to a Loan as part of the primary syndication).


 


“Loan Documents”
means this Agreement, the Notes and the Collateral Documents and any other
documents evidencing or securing Obligations executed on or prior to the
Closing Date or at any time thereafter.


 


“Loan Exposure” means, with respect
to any Lender at any time, the sum of its Applicable Percentage of the
outstanding principal amount of the Loans at such time.


 


17

















 


“Loan Party” or “Loan
Parties” means the Borrower and any of its
Subsidiaries who executes any of the Loan Documents.


 


“Margin Stock”
has the meaning assigned to that term in Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to time.


 


“Marina” means the Marina which will
be developed as part of the Project.


 


“Master Declarations” means any
master, general and supplemental declarations affecting the development,
operation and/or use of the Project as they may be further amended,
supplemented, amended and restated or otherwise Modified from time to time.


 


“Master Plans” means that certain Royal Island Master Plan, prepared by SB
Architects, Harris Engineers, and Moffat & Nichol, dated as of June 12,
2007.


 


“Material Adverse Effect”
means (a) a material adverse effect upon the business, operations,
properties, assets or condition (financial or otherwise) of the Borrower and
its Subsidiaries, taken as a whole, (b) the material impairment of the
ability of the Loan Parties to perform the Obligations a material adverse
effect upon the legality, validity, binding effect or enforceability against a
Loan Party or the Sponsor Guarantor of a Loan Document to which it is a party, (c) a
material adverse effect upon the value of the then remaining Real Property
Collateral, or (d) a material adverse effect upon the Entitlements that
prevent in a material respect the intended development of the Real Property
Collateral as contemplated by the Development Budget.


 


“Material Contracts”
means (a) any Contract, agreement, lease, commitment or document affecting
any portion of the collateral which has a value greater than (or contemplate
the payment of sums which exceed) (i) $250,000 for any Contract relating
to any work itemized in Section 3.2E.(iii)(1) through (6), and (ii) $500,000
for any other such Contract, or (b) any such Contract, agreement, lease,
commitment or document under which a third-party utilities provider provides
utilities necessary to serve the Project; provided, however,
Qualified Sales Agreements for the purchase of any Residential Units or
Unimproved Lots are each expressly excluded from the definition of Material
Contracts.


 


“Maturity Date” means the date that
is one (1) year after the Closing Date, or such earlier date as the Loans
are prepaid in full or accelerated.


 


“Maximum Amount”
has the meaning assigned to that term in Section 9.13A.


 


“Minimum Sales Price” means, for
each Residential Unit and Unimproved Lot, fifty percent (50.0%) of the Approved
Sales Price for such Residential Unit or Unimproved Lot, as set forth on Schedule 2.4.


 


“Modifications”  shall
mean any amendments, supplements, modifications, renewals, replacements,
consolidations, severances, substitutions and extensions of any document or
instrument from time to time; “Modify”, “Modified,” or related words shall
have meanings correlative thereto.


 


“Moody’s”  means Moody’s Investors
Service, Inc.


 


“Mortgage”
means a first lien supplemental debenture or similar documentation, executed
and delivered by any Loan Party on or after the Closing Date, with such changes
thereto as may be recommended by the Agent’s local counsel based on local laws
or customary local mortgage or deed of trust practices, as such security
instrument may be amended, restated, amended and restated,


 


18
















 


supplemented, or otherwise Modified from time to time.  “Mortgages” means all such
instruments collectively.


 


“Mortgaged Property” means the Land,
the Improvements, the Inventory, the Accounts, the General Intangibles, the
Fixtures and Personalty, the Leases, the Rents and other Gross Revenues, the
Other Property, the Proceeds, the Plans and Specifications, and all other
property of every kind and description used or useful in connection with the
ownership, occupancy, operation and maintenance of the other components of the
Mortgaged Property and all substitutions therefor, replacements and accessions
thereto, and proceeds including “proceeds” (as defined in the UCC) derived
therefrom, all as more specifically described in the Mortgage.


 


“Mortgagee Policies”  has the meaning assigned to
that term in Section 3.1F(ii).


 


“Multiemployer Plan”
means a “multiemployer plan”, as defined in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate is contributing or to which
the Borrower or any ERISA Affiliate had an obligation to contribute within the
last six years.


 


“Net Cash from Operations”  means, for any period, (i) the gross operating
revenues (not including, for the avoidance of doubt, any amounts taken into
account in determining Cash From Project Sales) actually received by the
Borrower and its Subsidiaries during such period with respect to the Hotel, the
Golf Course, the Spa, the Marina, any improvements hereafter constructed by the
Borrower or any of its Subsidiaries as a part of the Project, and any related
amenities, less (ii) all cash amounts of any kind whatsoever paid
during such period by the Borrower and its Subsidiaries (including both
operating expenses and capital expenditures) other than out of reserves
previously set aside by the Borrower and its Subsidiaries (not including,
however, Project Expenses or amounts deducted from Cash EBITDA for purposes of
determining Excess Cash Flow), less (iii) from and after the
commencement of operations at the Hotel, the Golf Course, the Marina or the
retail portion of the Project, as applicable, reserves in the amount of the
lesser of (A) actual reserves required pursuant to Third Party Operating
Agreements for the Hotel, the Marina, the Golf Course and/or the retail portion
of the Project, if any and (B)(1) with respect to the Hotel, a fixtures,
furnishings and equipment reserve in the amount of two percent (2%) of gross
revenues during the first year of operations, three percent (3%) of gross
revenues during the second year of operations and four percent (4%) of gross
revenues thereafter, (2) with respect to the Golf Course, a fixtures,
furnishings and equipment reserve in the amount of three percent (3%) of gross
revenues, (3) with respect to the retail portion of the Project, $0.15 per
square foot, and (4) with respect to the Marina, a monthly reserve in the
amount of $50,000, provided that, in each case, no such reserve amounts will be
subtracted from the calculation of Net Cash From Operations pursuant to this
subclause (iii) unless and until the applicable component of the Project
to which such reserve relates is completed and operational and, provided
further that if no such Third Party Operating Agreement exists with respect to
any of the Hotel, the Marina, the Golf Course and/or the retail portion of the
Project, then the reserves with respect to such portions of the Project shall
be assumed to be those amounts set forth in subclause (B) above.


 


“Net Cash from Project Sales” means,
for any period, (i) Cash From Project Sales realized during such period,
less (ii) Project Expenses incurred in such period.


 


“Non-Consenting Lender”
has the meaning assigned to that term in Section 9.5B.


 


“Non-Recourse Guaranty” means the
Non-Recourse Guaranty executed and delivered by Sponsor Guarantor on the Closing
Date, as amended, restated, amended and restated, supplemented or otherwise
Modified from time to time.


 


19

















 


“Non-Use Fee” means a fee in an
amount equal to one percent (1.0%) of the average daily unused portion of the
Loan Commitments, payable quarterly on the last Business Day of each Fiscal
Quarter.


 


“Notes”
means (a) the promissory notes of the Borrower issued to Agent, and the
promissory notes evidencing each Tranche and issued to each Lender and (b) any
promissory notes issued by the Borrower in connection with assignments of the
Loans of any Lender, as they may be amended, restated, amended and restated,
supplemented or otherwise modified from time to time.


 


“Obligations” means all obligations, liabilities
and indebtedness of every nature of each Loan Party now or from time to time
hereafter owed to the Agent, the Lenders, or any of them or their respective
Affiliates, whether direct or indirect, absolute or contingent, which may arise
out of or in connection with the Loan Documents, whether for principal,
interest or scheduled payments or payments for fees, expenses, indemnification
or otherwise.


 


“OECD”
means the Organization for Economic Co-Operation and Development.


 


“Officer’s Certificate”
means, with respect to any Person, a certificate executed on behalf of such
Person (a) if such Person is a partnership or limited liability company,
by its chairman of the Board (if an officer), chief executive officer, the
chief financial officer or treasurer of its general partner or managing member,
or other Person authorized to do so by its Organizational Documents, (b) if
such Person is a corporation, on behalf of such corporation by its chairman of
the board (if an officer) or chief executive officer, chief financial officer
or treasurer, or vice president, and (c) if such person is one of the
Borrower or a Subsidiaries of the Borrower, a Responsible Officer.


 


“Operating Lease”
means, as applied to any Person, any lease (including, without limitation, leases
that may be terminated by the lessee at any time) of any property (whether
real, personal or mixed) that is not a Capital Lease other than any such lease
under which that Person is the lessor.


 


“Ordinary Course of Business” means,
with respect to the Borrower and its Subsidiaries, the ordinary course of their
business, as related to developing the Project substantially in accordance with
the Development Budget, marketing, selling or leasing Unimproved Lots,
Residential Units (including, without limitation, the sale of multiple
Unimproved Lots and/or Residential Units in one sale transaction), time shares,
fractionals, and parcels and other portions of or interests in the Project, and
the business of owning, marketing, selling, leasing or operating any commercial
units included in the Project, and the business of owning, marketing, leasing
or operating the Hotel, the Golf Course, the Spa, the Marina and any other
improvements developed as part of the Project, and in each case, as undertaken
by the Borrower and its Subsidiaries in good faith and not for purposes of
evading any covenant or restriction in any Loan Document.


 


“Organizational Authorizations”
means, with respect to any Person, resolutions of its Board of Directors,
general partners or members of such Person, and such other Persons, groups or
committees (including, without limitation, managers and managing committees),
if any, required by the Organizational Certificate or Organizational Documents
of such Person to authorize or approve the taking of any action or the entering
into of any transaction.


 


“Organizational Certificate”
means, with respect to any Person, the certificate or articles of
incorporation, partnership or limited liability company or any other similar or
equivalent organizational, charter or constitutional certificate or document
filed with the applicable Governmental Authority in the jurisdiction of its
incorporation, organization or formation, which, if such Person is a
partnership or 


 


20

















 


limited liability company, shall include such certificates, articles or
other certificates or documents in respect of each partner or member of such
Person.


 


“Organizational Documents”
means, with respect to any Person, the by-laws, partnership agreement, limited
liability company agreement, operating agreement, management agreement or other
similar or equivalent organizational, charter or constitutional agreement or
arrangement, which, if such Person is a partnership or limited liability
company, shall include such by-laws, agreements or arrangements in respect of
each partner or member of such Person.


 


“Origination Fee” means, with respect to the Tranche A-1, the
Tranche A-2 and Tranche B, the sum of one percent (1.0%) of each of the Loan
Commitments, which shall be fully earned, due and payable on the date of the
initial disbursement of the respective Loan Commitments.


 


“Other Taxes”
means all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.


 


“Participant”
has the meaning assigned to that term in Section 9.1D.


 


“Payment
and Performance Bond” means, for each applicable
Construction Contract or each applicable subcontract of an applicable
Construction Contract, the dual or multiple obligee payment and performance
bond(s), having a coverage of ten percent (10%) (more or less) of the amount of
the Construction Contract issued by the Surety in form satisfactory to Agent
and applicable to such Construction Contract and naming Borrower as obligee,
together with any substitutions or replacements thereof that may be approved in
writing by Agent.


 


“PBGC”
means the Pension Benefit Guaranty Corporation established pursuant to Section 4002
of ERISA (or any successor thereto).


 


“Pension Plan”
means any employee pension benefit plan, as defined in Section 3(2) of
ERISA, other than a Multiemployer Plan, which is subject to Title IV of ERISA
and is, or was within the past six years, maintained or contributed to by the
Borrower or any ERISA Affiliate.


 


“Permitted Barter Transaction” means
the conveyance by Borrower or a Subsidiary (a) of one Residential Unit or
Unimproved Lot to a Person who is not an Affiliate of Borrower or officers,
directors or employees of Borrower or any of its Affiliates in exchange for
promotional services in connection with the marketing of the Project, and (b) the
conveyance by Borrower or a Subsidiary in fulfillment of certain obligations of
Borrower to Guyton arising out of the sale of Royal Island to Borrower, the
conveyance by Borrower or a Subsidiary to Guyton of (i) either (A) up
to four (4) Unimproved Lots, or (B) a parcel consisting of one or
more Unimproved Lots, not to exceed 1.5 acres, in the aggregate, and
improvements, in the nature of a single-family dwelling, on such parcel, not to
exceed 5,000 square feet, and (ii) a Golf Course membership.


 


“Permitted Bulk Sale” means the sale
by Borrower or the applicable Subsidiaries of Residential Units or Unimproved
Lots of a value equal to $25,000,000 or more in one or more bulk sales to third
parties which are not Affiliates of Borrower at fair market value, which fair
market value accounts for the sale of multiple units or lots, and for
consideration consisting solely of Cash.


 


 


21

















 


“Permitted Collateral Asset Sale”
means:


 


(a)           any
transaction (or series of transactions) constituting an arm’s length sale for
Cash at fair market value of one or more (but in no event for a value in excess
of $25,000,000) platted and legally subdivided Residential Units or Unimproved
Lots to a third party buyer in the Ordinary Course of Business pursuant to a
Qualified Sales Agreement;


 


(b)           any transaction (or
series of transactions) constituting a Permitted Bulk Sale pursuant to a
Qualified Sales Agreement;


 


(c)           any transaction (or
series of transactions) constituting an arm’s length sale for Cash at fair
market value of a portion of the Real Property Collateral pursuant to a
Permitted Retail Sale or a Permitted Utility Sale, in each case pursuant to a
Qualified Sales Agreement;


 


(d)           any Permitted Barter
Transaction or Permitted Investor Sale, in each case pursuant to a Qualified
Sales Agreement;


 


(e)           the transfer by the
RIBC of ownership of certain Real Property Collateral, upon which golf and
social facilities, including an 18-hole championship golf course and clubhouse,
and 200 wet slip marina (with dock master’s office, fuel facility and storage
boxes) will be constructed, as more particularly described in the Club Transfer
Agreement, and Personal Property (as defined in the Club Transfer Agreement) to
RI Club, in accordance with the Club Transfer Agreement; and


 


(f)            the transfer by RIBC
of ownership of the Ground Lease to RI Club.


 


“Permitted Construction Change Order”
means a Change Order for a Construction Contract entered into at a time when no
Event of Default exists which satisfies all of the following conditions: (i) each
such Change Order does not materially modify the scope, quality, functionality,
or marketability of the Project or Improvements, (ii) if such Change Order
increases the cost of the Construction, the increased cost is available to
Borrower in the Development Budget, after giving effect to Permitted
Deviations, (iii) each such Change Order does not adversely affect the
structural components of the Construction, (iv) no portion of the Change
Order deletes or reduces the Construction in any way (i.e., it is not a
deductive Change Order in whole or in part) and (v) Borrower provides a
copy of such Change Order to Agent promptly after execution of such Change
Order.


 


“Permitted Deviations” means deviations
from the Development Budget which do not result in an increase in the aggregate
Project Expenses by more than five percent (5%), provided that any such
deviation shall not result from increases in fees paid to any Affiliate of
Borrower, except as set forth in the Development Budget as of the Closing Date.


 


“Permitted Encumbrances”
means the following types of Liens:


 


(a)           Liens for taxes,
assessments or governmental charges or claims the payment of which is not, at
the time, required by Section 5.5 or otherwise delinquent;


 


(b)           Liens of landlords,
Liens of carriers, warehousemen, mechanics, vendors, contractors and
materialmen and other Liens imposed by Applicable Law (other than any such Lien
imposed pursuant to Section 401(a)(29) or 412(n) of the Internal 


 


22

















 


Revenue Code or by ERISA) incurred in the Ordinary Course of Business
for sums not yet delinquent or being Properly Contested;


 


(c)           Liens incurred or
deposits made in the Ordinary Course of Business in connection with workers”
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive, in each case,
of obligations for the payment of borrowed money or other Indebtedness);


 


(d)           any attachment or
judgment Lien with respect to a money judgment, writ, warrant of attachment or
similar process not constituting an Event of Default, so long as such Lien
could not reasonably be expected to have a Material Adverse Effect;


 


(e)           leases, subleases,
licenses and sublicenses granted by Borrower or a Subsidiary to others (in the
Ordinary Course of Business) not interfering with the Ordinary Conduct of
Business or operations of the Borrower or any of its Subsidiaries;


 


(f)            any (i) Lien
arising from any Permitted Equipment Financing, (ii) interest or title of
a lessor or sublessor under any Capital Lease permitted by Section 6.1(ii) or
any operating lease not prohibited by this Agreement, (iii) restriction or
encumbrance that the interest or title of such lessor or sublessor may be
subject to, or (iv) subordination of the interest of the lessee or
sublessee under such lease to any restriction or encumbrance referred to in the
preceding clause (iii);


 


(g)           zoning, building codes
and other Governmental Authorizations regulating the use, development and/or
occupancy of any Real Property Asset or activities conducted thereon which are
imposed by any Governmental Authority having jurisdiction over such Real
Property Asset so long as such zoning, building codes and other Governmental
Authorizations could not reasonably be expected to have a Material Adverse
Effect;


 


(i)            bankers liens and
rights of setoff with respect to customary depository arrangements entered into
in the Ordinary Course of Business; and


 


(k)           with respect to the
Real Property Collateral only, the Permitted Title Exceptions.


 


“Permitted Equipment Financing”
means, collectively, (a) the existing financing listed on Schedule 1.1(d) hereto
secured solely by furnishings, fixtures and equipment, (b) financing
obtained in the Ordinary Course of Business which is secured solely by
furnishings, fixtures and equipment acquired using the proceeds of such
financing and (c) Indebtedness under Capital Leases, all in the aggregate amount not to exceed
$5,000,000.


 


“Permitted Investor Sale” shall mean
the sale of a Residential Unit or Unimproved Lot to a direct or indirect
investor in Borrower which sale satisfies each of the requirements set forth in
clause (a) of the definition of Permitted Collateral Asset Sale except
that such transaction may be for less than fair market value or the Approved
Sales Price to the extent that Borrower reasonably determines (and Agent has
reviewed and approved) that (i) its ability to achieve the Project
projections set forth in the Development Budget will not be adversely impacted
in any material respect, and (ii) it has satisfied the 


 


23

















 


conditions set forth in the immediately succeeding sentence subclauses
of this definition.  Borrower will not (i) complete
more than one sale of a Residential Unit or Unimproved Lot to any investor
other than RILLC (or sales of Unimproved Lots consisting of more than seven (7) acres
(in the aggregate) to RILLC) at less than fair market value in reliance on this
definition unless additional sales are as a result of a “trade up” in which such
investor acquires a higher value Residential Unit or Unimproved Lot and
releases or re-conveys to Borrower any Residential Unit or Unimproved Lot
previously acquired or contracted for and which is then available for resale in
Borrower’s or its Subsidiaries’ inventory or (ii) sell any Residential
Unit or Unimproved Lot in reliance on this definition if the Cash from Project
Sales resulting from such sale will be less than the sum of (A) Borrower’s
costs incurred with respect to the acquisition, financing, development and sale
of such Residential Unit or Unimproved Lot including that portion of costs
attributable to common areas, dedicated public improvements and overhead
reasonably allocable to such Residential Unit or Unimproved Lot plus (B)
the cost of additional economic incentives such as Golf Course membership fees
not to exceed, in the aggregate for all Permitted Investor Sales,
$6,000,000.  Borrower will not complete
sales of more than sixteen (16) Residential Units and Unimproved Lots (in the
aggregate) to direct or indirect investors in Borrower and will not convey more
than an additional seven (7) acres of land consisting of Unimproved Lots
to RILLC at less than fair market value in reliance on this definition.
Schedule 6.9 sets forth the investors entitled to the benefits provided by this
definition.  Notwithstanding the
foregoing, Borrower may complete more than one sale of a Residential Unit or
Unimproved Lots to any investor who purchases more than one (1), but not more
than three (3) Residential Units or Unimproved Lots for less than fair market
value or the Approved Sales Price to the extent that Borrower reasonably
determines (and Agent has reviewed and approved) that its ability to meet the
Project projections set forth in the Development Budget will not be adversely
impacted in any material respect.


 


“Permitted Merger” means, with
respect to any Subsidiary, any merger, consolidation, reorganization,
liquidation, windup or dissolution in which such Subsidiary’s assets are
distributed or assigned to, or such Subsidiary is merged into, a Loan Party,
and with respect to RI Club, the redemption of the Class A Common Stock,
as contemplated by the Club Transfer Agreement.


 


“Permitted Retail Sale” means the
sale by Borrower or the applicable Subsidiaries of the retail components of the
Project to a third party which is not an Affiliate of Borrower in an arm’s
length sale for Cash at fair market value.


 


“Permitted Title Exceptions”  means (i) the title exceptions reflected in the
Mortgagee Policies, (ii) with respect to any Leasehold interest in any
real property, the rights, title and interest of and derived from the Lessor of
such leased real property, and (iii) any Required Dedication, regardless
of whether such Required Dedication is made before or after Closing and (iv) after
the Closing Date, (a) any title exceptions arising from the recordation of
Specified Encumbrances entered into in accordance with Section 2.12B, and (b) any
title exceptions relating to a Subordination and Non-Disturbance Agreement to
which the Collateral Agent has agreed to recordation.


 


“Permitted Transaction Costs” means
bona fide, reasonable, direct costs actually incurred by Borrower or its
Subsidiaries in connection with an Asset Sale, the issuance of debt Securities
(or incurrence of borrowed Indebtedness), or the issuance of equity, including,
without limitation, (a) transfer, sales, use and other taxes payable in
connection with such Asset Sale, (b) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any permitted
Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question and that is required to be repaid under the terms thereof as
a result of such transaction, (c) brokers” or advisors” commissions, (d) fees
and expenses of counsel, accountants and other advisors and other customary and
reasonable closing costs in connection with such transaction, (e) actual,
customary and reasonable fees charged by a third party Hotel manager and/or
third party Golf Course manager in connection with any such transaction, it 


 


24

















 


being understood and agreed that the following fees are
reasonable:  (i) with respect to the
Hotel manager, a fee of up to 4.0% on core sales and 3.0% on non-core sales
plus and incentive fee of 7% of sales made at a price in excess of a to be
determined benchmark in excess of projected sales prices, and (ii) with
respect to the Golf Course manager, 1.25% of the first $100,000,000 of “Combined
Revenues”, 2.5% of the next $300,000,000 of “Combined Revenues” and 0.5% of “Finished
Unit Revenues,” as such terms are defined in that certain Jack Nicklaus Golf
Club Design Agreement dated as of October 6, 2006, and (f) any
underwriting discounts, commitments, arrangements or similar fees.


 


“Permitted Utility Sale”
means, with respect to the reverse osmosis or electrical power plant located at
the Project, either (a) a sale of such utilities pursuant to a sale
leaseback transaction pursuant to which the Borrower retains operational
control with respect to such utility or (b) a sale of such utilities to a
third party which is not an Affiliate of Borrower in an arm’s length sale for
Cash at fair market value, provided, in each case, the Borrower shall have satisfied
the conditions set forth in Section 6.8(i) hereof.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, limited partnership, Governmental
Authority or other entity.


 


“Plans and Specifications” means the
final drawings, plans and specifications as issued for the development and
construction of each portion of Construction (as the same may be amended in
accordance with the provisions permitted by this Agreement), as applicable,
which plans and specifications and all amendments thereto shall be (i) subject
to Agent’s approval, and (ii) in accordance with all applicable Legal
Requirements.  The Plans and
Specifications issued thus far for the Project are identified in Schedule 1.4(A).


 


“Pledge Agreement” means the Pledge
Agreements executed and delivered by RIBC and the Shareholder Pledgors, in each
case, in favor of the Agent for the benefit of the Lenders as may be amended,
restated, amended and restated, supplemented or otherwise Modified from time to
time in accordance with the terms thereof and hereof.


 


“Post-Closing Endeavor Letter” means
a certain letter agreement of even date herewith between Borrower and Agent
regarding satisfaction of certain conditions after the Closing Date.


 


“Prescribed Laws”  shall mean, collectively, (a) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act), (b) Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001,
and relating to Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism, (c) the International
Emergency Economic Power Act, 50 U.S.C. §1701 et seq., and (d) all other
Legal Requirements relating to money laundering or terrorism, in each case, as
amended, restated, amended and restated supplemented or otherwise Modified from
time to time.


 


“Pre-Sold” means, when referring to
any contemplated Residential Unit or Unimproved Lot, that such Residential Unit
or Unimproved Lot is subject to a Qualified Sales Agreement with a third party
buyer and, in connection therewith, such buyer has made a non-refundable
deposit of at least twenty percent (20%) of the total purchase price under such
Qualified Sales Agreement (provided that such deposit may be subject to refund
only in the event such buyer fails to obtain the requisite alien land holdings
license if such buyer is not a Bahamian citizen) and the financing contingency
thereunder has been satisfied or waived by such buyer.


 


“Proceedings”
has the meaning assigned to that term in Section 5.3(xiii).


 


25

















 


“Project”  means
the development of improvements, inclusive of Infrastructure, Hotel
improvements, Hotel villas, Residential Units, Unimproved Lots, Spa, Golf
Course, Marina, and related amenities, on the islands known as Royal Island,
King’s Cay (also known as Rat’s Cay) and Paradise Cay (also known as Chicken
Cay) located in the Commonwealth of The Bahamas and consisting of approximately
four hundred thirty one (431) acres.


 


“Project Expenses” means, with
respect to Borrower and its Subsidiaries, for any period and without
duplication, the costs and expenses incurred by the Borrower and its
Subsidiaries in connection with the development of the Project (including,
without limitation, the construction of any Infrastructure) as contemplated in
the Development Budget including, without limitation, general and administrative
expenses, sales and marketing expenses, land development costs, development
fees, construction costs and carrying costs (consisting of taxes, insurance
costs and capital expenditures, and property owners association subsidies and
reserve funding), excluding, however, for purposes of the definition of Net
Cash from Project Sales, all costs and expenses associated with the operations
of the Hotel, Golf Course, Marina, Spa and related amenities which are included
in the calculation of Net Cash from Operations.


 


“Properly Contested”
means, with respect to any claim against a Loan Party or any Indebtedness of a
Loan Party (including any Taxes), that such claim or Indebtedness is not paid
or settled as and when such claim or Indebtedness is due or payable by reason
of such Loan Party’s bona fide dispute concerning its liability to pay same or
concerning the amount thereof provided that: (i) such claim or
Indebtedness is being properly contested in good faith by appropriate
proceedings promptly instituted and diligently conducted; (ii) such Loan
Party has established appropriate reserves as shall be required in conformity
with GAAP; (iii) the non-payment of such claim or Indebtedness pending
such contest could not reasonably be expected to have a Material Adverse
Effect; (iv) no Lien is imposed upon any of such Loan Party’s assets with
respect to such claim or Indebtedness unless such Lien is at all times junior
and subordinate in priority to the Liens in favor of the Agent (except only
with respect to Permitted Encumbrances that have priority as a matter of
Applicable Law) and enforcement of such Lien is stayed during the period prior
to the final resolution or disposition of such dispute; (v) any Lien on
any Loan Party’s assets with respect to such Claim or Indebtedness is stayed;
and (vi) if such contest is abandoned, settled or determined adversely
(in whole or in part) to such Loan Party, such Loan Party forthwith pays
such claim or Indebtedness and all penalties, interest and other amounts due in
connection therewith as and when required to be paid.


 


“Pro Rata Share”
means with respect to all payments, computations and other matters relating to
the Loans of any Lender, the percentage obtained by dividing (i) the
Loan Exposure of that Lender by (ii) the aggregate Loan Exposure of
all the Lenders; in any such case as the applicable percentage may be adjusted
by assignments permitted pursuant to Section 9.1.  The initial Pro Rata Share of each Lender is
set forth in the Register.


 


“PTO”
means the United States Patent and Trademark Office.


 


“Qualified Appraisal” means the
Initial Appraisal and any other real estate appraisal conducted in accordance
with the Uniform Standards of Professional Appraisal Practice (as promulgated
by the Appraisal Standards Board of the Appraisal Foundation) and all
requirements of Applicable Law applicable to Agent undertaken by an Appraiser,
and providing an assessment of “Total Net Value” (as defined in the Initial
Appraisal) of the remaining Real Property Collateral, the form and substance of
such appraisal to be reviewed and approved by the Agent in its reasonable
judgment.


 


“Qualified Sales Agreement”
means (i) a definitive and binding purchase agreement between the Borrower
and a third party pursuant to which such third party agrees to purchase one or
more (but in no event in excess of a value of $25,000,000) Residential Units or
Unimproved Lots for Cash and 


 


26

















 


whereby the transfer of title of the real property with respect to such
Residential Unit or Unimproved Lot shall occur only concurrently with or
subsequent to the payment by such third party of 100% of the purchase price set
forth under such purchase agreement, which Qualified Sales Agreement shall be
in a form approved by Agent in its reasonable discretion, (ii) a
definitive and binding purchase agreement between the Borrower and a third
party pursuant to which such third party agrees to purchase a portion of the
Real Property Collateral pursuant to a Permitted Bulk Sale, Permitted Utility
Sale or Permitted Retail Sale and whereby the transfer of title of the real
property with respect to such portion of the Real Property Collateral shall
occur only concurrently with or subsequent to the payment by such third party
of 100% of the purchase price set forth under such purchase agreement, which
Qualified Sales Agreement shall be in a form approved by Agent in its
reasonable discretion, and (iii) a definitive and binding purchase
agreement for a Permitted Investor Sale or Permitted Barter Transaction (except
with respect to the sale to Guyton, which is governed by the deed of the
Property to the Borrower from Guyton), which Qualified Sales Agreement shall be
in a form approved by Agent in its reasonable discretion.


 


“Real Property Asset”
means, at any time of determination, any interest (fee, leasehold or otherwise)
then owned by the Borrower in any real property.


 


“Real Property Collateral” means the
portion of the Collateral comprising a Real Property Asset.


 


“Recognition and Estoppel Agreements”
means an agreement pursuant to which a Third Party Operator or a Contractor
agrees to recognize certain rights of the Agent with regard to the Project and
consent to the Lien of the Mortgage, among other things.


 


“Recourse Guaranty” means the
Recourse Guaranty executed and delivered to Behringer by the Sponsor Guarantor
on the Closing Date, as amended, restated, amended and restated, supplemented
or otherwise modified from time to time.


 


“Recovery Event”
has the meaning assigned to that term in Section 2.7A(ii)(c).


 


“Register”
has the meaning assigned to that term in Section 9.1C.


 


“Registered Loan”
has the meaning assigned to that term in Section 9.1C.


 


“Reinvestment Notice” means a
written notice executed by a Responsible Officer and delivered to the Agent
within fifteen (15) Business Days after a Recovery Event stating that no
Default or Event of Default has occurred and is continuing, that the Borrower
intends to utilize the Insurance Proceeds or Condemnation Proceeds for purposes
of restoration, repair or replacement of the affected Real Property Collateral,
or Borrower’s furniture, fixtures and equipment, that the Borrower agrees to
pursue such repair, restoration or replacement in a diligent manner, in
compliance with all Applicable Laws and without permitting any Liens to
encumber the Real Property Collateral except those permitted by Section 6.2
hereof.


 


“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the directors,
officers, employees, agents, trustees, advisors, members, controlling persons,
successor and assigns of such Person and of such Person’s Affiliates.


 


“Release”
means any release, spill, emission, leaking, pumping, pouring, injection,
escaping, deposit, disposal, discharge, dispersal, dumping, leaching or
migration of Hazardous Materials into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
into or out of any property, 


 


27

















 


including the movement of any Hazardous Material through the air, soil,
surface water, groundwater or property.


 


“Release Instruments”
has the meaning assigned to that term in Section 2.12.


 


“Released Parcel”
has the meaning assigned to that term in Section 2.12.


 


“Request for Advance” means a
request from Borrower to Agent in connection with a request for an advance of
proceeds of the Loan in the form of Schedule 1.4(C),
accompanied by all of the following items, which request and items are subject
to the approval of Agent:  (a) currently
dated certificate from Borrower representing, warranting, and certifying to
Agent (i) that all conditions precedent to such advance set forth in the
Loan Documents, to the extent not waived in writing by Agent, have been
satisfied as required by such Loan Documents, (ii) the amount and uses of
such requested advance, and that Borrower is entitled to receive such funds
under the Loan Documents and the uses thereof (iii) that each party which
is to receive proceeds from such requested advance is entitled to the sums
being requested, all in the form and content approved by Agent; (b) Contractor’s
application and certificate for payment, in form and content approved by Agent;
(c) the requisitions for payment applicable to such Request for Advance
from subcontractors and material suppliers engaged by Contractor, in form
attached as part of Schedule 1.4(C);
(d) Architect’s certificate for payment approving Contractor’s application
and certificate for payment (referenced in clause (b) above), in form
attached as part of Schedule 1.4(C);
(e) applications and certificates of payment from all other parties
contracting with Borrower, in each case where such applications and
certificates are conditions precedent to payment, in form and content approved
by Agent; (f) certificate from Agent’s Construction Consultant confirming
that, based upon an on-site inspection of the Construction, all work and
services included in such has been completed; and (g) such other
information and documents as may be requested or required by Agent or Agent’s
Construction Consultant, if any, including certificates, inspections, invoices,
receipts, Licenses and Permits, affidavits and other documents, appropriate for
the applicable stage of Construction.


 


“Required Dedication” means a
dedication or conveyance of a portion of the Real Property Collateral (other
than a Residential Unit or Unimproved Lot) in the Ordinary Course of Business
at the direction of a Governmental Authority upon completion and approval by
the applicable Governmental Authority of final plats or as required by the
Heads of Agreement with respect to portions of the Real Property Collateral to
such Governmental Authority (or any designee of such Governmental Authority); provided
any such dedication or conveyance (individually and/or taken together will all
other such dedications and conveyances) (i) has not had and could not
reasonably be expected to have a Material Adverse Effect or (ii) has not
impaired and could not reasonably be expected to impair the Collateral Agent’s
First Priority Lien on the remaining Real Property Collateral.


 


“Requisite Lenders”
means Lenders having or holding more than 50% of the sum of the aggregate Loan
Exposure of all Lenders.


 


“Residential Unit” means each of the
150-220 dwelling units described in the Heads of Agreement to be developed as a
part of the Project, which are expected to comprise a combination of single
family homes, townhouses, loft style, villa and cluster housing; provided that
the total number of such units is no less than 150.  As of the Closing Date, no Residential Units
have been sold.


 


“Responsible Officer” means (a) if
a Person is a corporation or limited liability company organized under the laws
of the State of Texas or Delaware, the chief executive officer, chairman of the
board, president/chief operating officer, any vice president, general counsel,
chief financial officer or treasurer of a Person, but in any event, with respect
to financial matters, the chief financial officer or treasurer of such Person, (b) if
a Person is a company organized under the laws of Australia or the 


 


28

















 


Commonwealth of The Bahamas, a director or president of such Person;
and (c) if a Person is a partnership or limited partnership organized
under the laws of the State of Texas or Delaware, the general partner of such
Person.


 


“Restricted Payment” means (a) any
dividend or other distribution, direct or indirect, on account of any shares of
any class of stock (or of any other Capital Stock) of the Borrower or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in Capital Stock, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock (or of any other Capital Stock) of its, the
Borrower or any of its Subsidiaries now or hereafter outstanding, and (c) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock (or
of any other Capital Stock) of its, the Borrower or any of its Subsidiaries now
or hereafter outstanding; excluding, however, any such payments or any of the
foregoing transactions between Subsidiaries or from a Subsidiary to Borrower.


 


“Restoration Account” has the
meaning set forth for such term in Section 5.25B hereof.


 


“Rock House” means that certain
boutique hotel commonly know as the Rock House and located on Harbour Island in
the Bahamas.


 


“Schedule of Approved Sales Prices”
means the schedule of Approved Sales Prices attached hereto as Schedule 2.4, as such schedule may
be amended from time to time by Borrower with Agent’s prior written consent.


 


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


 


“Secured Parties” means the Agent and the Lenders.


 


“Securities” means any Capital
Stock, voting trust certificates, certificates of interest or participation in
any profit-sharing agreement or arrangement, bonds, debentures, notes, or other
evidences of Indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as “securities” or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.


 


“Security Agreement” means each
Security Agreement executed and delivered by any Loan Party in favor of the
Agent for the benefit of the Agent and the Lenders, with such changes thereto
as may be reasonably recommended by the Agent’s local counsel based on local
laws or customary practice, as may be amended, restated, amended and restated,
supplemented or otherwise Modified from time to time in accordance with the
terms thereof and hereof.


 


“Shareholder Pledgor” means,
collectively, Royal Island Partners, LP and Royal Island (Australia) Pty
Limited.


 


“Solvency Certificate” has the
meaning assigned to that term in Section 3.1H.


 


“Solvent” means, with respect to any
Person, that as of the date of determination both (a) (i) the then
fair saleable value of the property of such Person, sold as a going concern, is
(A) greater than the total amount of liabilities (including contingent
liabilities but excluding amounts payable under intercompany promissory notes)
of such Person and (B) not less than the amount that will be required to
pay the probable liabilities on such Person’s then existing debts as they
become absolute and matured 


 


29

















 


considering all financing alternatives and potential asset sales
reasonably available to such Person; (ii) such Person’s capital is not
unreasonably small in relation to its business or any contemplated or
undertaken transaction; and (iii) such Person does not intend to incur, or
believe (nor should it reasonably believe) that it will incur, debts beyond its
ability to pay such debts as they become due; and (b) such Person is “solvent”
within the meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount
of any contingent liability at any time shall be computed as the amount that,
in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.


 


“Specified Encumbrances” means any
easement, covenant, condition, master declarations, rights-of-way, licenses, or
other agreement or restrictions entered into or effected in the Ordinary Course
of Business in connection with the development, use, operation or management of
the Project which are not materially adversely inconsistent with the current
Development Budget.


 


“Sponsor Guarantor” means Cypress
Equities I, LP, a Texas limited partnership.


 


“Stored Materials” is defined in Section 3.2(X).


 


“Subcontracts”
means the subcontracts, if any, and any other contracts for the provisions of
labor or materials for the Construction entered into by a Contractor in
accordance with its Construction Contract.


 


“Subsidiary” means, with respect to
any Person, any corporation, partnership, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and
policies thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof, provided that in no event shall “Subsidiary” refer to RIBL
US Borrower, LLC.


 


“Subsidiary Guarantor” means, each
Subsidiary of the Borrower, and “Subsidiary Guarantors” means, collectively,
all of the foregoing.


 


“Subsidiary Guaranty” means the
Subsidiary Guaranty, executed and delivered by each of the Subsidiary
Guarantors on the Closing Date, or executed and delivered by any additional
Subsidiary Guarantors from time to time thereafter pursuant to Section 5.11,
as such Guaranty may hereafter be amended, restated, amended and restated,
supplemented or otherwise Modified from time to time.


 


“Supplemental Agent” and “Supplemental Agents” shall have the
meaning assigned to these terms in Section 8.1B.


 


“Surety”
means collectively, one or more surety companies or financial institutions
satisfactory to Agent in its sole discretion.


 


“Taxes” means all present or future
taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or
other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.


 


30

















 


“Third Party Operator” means the
primary third party operator or manager of the Hotel, Spa, Golf Course, or
Marina (excluding any separate manager of any component business segment or
amenity in any of the Hotel, Spa, Golf Course, or Marina (for example, but not
by way of limitation, a provider of fishing guide services or golf
instructional services would not be a Third Party Operator)) operations and
management services with regard to the applicable portion of the Project.


 


“Third Party Operating Agreement”
means any management, operating or other similar agreement between Borrower or
any of its Subsidiaries and any Third Party Operator, which agreement shall be
in form and substance reasonably satisfactory to the Agent.  For the avoidance of doubt, this definition
is not intended to include Operating Leases that would not otherwise be
considered Material Contracts.


 


“Title Company” means, collectively,
one or more title insurance companies reasonably satisfactory to the Agent.


 


“Tranche” or “Tranches” means
Tranche A-1, Tranche A-2 and/or Tranche B, as applicable.


 


“Tranche A-1” has the meaning set forth
in the definition of “Loan”.


 


“Tranche A-2” has the meaning set
forth in the definition of “Loan”.


 


“Tranche B” has the meaning set forth in
the definition of “Loan”.


 


“UCC” means the Uniform Commercial
Code (or any successor statute) as adopted and in force in the State of New
York or, when the laws of any other state govern the method or manner of
the perfection or enforcement of any security interest in any of the
Collateral, the Uniform Commercial Code (or any successor statute) of such
state.


 


“Unimproved Lots” means an
unimproved portion of the Real Property Collateral approved by the Master Plans
for sale for residential purposes, whether such portion is a lot as platted by
the Master Plans or whether such portion is a lot increased or decreased in
size relative to the lot as platted, in accordance with the Entitlements,
Licenses and Permits.


 


1.2          Defined Terms;
Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.


 


A.            The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, amended and restated,  supplemented or otherwise Modified (subject
to any restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Sections, Exhibits and Schedules shall be construed to
refer to Sections of, and Exhibits and Schedules to, this Agreement (unless
expressly referring to another agreement) and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all Documents, General Intangibles, Goods, Intellectual Property, Investment
Related 


 


31

















 


Property, Letter of Credit Rights, Money,
Receivables, Receivable Records, Commercial Tort Claims, Material Contracts,
and Proceeds therefrom (for purposes of this Agreement, as each such term is
defined in the Security Agreement).


 


B.            Except as otherwise expressly
provided in this Agreement, (a) all accounting terms not otherwise defined
herein shall have the meanings assigned to them in conformity with GAAP; and (b) financial
statements and other information required to be delivered by the Borrower to the
Lenders pursuant to clauses (ii) and (iii) of Section 5.3 shall
be prepared in accordance with GAAP (except, with respect to interim financial
statements, for the absence of normal year-end audit adjustments and
explanatory footnotes) as in effect at the time of such preparation (and
delivered together with the reconciliation statements provided for in Section 5.3(v)).  Calculations in connection with the
definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements of the Borrower referred to in Section 4.14A; provided
that should such accounting principles and policies change, the Borrower,
the Agent, and the Lenders shall negotiate in good faith to amend the financial
definitions and related covenants in conformity therewith.


 


SECTION 2.

AMOUNTS AND TERMS OF LOAN COMMITMENTS AND LOANS


 


2.1          Loan Commitment.


 


From and
including the date of this Agreement and prior to the Facility Termination
Date, each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make Loans to the Borrower from time to time in amounts not
to exceed in the aggregate at any one time outstanding the amount of its
respective Loan Commitment.  Principal
payments or prepayments of the Loans may not be reborrowed.  The initial amount of each of the Lender’s
Loan Commitments is set forth on Schedule 1.1(c).


 


2.2          Required Payments;
Termination.


 


Any
outstanding Loans and all other unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date.


 


2.3          Disbursement
Procedures for Loans.


 


A.            Minimum Amounts. 
Each Borrowing shall be in an aggregate amount of at least $500,000 or
an integral multiple of $100,000 in excess of that; provided that a
final Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the Loan Commitments.


 


B.            Requests for Borrowings. 
To request a Borrowing, the Borrower shall notify the Agent of such
request by submission of a properly executed and certified Request for Advance,
at least seven (7) calendar days in advance of a Borrowing, but in no
event more frequently than once per month. 
Each such request for a Loan shall be irrevocable.  Each Request for Advance shall comply with Section 3.2.


 


C.            Disbursement Procedures for Loans. 
The Agent shall disburse each Loan to be made by Lenders hereunder on
the date requested in the applicable Request for Advance by wire transfer of
immediately available funds by 4:00 p.m., New York City time, to the
account of the Borrower, as designated in the Request for Advance.  Notwithstanding anything to the contrary
contained herein, in no event shall the Agent be required to make or make
available Loans more frequently than once per month.


 


32

















 


2.4          Lender Loans.  Loans shall be funded from the Loan
Commitments on a pro-rata basis, to fund development costs of the Project, as
incurred, pursuant to the Development Budget and Section 3.2. herein.  Any Loan advances above the higher of (i) $30,000,000
and (ii) 50% of the then existing Loan Commitments, shall only be advanced
on a 2 to 1 basis, i.e. $1.00 may be advanced for every $2.00 of the aggregate,
cumulative total of the purchase prices set forth in Qualified Sales Agreements
that have closed, or if not closed, qualify as Pre-Sold.  All advances of the Loan shall be used to pay
costs in accordance with Section 3.2 herein.


 


2.5          Interest on the Loans.


 


A.            Rate of Interest.  Subject to the provisions of Section 2.10,
each Loan shall bear interest on the unpaid principal amount thereof from the
date made to maturity (whether by acceleration or otherwise) at the Interest
Rate then applicable to each Tranche.


 


B.            Post-Default
Interest.  Upon
the occurrence and during the continuation of any Event of Default, if
requested by the Requisite Lenders, the outstanding principal amount of all
Loans and, to the extent permitted by Applicable Law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code, or other applicable bankruptcy or
insolvency laws) payable upon demand at the Default Rate with respect to the
applicable Tranche.  Payment or
acceptance of the increased rates of interest provided for in this Section 2.5B
is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of the Agent or any Lender.


 


C.            Computation of
Interest. 
Interest on Loans shall be computed on the basis of a 360-day year and
for the actual number of days elapsed in the period during which it
accrues.  In computing interest on any
Loan, the date of the making of such Loan, shall be included, and the date of
payment of such Loan shall be excluded; provided  that if a Loan
is repaid on the same day on which it is made, one day’s interest shall be paid
on that Loan.


 


2.6          Fees.


 


The Borrower
agrees to pay the following fees:


 


A.            Administrative Fee.  The Borrower agrees to pay to the
Agent, for its own account, an administrative fee equal to $30,000 per annum,
payable quarterly.


 


B.            Origination Fee. 
The Borrower agrees to pay to the Agent the Origination Fee, payable as
set forth in the definition of the Origination Fee.


 


C.            Non-Use Fee. 
The Borrower agrees to pay to the Agent the Non-Use Fee, payable as set
forth in the definition of the Non-Use Fee.


 


D.            Exit Fee. 
The Borrower agrees to pay to the Agent the Exit Fee, as it becomes
payable under Section 2.7A.


 


E.             General.  All fees payable hereunder
(including, inter  alia, the fees set forth in A. through D.
above, shall be paid on the dates due, in immediately available funds, to the
Agent for distribution, in the case of fees payable under Sections 2.6B, C and
D, to the Lenders entitled thereto.  Fees
paid shall not be refundable under any circumstances.


 


33

















 


2.7          Repayments and
Prepayments; General Provisions Regarding Payments.


 


A.            Prepayments.


 


(i)            Voluntary Prepayments.


 


The Borrower
may at any time and from time to time prepay, without premium or penalty, the
Loans on any Business Day in whole or in part in an aggregate minimum amount of
$500,000 and integral multiples of $100,000 in excess of that amount or such
lesser amount as is then outstanding, in writing or by telephone, promptly
confirmed in writing to the Agent, no later than 11:00 a.m. (New York
time) at least one (1) Business Day prior to such prepayment.  The Agent will promptly notify each Lender
upon receipt of such notice from the Borrower. 
Any notice of prepayment shall be irrevocable and having been given as
aforesaid, the Loans shall become due and payable on the prepayment date
specified in such notice and in the aggregate principal amount specified
therein, provided, however that the Borrower may revoke any such
notice of prepayment if conditioned upon a refinancing as described in Section 2.7D
below.  Any voluntary prepayments
pursuant to this Section 2.7A(i) shall be applied as specified in Section 2.7B
and should include the portion of the Exit Fee to be paid.


 


(ii)           Mandatory Prepayments.


 


The Loans
shall be prepaid in the manner provided in Section 2.7B upon the
occurrence of the following circumstances:


 


(a)           Prepayments Due to Issuance of Debt. 
Concurrently with and as a condition to the closing of any transaction
pursuant to which Borrower or any of its Subsidiaries issue debt Securities or
incur additional borrowed Indebtedness (other than Indebtedness permitted under
Section 6.1), the Borrower shall prepay the Loans in an amount equal to
the sum of (i) the principal amount of such debt Securities or borrowed
Indebtedness paid or payable to the Borrower or its Subsidiaries; less (ii) Permitted
Transaction Costs, (iii) with the appropriate portion of the Exit Fee to
be paid.  Such prepayment shall not be
deemed to waive any violation of Section 6.1 hereof.


 


(b)           Prepayments Due to Issuance of Equity Securities. 
Concurrently with and as a condition to the closing of any transaction
pursuant to which the Borrower or any of its Subsidiaries receive any Equity
Proceeds, the Borrower shall prepay the Loans in an aggregate amount equal to
50% of such Equity Proceeds, except with respect to (i) Equity Proceeds
received by the Borrower from Investments made by the existing holders of the
Capital Stock in the Borrower as of the Closing Date (or from any such Person’s
Affiliates), (ii) Equity Proceeds received by the Borrower’s Subsidiaries
from Investments made by the Borrower or another of its Subsidiaries in such
Subsidiaries and permitted under Section 6.3, or (iii) other Equity
Proceeds received by the Borrower, provided, in each case, such Equity
Proceeds are used for Project Expenses and Borrower has provided an Officer’s
Certificate from a Responsible Officer of the Borrower stating that such
proceeds will be used for such purpose or to make voluntary prepayments under Section 2.7A(i).  All payments shall be accompanied by the
appropriate portion of the Exit Fee to be paid.


 


(c)           Prepayments Due to Insurance and Condemnation Proceeds. 
Except as provided in Section 5.25 hereof, no later than the
fifteenth (15th) Business Day following the date of receipt by the Borrower or
any of its Subsidiaries of any cash payments which exceeds $1,000,000
(i) under any insurance policy as a result of any damage to or loss of (a
“Casualty”) all or any portion of
the Collateral (net of actual and documented reasonable costs incurred by the


 


34

















 


Borrower
or any of its Subsidiaries in connection with adjustment and settlement
thereof, the “Insurance Proceeds”), or (ii) resulting
from the taking of assets by the power of eminent domain, condemnation or
otherwise (net of actual and documented reasonable costs incurred by the
Borrower or any of its Subsidiaries in connection with adjustment and
settlement thereof, “Condemnation Proceeds”) (any
such event resulting in the recovery of Insurance Proceeds or Condemnation
Proceeds, a “Recovery Event”), the Borrower shall prepay the
Loans in an amount equal to the Insurance Proceeds or Condemnation Proceeds, as
the case may be, received, unless, in each case, the Borrower shall have
delivered a Reinvestment Notice. 
Concurrently with any prepayment of Loans pursuant to this Section 2.7A(ii)(c),
the Borrower shall deliver to the Agent an Officer’s Certificate demonstrating
in reasonable detail the derivation of the Insurance Proceeds or Condemnation
Proceeds, as the case may be, of the correlative Recovery Event.


 


(d)           Prepayments from Excess Cash Flow. 
From and after the Maturity Date until the Extended Maturity Date
(provided that the Maturity Date has been so extended), in the event that there
shall be Excess Cash Flow with respect to any Fiscal Month, the Borrower shall,
no later than the date upon which the Borrower is required to deliver financial
statements under Section 5.3(ii) and (iii) with respect to such
Fiscal Month, prepay the Loans in an aggregate amount equal to 100% of such
Excess Cash Flow.


 


(e)           Prepayments Due to Asset Sales. 
Concurrently with the consummation of any Asset Sale (other than a
Permitted Collateral Asset Sale to the extent the proceeds thereof are required
to be taken into account in the calculation of Excess Cash Flow), the Borrower
shall prepay the Loans in an amount equal to (i) the proceeds of such
Asset Sale; less (ii) Permitted Transaction Costs plus (iii) the
amount of the Exit Fee to be paid.  Such
prepayment shall not be deemed to waive any violation of Section 6.8
hereof.


 


(iii)          No Waiver.  Nothing
contained in Section 2.7A(ii) shall be deemed to permit the Borrower
to consummate any Asset Sale unless otherwise permitted under this Agreement.


 


B.            Application of Prepayments;
Reduction of Funding Amounts.


 


Each payment
received by Agent from the Borrower with respect to the Loans shall be applied
in the following order:  First, to
the repayment of any amounts advanced by Agent in accordance with the Mortgages
or any of the Collateral Documents for insurance premiums, taxes, assessments
or for preservation or protection of the Collateral and to the payment of all
costs and expenses incurred by Agent in connection with the collection of the
Loans (including all attorneys’ fees payable hereunder); second, to the
payment of accrued and unpaid interest, including any default interest; third,
to fund any reserves or escrows required by Agent, if any, in accordance with
the terms of the Mortgages or any of the Collateral Documents; fourth,
to reduction of the outstanding principal balance of Tranche A-1 until the same
is paid in full; fifth, to reduction of the outstanding principal
balance of Tranche A-2 until Tranche A-2 has been paid in full; sixth,
to reduction of the outstanding principal balance of Tranche B  until Tranche B has been paid in full; and seventh,
to the other Obligations until the same are paid in full.  Notwithstanding the foregoing, (A) if an
Event of Default has occurred and is continuing, Agent shall apply any payments
received in accordance with the provisions of Section 2.7D regarding
application of proceeds of Collateral after an Event of Default, and (B) as
among the Lenders, such payments shall be applied in accordance with Section 2.7C(iii) and
Section 2.7D(ii) below.


 


35

















 


C.            General Provisions Regarding
Payments.


 


(i)            Manner and Time of Payment. 
All payments by the Borrower of principal, interest, fees and other
Obligations hereunder and under the Notes shall be made in same day funds and
without defense, setoff or counterclaim, free of any restriction or condition,
and delivered to the Agent not later than 1:00 pm (New York time) on the date
due at the Payment Office for the account of the Lenders; funds received by the
Agent after that time on such due date shall, at the Agent’s sole discretion,
be deemed to have been paid by the Borrower on the next succeeding Business
Day.  The Borrower hereby authorizes the
Agent to charge its account with the Agent in order to cause timely payment to
be made to the Agent of all principal, interest, fees and expenses due
hereunder (subject to sufficient funds being available in its accounts for such
purpose).  Unless the Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Agent for the account of the Lenders hereunder that the Borrower will
not make such payment, the Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Lenders severally agrees to repay to
the Agent forthwith on demand the amount so distributed to such Lender, with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Agent at the
greater of the Base Rate and a rate determined by the Agent in accordance with
banking industry rules on interbank compensation.


 


(ii)           [Reserved].


 


(iii)          Apportionment of Fee Payments. 
The aggregate Origination, Exit, Extension and Non-Use fees shall be
apportioned among all outstanding Loans to which such payments relate, in each
case proportionately to the Lenders’ respective Pro Rata Shares.  The Agent shall promptly distribute to each
Lender, at its applicable Lender Office, its Pro Rata Share of all such
payments received by the Agent when received by the Agent pursuant to Section 2.6.


 


(iv)          Payments on Business Days. 
Except if expressly provided otherwise, whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of interest hereunder
or of the commitment fees hereunder, as the case may be.


 


(v)           Notation of Payment. 
Each Lender agrees that before disposing of any Note held by it, or any
part thereof (other than by granting participations therein), that Lender will
make a notation thereon of all Loans evidenced by that Note and all principal
payments previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the making
of) a notation of any Loan made under such Note shall not limit or otherwise
affect such disposition or the obligations of the Borrower hereunder or under
such Note with respect to any Loan or any payments of principal or interest on
such Note.  In the event of Borrower’s
satisfaction and repayment in full of the Obligations hereunder, each Lender
shall surrender to Borrower any and all Notes held by it.


 


(vi)          Revocation of Prepayment Notices. 
Notwithstanding anything to the contrary contained in this Agreement,
the Borrower may rescind any notice of prepayment under Section 2.7(B) if
such prepayment would have resulted from a refinancing of the Loans, which
refinancing shall not be consummated or shall otherwise be delayed.


 


D.            Application of Proceeds of
Collateral.  Except as provided in Section 2.7A(ii) with
respect to prepayments, all proceeds received by the Agent during the continuance
of an Event of Default


 


36

















 


or as a result of exercising remedies under
the Loan Documents, in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral
Document shall be applied, as promptly as reasonably practicable to the extent
permitted by Applicable Law, by the Agent against, the applicable Secured
Obligations (as defined in such Collateral Document) in the following order of
priority:


 


(i)            to the payment of all out-of-pocket costs and expenses
of such sale, collection or other realization, including, without limitation, reasonable compensation
to the Agent and its agents and counsel, and all other reasonable
expenses, liabilities and advances made or incurred by the Agent in connection
therewith, and all amounts for which such Agent is entitled to indemnification
under such Collateral Document and all advances made by the Agent thereunder
for the account of the applicable Loan Party (excluding principal and interest
in respect to any Loans of such Loan Party), and to the payment of all
reasonable costs and expenses paid or incurred by the Agent in connection with
the exercise of any right or remedy under such Collateral Document, all in
accordance with the terms of this Agreement and such Collateral Document;


 


(ii)           thereafter, to the extent of any excess proceeds, to
the payment of all other Secured Obligations (as defined in the Security
Agreement) in accordance with the provisions of Section 2.7B; and


 


(iii)          thereafter, to the extent of any excess proceeds, to
the payment to or upon the order of such Loan Party or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


 


2.8          Use of Proceeds.


 


A.            Loans.  The proceeds of the Loans made to
the Borrower shall be applied to fund the Project Expenses to pay fees and
expenses incurred in connection with the transactions contemplated hereby, and
for general corporate and working capital needs of the Borrower in accordance
with the Development Budget subject to Permitted Deviations.


 


B.            Compliance With
Laws.  The
Borrower undertakes that no portion of the proceeds of any Loans or other
extensions of credit under this Agreement shall be used by any Loan Party in
any manner which would be illegal under, or which would cause the invalidity or
unenforceability (in each case in whole or in part) of any Loan Document under,
any Applicable Law.


 


C.            Margin Regulations.  Without limiting the generality of Sections
2.8A and B, no portion of the proceeds of any borrowing under this Agreement
shall be used by the Borrower or any of its Subsidiaries in any manner that
might cause the borrowing or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.


 


2.9          Deliberately Omitted.


 


2.10        Increased Costs; Taxes.


 


A.            Increased Costs
Generally.  If
any Change in Law shall:  (i) impose,
Modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender; or (ii) impose on any


 


37

















 


Lender or the London interbank market any
other condition, cost or expense affecting this Agreement or Base Rate Loans
hereunder made by such Lender (other than Indemnified Taxes or Other Taxes
covered by Section 2.10E and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender) and the result of any of the
foregoing set forth in subclauses (i) or (ii) shall be to increase
the cost to such Lender of making or maintaining any Loan (or of maintaining
its obligations to make any such Loan) or to increase the cost to such Lender,
or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or any other amount), then upon request
of such Lender, the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.


 


B.            Capital
Requirements.  If
any Lender determines that any Change in Law affecting such Lender or the
applicable Lender Office of such Lender or such Lender’s holding company, if
any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s capital or on the capital of such Lender’s
holding company, if any, as a consequence of this Agreement, the Loan
Commitments of such Lender or the Loans made by such Lender, to a level below
that which such Lender or such Lender’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s policies and
the policies of such Lender’s holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender’s
holding company for any such reduction suffered.


 


C.            Certificates for
Reimbursement.  A
certificate of a Lender setting forth in reasonable detail the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in Section 2.10A or 2.10B and delivered to the
Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.


 


D.            Delay in Requests.  Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s right to demand such compensation, provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section for
any increased costs incurred or reductions suffered more than six months prior
to the date that such Lender notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s intention to
claim compensation therefor (except that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


E.             Taxes.


 


(i)            Payments Free of Taxes. 
Subject to Section 2.10(E)(v) below, any and all payments by
or on account of any obligation of the Borrower or other Loan Party hereunder
or any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that if the Borrower, any Loan Party or any other Person making payments on
behalf of the Borrower or any Loan Party shall be required by Applicable Law to
deduct or withhold any Indemnified Taxes or Other Taxes from such payments,
then (a) the sum payable shall be increased as necessary so that after
making all required deductions or withholding (including deductions or
withholding applicable to additional sums payable under this Section) the Agent
or Lender receives an amount equal to the sum it would have received had no
such deductions or withholding been made, (b) the Borrower shall make or
cause to be made such deductions or withholding and (c) the Borrower shall
timely pay or cause to be paid the full amount deducted or withheld to the
relevant Governmental Authority in accordance with Applicable Law.


 


38

















 


(ii)           Payment of Other Taxes by the Borrower. 
Without limiting the provisions of paragraph (i) above, the
Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with Applicable Law.


 


(iii)          Indemnification by the Borrower. 
The Borrower shall indemnify the Agent and each Lender within twenty
(20) days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 2.10E)
paid by Agent or such Lender and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. 
A certificate stating the amount of such payment or liability and
setting forth in reasonable detail the calculation thereof delivered to the
Borrower by Agent or a Lender (with a copy to the Agent), or by the Agent on
its own behalf or on behalf of a Lender shall be conclusive absent manifest
error.


 


(iv)          Evidence of Payments. 
As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver
to the Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the
Agent.


 


(v)           Status of Lenders.  Any Lender,
if requested by the Borrower or the Agent, shall deliver documentation
prescribed by Applicable Law or reasonably requested by the Borrower or the
Agent as will enable the Borrower or the Agent to determine whether or not such
Lender is subject to withholding, backup withholding or information reporting
requirements or to qualify any such Lender for any exemption from or reduction
in the rate of any withholding, backup withholding, Indemnified Taxes or Other
Tax.  Each Lender shall deliver to the Agent
and the Borrower, at the time of closing (or if later, on or prior to the date
such Lender becomes a party hereto) and from time to time thereafter upon the
request of the Borrower or the Agent and on or prior to the expiration of the
previously delivered form, two original copies of either IRS Form W-9,
W-8BEN, W-ECI, or W-8IMY (with required attachments), as may be applicable, in
each case, properly completed and executed, as will permit such payments to be
made without any United States backup withholding.  A Lender shall not be required to deliver any
form or statement pursuant to this Section 2.11E(v) that such Foreign
Lender is not legally able to deliver.


 


(vi)          Treatment of Certain Refunds. 
If the Agent or a Lender determines, in its reasonable discretion, that
it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to such Section 2.10, it shall pay to the
Borrower an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under such Section 2.10
with respect to the Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of the Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Borrower, upon the request of
Agent or such Lender, agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to Agent or such Lender in the event such Agent or such
Lender is required to repay such refund to such Governmental Authority.  This paragraph shall not be construed to
require Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower
or any other Person.


 


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2.11        Mitigation Obligations;
Replacement of Lenders.


 


A.            Designation of a
Different Lender Office.  If any Lender requests compensation under Section 2.10A
or 2.10B, or requires the Borrower to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 2.10E,
then such Lender shall use reasonable efforts to designate a different Lender
Office for making, issuing, funding or maintaining its Loan Commitments or
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.10 in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not otherwise be
materially disadvantageous to such Lender. 
The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


B.            Replacement of
Lenders.  If
any Lender requests compensation under Section 2.10A or 2.10B, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.10E,
or if any Lender defaults in its obligation to fund Loans hereunder, or if any
Lender has determined that it is unable to make, maintain or continue its Base
Rate Loans in accordance with Section 2.9C hereof, then the Borrower may,
at its sole expense and effort, upon notice to such Lender and the Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section 9.1),
all of its interests, rights and obligations under this Agreement and the related
Loan Documents to an Eligible Assignee that shall assume such obligations
(which Eligible Assignee may be another Lender, if a Lender accepts such
assignment), provided that (i) the Borrower shall have paid to the
Agent the assignment fee specified in Section 9.1B(i)(c), (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 2.9D) from such Eligible Assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts), (iii) such Eligible Assignee is
able to make, maintain or continue, as applicable, Loans, (iv) in the case
of any such assignment resulting from a claim for compensation under Section 2.10A
or 2.10B or payments required to be made pursuant to Section 2.10E, such
assignment will result in a reduction in such compensation or payments
thereafter, and (v) such assignment does not conflict with Applicable
Law.  A Lender shall not be required to
make any such assignment or delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.


 


2.12        Releases of Collateral.


 


A.            Releases in Connection with
Permitted Collateral Asset Sales and Required Dedications. 
In connection with any Permitted Collateral Asset Sale or Required
Dedication, the Agent or its duly authorized attorney-in-fact shall release the
applicable portion of the Real Property Collateral from the Lien of the
Mortgage (such portion of the Real Property Collateral, a “Released
Parcel”); provided that all of the applicable conditions
set forth in Section 6.8 have been satisfied and the Borrower shall have
submitted to Agent (i) a request for release in a form satisfactory to the
Agent (the “Request for Release”), (ii) one
or more reconveyances or releases for each Released Parcel for execution by the
Agent, and (iii) all other documentation as Agent may reasonably require
in connection with such Release (collectively, the “Release
Instruments”) in a form appropriate for recordation in the
applicable county and otherwise satisfactory to the Agent in its good faith
discretion for each Released Parcel (for execution by Agent) together with an
Officer’s Certificate certifying that (i) the Release Instruments are in
compliance with all Applicable Laws and Governmental Authorizations, (ii) the
release to be effected will not violate the terms of this Agreement or the
other Loan Documents, and (iii) the release to be effected will not impair
or otherwise adversely affect the Liens (other than the Lien that is


 


40

















 


actually being released) and other rights of
the Agent under the Loan Documents not being released.  Agent shall have the right to establish an
escrow arrangement and appoint an escrow agent responsible for the
administration therefor, through which Release Instruments may be placed into
escrow by the Agent prior to the occurrence of a Permitted Collateral Asset
Sale or Required Dedication for release by the escrow agent upon escrow agent’s
confirmation of certain agreed upon conditions. 
Borrower shall reasonably cooperate with any such arrangement.  If the requirements of this Section 2.12
and Section 6.8 are otherwise satisfied, the Agent shall execute (and
cause to be notarized) each of the Release Instruments accompanying a Request
for Release within five (5) Business Days of receipt of such Request for
Release and accompanying Release Instruments.


 


B.            Consents and
Subordinations in connection with Specified Encumbrances.  Upon five (5) Business Days prior written
notice from the Borrower, the Agent shall sign and consent to and/or
subordinate the First Priority Lien of the Mortgages to any Specified Encumbrance; provided
that (i) any such signature of the Agent is expressly made with no implied
duty or obligation on the part of the Agent to review such Specified
Encumbrance and is only made for the purpose of consenting to and/or
subordinating the First Priority Lien of the Mortgage to such Specified
Encumbrance, (ii) no monetary Default or Event of Default has occurred and
is continuing, and (iii) the Agent shall, as a condition to such consent
and/or subordination, be satisfied in its reasonable discretion that such
consent and/or subordination could not reasonably be expected to (a) have
the effect of reducing the number of permitted Residential Units or Unimproved
Lots below 150 or (b) be considered in the aggregate to have a Material
Adverse Effect or impair Agent’s Lien on the remaining Real Property
Collateral.  Notwithstanding the
foregoing, Borrower shall be permitted to enter into, execute and record any
Specified Encumbrance without the Agent’s prior consent if such Specified
Encumbrance (I) shall be subordinated to the Lien of the Mortgages and (II) could
not reasonably be expected to have a Material Adverse Effect.  The Borrower shall pay all reasonable
out-of-pocket costs and expenses of the Agent and the Title Company in
connection with any such consent and/or subordination.


 


SECTION 3.

CONDITIONS TO EFFECTIVENESS


 


3.1          Conditions to
Effectiveness on the Closing Date.


 


The obligation
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:


 


A.            Organizational
Documents.  On
or before the Closing Date, the Borrower shall deliver or cause to be delivered
to the Agent for the Lenders the following, each, unless otherwise noted, dated
the Closing Date:


 


(i)            a certified copy of the Organizational Documents of
the Borrower, each of its Subsidiaries, the Shareholder Pledgors and the
Sponsor Guarantor certified as of the Closing Date by a Responsible Officer of
each such party, dated a recent date prior to the Closing Date;


 


(ii)           certified copies of the Organizational Certificates of
the Borrower, each of its Subsidiaries, the Shareholder Pledgors and the
Sponsor Guarantor, together with a good standing certificate from the
applicable Governmental Authority of its jurisdiction of incorporation,
organization or formation, each state or jurisdiction in which any of its Real
Property Assets are located, and each other state or jurisdiction in which it
is qualified as a foreign corporation or other entity to do business, each
dated a recent date prior to the Closing Date;


 


41

















 


(iii)          copies of the Organizational Authorizations of
Borrower, each Subsidiary, the Shareholder Pledgors and the Sponsor Guarantor
approving and authorizing the execution, delivery and performance of the Loan
Documents to which Borrower, each Subsidiary, the Shareholder Pledgors and
Sponsor Guarantor are a party or by which it or its assets may be bound that
are to be delivered on the Closing Date, certified as of the Closing Date by a
Responsible Officer as being in full force and effect without Modification; and


 


(iv)          incumbency certificates of the officers of the
Borrower, its Subsidiaries, the Shareholder Pledgors and the Sponsor Guarantor
executing this Agreement and the other Loan Documents to which it is a party as
of the Closing Date.


 


B.            Consummation of Transactions.


 


(i)            each of the Loan Documents shall be in form and
substance reasonably satisfactory to the Agent and each such Loan Document
shall have been duly executed and delivered by each party thereto and shall be
in full force and effect;


 


(ii)           Agent shall have received evidence reasonably
satisfactory to it that prior to the funding of the Loans, Cash equity in the
amount of $60,000,000 shall have been contributed to Borrower; and


 


(iii)          after giving effect to the funding of the initial
Loans, the Borrower and its Subsidiaries shall have no outstanding Indebtedness
or Disqualified Preferred Stock other than (a) the Loans under this
Agreement, and (b) the Indebtedness and Disqualified Preferred Stock
permitted under Section 6.1.


 


C.            Intentionally
Omitted.


 


D.            Necessary Consents.  The Borrower shall have obtained all
approvals and consents of Governmental Authorities and other Persons necessary
or advisable in connection with the transactions contemplated by this Agreement
and the continued operation of the business conducted by the Borrower and its
Subsidiaries, including, without limitation, for the development work Borrower
has commenced prior to the Closing Date, but in each case only to the extent
necessary for the then current stage of the development of the Project, all
applicable appeal periods shall have expired and each of the foregoing shall be
in full force and effect and in form and substance reasonably satisfactory to
the Agent.  Such approvals and consents
shall be satisfactory to Agent in its sole and absolute discretion and shall
include, without limitation, the executed consents and estoppels as set forth
on Schedule 3.1D annexed hereto and executed consents from any Person
required in connection with the Collateral Documents.


 


E.             Perfection of
Security Interests.  The
Borrower shall have taken or caused to be taken such actions in such a manner
directed by the Agent to create a valid and perfected First Priority security
interest in the Collateral of each Loan Party in which a security interest can
be granted and perfected under the UCC (to the extent applicable) or other
Applicable Law to the extent required by the Collateral Documents.  Such actions shall include:  (i) the delivery to the Agent of (a) the
results of a recent search, by a Person satisfactory to the Agent, of all
effective UCC financing statements and fixture filings and all judgment and tax
lien filings which may have been made with respect to any personal or mixed
property of any Loan Party, together with copies of all such filings disclosed
by such search and (b) UCC financing statements the recordation of which
has been authorized by the applicable Loan Parties as to all such Collateral
granted by such Loan Parties for all jurisdictions as may be necessary or
desirable to perfect Agent’s security interest in such Collateral; and (ii) the
delivery to the Agent of evidence reasonably satisfactory to the Agent that all
other filings (including UCC termination statements and


 


42

















 


releases and filings with the PTO and the
United States Copyright Office with respect to Intellectual Property of the
Loan Parties), recordings and other actions the Agent deems necessary or
advisable to establish, preserve and perfect the First Priority liens granted
to the Agent in constituting personal (both tangible and intangible) and mixed
property shall have been made.


 


F.             Real Property.  The Agent shall have received on or prior to
the Closing Date from the Borrower and each applicable Loan Party:


 


(i)            Mortgages.  Fully
executed and notarized Mortgages, together with any Modifications thereto
deemed necessary by the Agent in connection with the execution and delivery of
this Agreement, the other Loan Documents and the transactions contemplated
hereby and thereby, in proper form for recording, registering, or other form of
indexing in the appropriate real property records of the Commonwealth of The
Bahamas encumbering the Real Property Collateral listed on Schedule 3.1.F,
in each case in form and substance satisfactory to the Agent;


 


(ii)           Title Insurance.  Binding
commitments from the Title Company to issue mortgagee title insurance policies
in a form customarily employed for commercial real estate transactions in The
Bahamas and otherwise reasonably satisfactory to Agent (the “Mortgagee
Policies”) with respect to the Mortgages listed on Schedule
3.1F, in amounts not less than the respective amounts designated on such
Schedule with respect to any particular portion of Real Property Collateral,
insuring fee simple title to or a leasehold interest in each such portion of
Real Property Collateral vested in such Loan Party and insuring the Agent that
the applicable Mortgages create valid and enforceable First Priority mortgage
Liens on the respective Mortgaged Properties encumbered thereby, subject only
to the Permitted Encumbrances, which Mortgagee Policies (1) shall include
all endorsements reasonably requested by Agent and (2) shall provide for
affirmative insurance and such reinsurance as the Agent may reasonably request,
all of the foregoing in form and substance customarily employed for commercial
real estate transactions in The Bahamas and otherwise reasonably satisfactory
to the Agent; and evidence satisfactory to the Agent that such Loan Party has (i) delivered
to the Title Company all certificates and affidavits required by the Title
Company in connection with the issuance of the Mortgagee Policies, each in a
form mutually acceptable to Borrower and Title Company and (ii) paid to
the Title Company or to the appropriate Governmental Authorities all expenses
and premiums of the Title Company and all other sums required in connection
with the issuance of the Mortgagee Policies and all recording and stamp taxes
(including mortgage recording and intangible taxes) payable in connection with
recording the Mortgages in the applicable real property records of the
Commonwealth of The Bahamas;


 


(iii)          Surveys; Plat Maps.  A survey or
plat maps customarily used in commercial real estate transactions in The
Bahamas and otherwise with respect to the portions of the Project owned or
leased by Borrower as of Closing dated a date, and prepared and certified by a
Person and in form and substance, reasonably satisfactory to the Agent;


 


(iv)          Appraisal.  One original
of the Initial Appraisal, in form and substance satisfactory to the Agent;


 


(v)           Entitlement Documents. 
Agent shall have received true, correct and complete copies of all
Entitlement Documents obtained by Borrower as of Closing;


 


43
















 


(vi)                              Engineering Reports. 
Agent shall have received engineering and soils reports with respect to
the Project obtained by Borrower as of Closing in form and substance
satisfactory to the Agent;


 


(vii)                           Copies of Documents Relating to
Title Exceptions.  Copies of all recorded documents listed as
exceptions to title or otherwise referred to in the Mortgagee Policies
delivered pursuant to clause (ii) above;


 


(viii)                        Matters Relating to Flood Hazard
Properties.  Evidence that the Borrower has obtained flood
insurance for the Project in form and substance reasonably satisfactory to
Agent; and


 


(ix)                                Construction Drawings and Budgets. 
Agent shall have received conceptual constructions drawings and plans
acceptable to it and shall have approved an initial budget and project schedule
(which may be included in the Development Budget).


 


G.                                    Copies of Documents for Lenders.   If requested by any Lender or any
potential Eligible Assignee in writing (with such request addressed to the
Agent) prior to the Closing Date, Borrower shall provide a copy of any survey
or plat maps, the Initial Appraisal, the title report or any other due
diligence document reasonably requested by such Lender or potential Eligible
Assignee.


 


H.                                    Financial Condition
and Solvency Certificate.  The Borrower shall have delivered to the
Agent a solvency certificate from the president of RIBL, in form and substance
acceptable to Lender (the “Solvency Certificate”).


 


I.                                         Transaction Costs,
Fees and Expenses.  On
or prior to the Closing Date, the Borrower shall have paid (i) to the
Agent any and all fees and reasonable expenses of the Agent that are then due
and owing or accrued and not yet paid under or in connection with this
Agreement or any of the documents, instrument or agreements executed in
connection herewith and (ii) to the appropriate Persons any and all
outstanding reasonable fees and expenses (including legal advisors) incurred by
the Agent and Lenders through the Closing Date in connection with the
negotiation, drafting and execution of the Loan Documents.


 


J.                                      Opinions of Loan Parties’ Counsel.  The Agent and its counsel shall have received
the written opinions of Vinson & Elkins LLP, Davis & Co., and
Allens Arthur Robinson, counsel for the Loan Parties, the Sponsor Guarantor (or
the Agent with respect to Allens Arthur Robinson) and Shareholder Pledgors (a) in
form and substance reasonably satisfactory to the Agent and its counsel, (b) dated
as of the Closing Date, (c) addressed to each of the Agent and the
Lenders, and (d) setting forth the matters reasonably requested by the
Agent.


 


K.                                    Financial
Information.  On
or before the Closing Date, the Agent shall have received from the Borrower (i) such
financial information and projections described in Section 5.3 as the
Agent may reasonably request, and (ii) the Development Budget, all in form
and substance reasonably satisfactory to the Agent.


 


L.                                     Evidence of
Insurance.  The
Agent shall have received copies of certificates of insurance with respect to
each of the insurance policies required pursuant to Section 5.6, and the
Agent shall be reasonably satisfied with the nature and scope of such insurance
policies.


 


M.                                  Environmental.  The Agent shall have received the
Environmental Impact Assessment, in form and substance and from an independent
environmental assessment firm satisfactory to the Agent,


 


44

















 


and the Agent shall be reasonably satisfied
as to the amount and nature of any environmental and employee health and safety
exposures to which the Borrower and its Subsidiaries may be subject after
giving effect to the initial Borrowing hereunder, and with the plans of the
Borrower or such Subsidiaries with respect thereto.


 


N.                                    No Material Adverse
Effect. Since September 30, 2007, there shall not have occurred any event, change or
condition that has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.


 


O.                                   Organizational and Capital
Structure, Ownership, Management, Etc.


 


(i)                                     Organizational Structure. 
The organizational structure of Borrower and its Subsidiaries as of the
Closing Date shall be as set forth on Schedule 3.1O.


 


(ii)                                  Capital Structure and Ownership. 
The capital structure and ownership of the Borrower and it Subsidiaries
as of the Closing Date shall be as set forth on Schedule 3.1O.


 


P.                                     Representations and
Warranties; Performance of Agreements.  The Borrower shall have delivered to the
Agent an Officer’s Certificate, in form and substance satisfactory to the
Agent, to the effect that the representations and warranties in Section 4
are true and correct in all material respects on and as of the Closing Date,
both before and after giving effect to the initial Borrowing, to the same
extent as though made on and as of that date, and that the Borrower has
performed in all material respects all agreements and satisfied all conditions
which this Agreement provides shall be performed or satisfied by it on or
before the Closing Date, except as set forth in the Post-Closing Endeavor
Letter.


 


Q.                                   No Litigation.  There shall be no litigation or governmental,
administrative or judicial actions or proceedings, actual or threatened, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or that could reasonably be expected to restrain,
prevent or impose burdensome conditions to the initial Borrowing.


 


R.                                    Completion of
Proceedings.  All
partnership, corporate, limited liability company and other proceedings taken
or to be taken in connection with making the initial Borrowing and all
documents incidental thereto shall be satisfactory in form and substance to the
Agent and such counsel, and the Agent and such counsel shall have received all
such counterpart originals or certified copies of such documents as the Agent
may reasonably request.  Each Lender, by
delivering its signature page to this Agreement, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and
each other document required to be approved by the Agent, Requisite Lenders or
Lenders, as applicable, on or prior to the Closing Date.


 


S.                                     Money Laundering.  The Agent shall have received, sufficiently
in advance of the Closing Date, all documentation and other information
requested by Agent from the Loan Parties under applicable “know your customer”
and anti-money laundering rules and regulations, including the U.S.A.
Patriot Act.


 


T.                                     Request for Advance. 
The Agent shall have received at least ten (10) days before the
Closing Date, an originally executed Request for Advance, signed by a
Responsible Officer of the Borrower or by any executive officer of the Borrower
designated by a Responsible Officer of the Borrower in a writing delivered to
the Agent.


 


45

















 


U.                                     Searches. 
If requested by Agent, the Agent shall have received judgment and lien
searches satisfactory to it with respect to the Borrower and its Subsidiaries,
the Subsidiary Guarantors, the Sponsor Guarantor and the Shareholder Pledgors
in all jurisdictions as Agent may require.


 


V.                                    HOA Estoppel. 
The Agent shall have received the HOA Estoppel in form and substance
reasonably satisfactory to Agent.


 


W.                                As of the Closing Date:


 


(i)                                     The representations and warranties
contained herein and in the other Loan Documents shall be true and correct in
all material respects on and as of the Closing Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date;


 


(ii)                                  No event shall have occurred and be
continuing or would result from the consummation of the borrowing contemplated
by the Request for Advance referenced in Section 3.1T above that would
constitute a Default or Event of Default, or could reasonably be expected to
have a Material Adverse Effect; and


 


(iii)                               No order, judgment or decree of any
Governmental Authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on the Closing Date.


 


X.                                    Loan
Accounts and Deposits.  The
Company’s Operating Account (and any other Loan accounts) shall have been
established in a manner satisfactory to Agent. 
The initial deposits into any reserves (if any) on the Closing Date,
shall have been made (which amounts may, with Agent’s approval, be made from
the proceeds of the Loan).


 


3.2                               Subsequent
Advances.


 


The obligation
of Lender to disburse proceeds of the Loan subsequent to the initial
disbursement of the Loan is subject to the prior or concurrent satisfaction of
the conditions precedent to such subsequent advances set forth below in this Section 3.2.


 


A.                                    Advances. 
Following the initial advance of the Loan made pursuant to Section 3.1
above, so long as no Event of Default or Default exists, within seven (7) calendar
days after Agent’s receipt of a complete Request for Advance (or otherwise as
set forth in this Agreement), Lender shall, on the terms and conditions set forth
in this Section 3.2 and, when applicable, Sections 3.3 and through 3.10,
make Development Advances to pay a portion of Borrower’s budgeted development
costs incurred in connection with the Construction of the Project when such
terms and conditions are satisfied or waived in writing by Agent.  Additionally, to the extent Agent did not
receive all deliveries and provide all approvals relating to the Project as set
forth in Section 3.1 (collectively, the “Initial
Closing Development Conditions”) and Agent has waived in whole or in
part such Initial Closing Development Conditions and made the initial
disbursement of the Loan pursuant to Section 3.1, then Agent shall have no
further obligations to make one or more subsequent disbursements of the Loan
for any portion of the development, design or Construction of the Project for
which such Initial Closing Development Conditions have not been satisfied and
obtained.  To the extent Agent has
received and approved the Initial Closing Development Conditions applicable to
a portion of the development, design and Construction of the Project, and all
other conditions and requirements applicable thereto as set forth in this Section 3.2,
and, as applicable, Sections 3.3 through 3.10, Agent shall make disbursements
of the 


 


46

















 


Loan for such purposes.  The Development Advances shall be made by
Agent in accordance with the terms and conditions of this Section 3.


 


B.                                    Payments
of Interest and Lender’s Costs.  On each
Payment Date, Agent shall, with or without Borrower having made a Request for
Advance, make Development Advances for purposes of paying Agent all interest
and other sums which are then due and payable from Borrower under the Loan
Documents.  As set forth in the Development
Budget, a portion of the Loan has been held back to fund, absent the occurrence
and continuance of an Event of Default, accrued interest on the Loan during the
term of the Loan and shall be available to fund such accrued interest so long
as the Holdback amount for such interest has not been exhausted; provided,
however, that as Development Advances are increased beyond $30,000,000, such
Holdback for interest shall be increased by Lender by the Holdback Multiplier,
as more explicitly set forth in Section 3.2D. below.  Provided that no Event of Default shall have
occurred and be continuing, Agent is hereby authorized to disburse and will
disburse to itself for disbursement to the Lenders, interest payments due the
Lenders under the Loan and other sums which are then due and payable from
Borrower to Agent under the Loan Documents on the date said payments are due
and each such disbursement shall be deemed to be a Development Advance of the
Loan hereunder.  Nothing contained in
this Section 3.2B shall relieve Borrower of the absolute and unconditional
obligation to pay accrued interest on the Loan as provided herein and in the
Note and the other Loan Documents.  If
the funds in the Holdback for such interest are insufficient or are otherwise
unavailable for disbursement (including, the result of an Event of Default),
then Borrower shall pay or cause to be paid from sources other than the Loan
directly to Agent (and not through any construction escrow) the accrued
interest then due and payable in the amount set forth in a notice to Borrower.


 


C.                                    Development
Budget; Holdbacks of Loan Proceeds.  Borrower
represents and warrants that the Development Budget is accurate and complete
and includes all construction, design and Land acquisition costs, if any, of
the Land and the Project, including all costs and expenses necessary to
satisfy, fulfill, comply with and perform all terms, conditions, requirements
and obligations under and pursuant to Legal Requirements, all Construction
Contracts, all Architect’s Agreements, all Civil Engineer’s Agreements, all
Development Management Agreements, all Sales Management Agreements,  and all other Material Contracts, other than those, if any,
which a Governmental Authority has agreed, in writing, to perform, as approved
by Agent.  Anything contained herein to
the contrary notwithstanding, Agent shall establish five (5) holdbacks (“Holdbacks”)
from the undisbursed portion of the Loan in such amounts which, in Agent’s sole
opinion, are necessary for the payment of (i) interest on the Loan, (ii) certain
specified construction costs, (iii) design costs, (iv) other budgeted
line items and (v) the acquisition of 50% of the equity interests in Rock
House.  Any such Holdback funds, when
advanced by Agent, shall be deemed to be proceeds of the Loan advanced under
this Agreement, whether or not advanced to Borrower.


 


D.                                    Deliberately
Omitted.


 


E.                                      Funding
Limitations.


 


(i)                                     The Loan is allocated into five (5) Holdbacks,
for specific categories of costs in the Development Budget related to the interest
reserve, the Borrower’s acquisition of a 50% interest in the Rock House,
certain specific Construction line items and design and consultant work, in
addition to a Holdback for any other budgeted line items (“Other Budgeted Line
Items”).  The specific Holdbacks in the
Development Budget have associated multipliers (the “Holdback Multiplier”) such
that as pre-sales occur, the initial specific Holdback allocation may be
increased to an amount calculated as: 
(the initial budgeted amount) + (presales achieved x the respective
Holdback Multiplier).  The below table
details how the allocated Loan, as held in the various Holdbacks would look
over time, assuming Tranche A-2 is fully


 


47

















 


committed.  To the extent Tranche A-2 is not
committed, the Other Budgeted Line Items Holdback availability will be less.


 


(ii)                                  Each initial Holdback, together with
its corresponding Holdback Multiplier, is as follows:


 


	
  HOLDBACK

  	
   

  	
  HOLDBACK AMOUNT

  	
   

  	
  MULTIPLIER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest Reserve:

  	
   

  	
  $

  	
  2.5 M

  	
   

  	
  0.041667

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rock House Acquisition:

  	
   

  	
  $

  	
  5.8 M

  	
   

  	
  NA

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specific Construction Costs

  [see (iii) below]

  	
   

  	
  $

  	
  5.0 M

  	
   

  	
  0.250000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Design

  	
   

  	
  $

  	
  2.5 M

  	
   

  	
  0.041667

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other Budgeted Line Items 

  [see (iv) below]

  	
   

  	
  NA

  	
   

  	
  NA

  	
   

  



 


(iii)                               The Specific
Construction Costs Holdback may be spent by Borrower on the following tasks:


 


(1)                                  Construction
of a MGPD RO Water Plant and 50% Capacity of a 240K GPD Waste Water Treatment
Plant.


 


(2)                                  Clearing
of Golf Course, Hotel core and utility route to service compound from end of
submarine power feed.


 


(3)                                  Earthwork
movement associated with fills related to the Golf Course, Hotel core and
electrical utility trench.


 


(4)                                  Utility
distribution work which shall include the necessary permanent underground and
submarine feeders and equipment to get 1.5Mw electrical service from SGCPCO on
Russell Island to the service yard on Royal Island.


 


(5)                                  New
switchgear work at both ends and all terminations including to the new RO and
WW plants.


 


(6)                                  Work
on the Preview/Melanie Beach area which shall be completed as now designed.


 


(7)                                  Acquisition
of the labor camp barge, subject to Borrower’s delivery to Agent of an executed
put agreement with a third party for not less than $2,000,000.


 


(iv)                              The amount of the Holdback for Other
Budgeted Line Items will be the difference between the committed amount of the
Loan and the aggregate of the remaining four Holdbacks at any point in
time.  This Holdback may be used to fund
any line items in the Development Budget.


 


48

















 


F.                                      Limitations
on Requests.  Borrower shall submit a Request for Advance
no more frequently than once per month with no more than 45 days and no less
than 28 days between each request.  Agent
shall make no more than one Development Advance per month, other than advances
of interest under Section 3.2B above.


 


G.                                    Request
for Advance.  Borrower shall have submitted to Lender an
executed completed Request for Advance.


 


H.                                    Intentionally
Omitted.


 


I.                                         Inspection
Approval.  With respect to Development Advances for
Construction, the Architect, Civil
Engineer, or other design professional, as appropriate,  involved
with such advance shall have certified to Agent in the form required by Agent
and included as part of Schedule 1.4(C) that
the requested Development Advance is for the payment of construction costs
incurred in connection with Construction which has been completed in accordance
with the Plans and Specifications for the applicable Construction Contract.


 


J.                                      Payment
Supporting Information.  Borrower
shall provide Agent with true and correct copies of all invoices and bills for
construction and design costs (and Land acquisition costs, if any) incurred in
connection with the then completed development, design and Construction of the
Project, and there shall be no material deviation from the Development Budget
(except with Agent’s prior written approval) in connection with the
acquisition, development, design and Construction of the Project which has been
completed to date.  Specifically, no
advance (or advances, as appropriate) for a specific line item in the
Development Budget for the Project, including any retainage for said line item,
will exceed the amount of said line item in the Development Budget for the
Project.  For purposes of this Section 3.2,
costs shall be deemed to have been “incurred” by a Borrower at the following
times:  (i) Construction costs —
when the labor has been performed or the materials have been supplied and
incorporated into the Mortgaged Property, payment therefore has been requested
by the contractor or supplier thereof, and such contractor or supplier is
entitled thereto; (ii) Operating costs — when such costs are due and
payable (or have been paid by Borrower) and the services relating thereto have
been rendered or the value thereof has been received by Borrower and (iii) Land
acquisition costs – when paid.


 


K.                                    Verification. 
All construction, design and Land acquisition costs, if any, are to be
certified by Borrower in accordance with the Request for Advance and verified
by Agent and, as requested by Agent from time to time with respect to
construction and design costs, by Agent’s Construction Consultant as having
been incurred for the Project. 
Verification of the monthly progress of the development, design and
Construction, Costs which have been incurred by Borrower, and the estimated
total Costs of Completion of Construction may be made by Agent in its sole
discretion.  All construction, design
(and Land acquisition costs, if any) shall be subject to verification and
approval by Agent.


 


L.                                     Intentionally
Omitted.


 


M.                                  Retainage. 
Except as provided below, Borrower shall not request in a Request for
Advance, but rather withhold payment from Contractors as evidenced in each
Request for Advance, the amount of 10% of the ‘Contract Sum’ under such
Construction Contract eligible for payment (the “Retainage”)
to each Contractor until such Contractor’s portion of the Construction of the
Project has achieved Completion of Construction.  To the extent permitted by a Construction
Contract for the Project, Borrower may request in writing that Agent approve
any of the following actions following completion of the applicable
requirements set forth below.


 


49

















 


(i)                                     Upon or following the Construction
of any Subcontractor being fifty percent (50%) complete, no further Retainage
being withheld on payments made to Contractor for such Subcontractor’s work
performed following such fifty percent (50%) (or greater as requested)
completion of such Subcontractor’s work.


 


(ii)                                  Upon or following all Construction
being fifty percent (50%) complete, no further Retainage being withheld on
payments made to Contractor for Contractor’s general conditions items and fee,
as applicable, which apply to Construction following such fifty percent (50%)
(or greater, as requested) completion of all Construction.


 


(iii)                               Upon the final Completion of
Construction of any Subcontractor’s portion of Construction, the release of all
or a portion of the Retainage owed to such Subcontractor; provided that if the
request is for a release of all such Retainage owed to such Subcontractor, then
such request must be accompanied by all lien waivers and other deliveries
required for final payment under both the applicable Subcontract and Section 3.3
below.


 


Agent, acting
in its sole and absolute discretion and under no obligation to do so, may
approve or disapprove any such request. 
It shall be a condition precedent to any such approval by Agent that all
applicable sureties consent in writing to such change in Retainage.  If so approved, such request shall thereafter
be specifically set forth in applicable Request for Advance and deliveries
related thereto.  Agent shall not be
obligated to release or reduce the Retainage for Contractor or on behalf of any
Subcontractor who has performed all or any portion of the Construction until
all of the Construction has achieved Completion of Construction.


 


N.                                    Payments. 
Agent may make Development Advances (i) payable directly to
Borrower, or (ii) payable jointly to Borrower and to the applicable party
for whom payment is requested.  Agent may
elect to make all Development Advances through a construction or other escrow
agreement with the Title Company.


 


O.                                   Representations
and Warranties.  Borrower shall be deemed to have remade, as
of the date of each submitted Request for Advance, each and every
representation and warranty made by Borrower in this Agreement and in every
other Loan Document, and every such representation and warranty shall be true
and correct at the time of each Development Advance.


 


P.                                     Intentionally
Omitted.


 


Q.                                   Compliance. 
With respect to Construction Costs for the Project, Borrower shall have
provided Agent with (i) evidence satisfactory to Lender that the
Construction complies with all building, zoning and other Legal Requirements, (ii) all
necessary Licenses and Permits, approvals and consents required for the use,
occupancy and operation of the Land and Improvements, as altered by the
Construction for the Project as applicable to the then current state of the
Construction, and (iii) evidence satisfactory to Agent that all
Construction completed on the date of the Request for Advance has, to the
extent required by law, been inspected and approved by each Governmental Authority
and by each other person or entity (including any tenants) having the right to
inspect and approve such Construction, in each case as is required, and (iv) all
other elements required for the Construction to achieve Construction Legal
Compliance through and including the date of the requested Development Advance.


 


R.                                    Additional
Information.  Borrower shall have provided Agent with such
other information and material relating to the development, design,
Entitlements, and Construction of the Project (as appropriate to the stage of
development) as Agent requests. 
Additionally, Borrower shall have satisfied such other conditions to any
Development Advance which Agent may require or impose.


 


50

















 


S.                                     Intentionally
Omitted.


 


T.                                     Construction
Consultant’s Report.  With respect
to budgeted Costs for the Project, Agent shall have received a written report
from Agent’s Construction Consultant with respect to the applicable Request for
Advance stating: (i) that, in the opinion of Agent’s Construction
Consultant, all Change Orders and modifications or amendments to the Plans and
Specifications, any Development Budget or any Development Schedule required
hereby to be approved by Agent are satisfactory to Agent’s Construction
Consultant; and (ii) that, in the opinion of Agent’s Construction
Consultant, the Construction theretofore completed has been completed in
accordance with the Plans and Specifications.


 


U.                                     Change
Order.  No Change Orders, other than Permitted
Construction Change Orders, shall have been made to any Construction Contract,
Architect’s Agreement, Civil Engineer Agreement Development Management
Agreement, Sales Management Agreement, the Entitlement Documents, the Plans and
Specifications or the Development Budget without obtaining Agent’s prior
written consent to such Change Order. 
All Change Orders shall have been made in accordance with all Legal
Requirements.  Borrower shall have
promptly notified Agent of any anticipated changes in line items of the Development
Budget, which if approved, would result in a net increase in the total amount
of the Development Budget.


 


V.                                    No Stop
Notice.  No stop notice (whether bonded or not) shall
have been served upon or otherwise delivered to Lender in connection with the
Construction or otherwise in connection with the Loan, unless Borrower shall
have (a) paid and discharged the same using funds other than Loan funds, (b) effected
the release thereof by delivering to Agent a surety bond complying with the
requirements of applicable Legal Requirements for such release, or (c) taken
such other actions as Agent may approve in writing to release Lender from any
obligation or liability with respect to such stop notice.


 


W.                                Intentionally
Omitted.


 


X.                                    Stored
Materials.  Disbursements for materials stored offsite in
The Bahamas or delivered to the site but not yet incorporated into the Project
(“Stored Materials”) shall be subject to
Agent’s having received satisfactory evidence that the following are true:


 


(i)                                     The Stored Materials are ready for
installation and appropriate for purchase during the then current stage of
Construction, unless otherwise approved in writing by Agent;


 


(ii)                                  The Stored Materials are stored
either (1) at the Project site, (2) in a bonded public warehouse or (3) any
other facility or location acceptable to Agent, and such Stored Materials are
protected in a manner acceptable to Agent against theft or damage;


 


(iii)                               Ownership of the Stored Materials
for which Agent has previously disbursed funds has vested in Borrower free of
all security interests except the liens evidenced by the Loan Documents and
statutory Liens in favor of the warehouseman, and no other Person has asserted
that it has any rights to or interest in such Stored Materials;


 


(iv)                              Borrower has caused the Contractor
and any other Person that possesses, holds or controls access to any Stored
Materials, to execute and deliver to Agent a bailment letter in the form of
either Exhibit G-1 or Exhibit G-2, as applicable to
such situation;


 


(v)                                 Without limiting any of the
foregoing provisions of this Section 3.2, Agent has a perfected,
first-priority security interest in the Stored Materials for which Agent or any
other Person has previously disbursed funds;


 


51

















 


(vi)                              While in storage, the Stored
Materials are covered by insurance as required by Section 4.38;


 


(vii)                           The materialmen have delivered lien
waivers and invoices for the full amount of the Stored Materials for which
Agent or any other Person has previously disbursed funds; and


 


(viii)                        Architect or another party approved
by Agent has provided a certification in form and substance satisfactory to
Agent verifying the Stored Materials are in conformance with the Plans and
Specifications and containing the location of and a comprehensive inventory
list of such Stored Materials based upon a physical inspection.  Such certification shall be accompanied by
digital pictures of such Stored Materials.


 


The foregoing
provisions are not intended to apply to disbursements of Loan proceeds which
are made for the purpose of making customary deposits which are required by
certain vendors with respect to purchase orders of construction materials, so
long as the same have been approved by Lender; provided, however, that if and
when any materials are paid for in full by Borrower the provisions of this Section 3.2
above shall apply.


 


Y.                                     Deposits. 
Disbursements of Loan Proceeds for deposits which are required by
vendors with respect to purchase orders of construction materials requested by
Borrower shall or by Contractors with respect to Construction Contracts only be
considered by Agent to the extent (i) specifically and separately set
forth in the Development Budget, including supporting schedules thereof, (ii) Agent
has received evidence satisfactory to Lender verifying the requirements for and
amount of such deposit.


 


Z.                                     No
Casualty or Condemnation.  Agent shall
have received such other evidence as Agent may require confirming that the
Mortgaged Property shall be undamaged by fire or other cause (unless
Restoration is taking place as permitted by and pursuant to the terms and
conditions of this Agreement) and there shall be no condemnation or eminent
domain proceedings pending or overtly threatened (evidencing an intent to sue
or to commence such a proceeding or investigation) against the Mortgaged
Property.


 


3.3                               Conditions
to Final Development Advance for Construction.  For each Construction Contract, Agent shall
make the final disbursement of the Loan for costs of the Construction performed
under the Construction Contract for the Project as requested in a Request for
Advance provided that no Event of Default then exists and that in addition to
the requirements set forth in Section 3.2 above, all of the following
conditions precedent thereto set forth in Section 3.3 have been complied
with and satisfied, and Borrower agrees to satisfy the following conditions
precedent on or before the Required Completion Date, in each case for such
Construction included in such Construction Contract:


 


A.                                    Final
Completion.  Such Construction pursuant to such
Construction Contract shall be finally completed in accordance with the Plans
and Specifications, and except for the amount then being requested, all costs
and expenses thereof have been paid in full.


 


B.                                    No
Proceedings.  There shall be no governmental actions,
proceedings or investigations pending or overtly threatened (evidencing an
intent to sue or to commence such a proceeding or investigation) against or
filed by Borrower which might:  (i) have
a Material Adverse Effect on the Improvements or the value of the Improvements
or (ii) adversely impair Agent’s security for full and timely performance
of all obligations hereunder.


 


C.                                    Borrower’s
Certificate.  Borrower shall have furnished to Agent a
certificate from Borrower currently dated, certifying that:  (i) no notices from any Governmental
Authority of any claimed


 


52

















 


violations of ordinances arising from the
construction or operation of the Improvements which have not been cured were
served upon Borrower or, to Borrower’s best knowledge, any contractor or
subcontractor, including any Contractor or any Subcontractor, or their
respective agents or representatives and (ii) Borrower is not aware of any
circumstances which could give rise to the issuance of any such notice of
claimed violation.


 


D.                                    Surety
Consent.  Borrower shall have
furnished the written consent of all sureties providing bond(s), if any,
applicable to such Construction Contract.


 


3.4                               Intentionally
Omitted.


 


3.5                               Performance
of Development.


 


A.                                    Construction. 
For the Project, Borrower shall: (i) cause Completion of each
portion of Construction in a good and workmanlike manner and Construction Legal
Compliance; (ii) commence the development, design and Construction within
ten (10) days following the Closing Date and pursue the development, design and
Construction diligently; (iii) after commencement of the development,
design and Construction, not permit cessation of said development, design and
Construction for a period in excess, in the aggregate, of five (5) Business
Days without the prior written consent of Agent; (iv) complete the
development, design and Construction and construct the Project entirely on the
Land and so as not to encroach upon any easement, right-of-way or land of
others, and so as to not violate any set-back lines, applicable public or
private use restrictions, other restrictions or regulations, any Legal
Requirements or any other requirement of any Governmental Authority; and (v) cause
all development, design and Construction associated with the Project to be
performed in accordance with all Construction Legal Compliance and only by
Architects and Civil Engineers, as applicable  and
Contractors which are approved by Agent as required by this Agreement.  Notwithstanding the foregoing, such five (5) Business
Day period shall be extended, but only up to an aggregate maximum of thirty
(30) days, for any event of Force Majeure.


 


B.                                    Compliance
with Plans.  Borrower shall not deviate from the
Development Budget, or line item therein, and Plans and Specifications for the
Project as approved by Agent in any respect, or issue (accept or agree to) any
Change Orders, other than Permitted Deviations and Permitted Construction Change
Orders, without the prior written consent of Agent.


 


C.                                    Maintenance
of Bond.  At all times prior to the Completion of
Construction for the Project, Borrower shall cause the Payment and Performance
Bond to be maintained in full force and effect.


 


D.                                    Initial
Development Contracts.  Borrower
shall perform faithfully all of its obligations under the Construction
Contracts, Architects Agreements, Civil
Engineer’s Agreements  for the
Project.  Borrower shall not modify,
terminate or amend any of such contracts and agreements without first obtaining
the written approval of Agent, except in connection with Permitted Construction
Change Orders.


 


E.                                      Compliance
with Schedule.  Borrower shall diligently perform the
development, design and Construction using all commercially reasonable efforts
in accordance with the Development Schedule, and each portion thereof.


 


F.                                      Development
Draw Schedule.  Without excusing Borrower’s noncompliance
with this Agreement, Borrower shall provide to Lender, for Lender’s review and
approval, an updated Development Draw Schedule, (a) concurrently with each
modification of any contract or agreement


 


53

















 


associated therewith and (b) not later
than thirty (30) days after the end of each Loan Quarter (until all Development
Advances have been fully disbursed). 
Each such update shall be accompanied by a written narrative explanation
setting forth, in reasonable detail, the deviations, if any, set forth in such
update to the such Development Draw Schedule, as previously updated, and the
reason(s) for such deviations.  Each
such update shall be accompanied by a certificate from the Borrower to the
effect that all deviations as reflected in such updated Development Draw
Schedule are permitted under this Agreement or have been expressly consented to
by Lender.


 


3.6                               Intentionally
Omitted.


 


3.7                               Other
Remedies of Lender.


 


Upon the
occurrence of an Event of Default, in addition to any other remedies available
to Agent by the terms of this Agreement or any other Loan Document or by law,
Agent may at its sole discretion: (a) complete the Construction in
accordance with the Plans and Specifications (with such changes as Agent shall
deem appropriate), all at the risk, cost and expense of Borrower; (b) discontinue
at any time the Construction; (c) engage builders, contractors, engineers,
architects and others for the purpose of furnishing labor, material and
equipment in connection with the Construction, which personnel may, but need
not, be the same as those engaged by Borrower; (d) pay, compromise or
settle any and all bills or claims incurred in connection with the
Construction; (e) exercise any or all of its rights under the applicable Loan
Documents; (f) take or refrain from taking such action with respect to the
Construction as Agent may from time to time determine; and (g) through an
advance of Loan proceeds, make payments due for the cost of development, design
and Construction directly to any Contractor, any Subcontractor, including any
material supplier or any vendor of Fixtures and Personalty, if any, Architect,
Civil Engineer, Development Manager, Sales Manager, or other party owed by
Borrower.  All such action shall be at
Borrower’s sole cost and expense, such sums being secured by the Mortgage.


 


3.8                               Protection
Against Liens.


 


Borrower shall
take all actions reasonably required to prevent the assertion of claims of lien
against the Mortgaged Property.  If any
claim of lien is asserted against the Mortgaged Property by any person
furnishing development or design services, or labor or materials for
Construction, or sales of any portion of the Mortgaged Property, Borrower shall
immediately give notice of the same to Agent and shall, promptly and in any
event within ten (10) days after Agent’s demand, (a) pay and
discharge the same, (b) effect the release thereof by delivering to Agent
a surety bond complying with the requirement of applicable Legal Requirements
for such release, or (c) take such other action as Agent may approve in
writing to release Agent from any obligation or liability with respect to such
stop notice or claim.


 


3.9                               Nonliability
of Agent and Lenders.


 


Borrower
acknowledges and agrees that:


 


A.                                    The relationship between Borrower
and Agent and Lenders is and shall remain solely that of borrower and lender,
and Agent neither undertakes nor assumes any responsibility to review, inspect,
supervise, approve or inform Borrower of any matter in connection with any of
the development, design or Construction, including matters relating to: (i) the
Plans and Specifications, (ii) architects, contractors, subcontractors and
materialmen, or the workmanship of or materials used by any of them, or (iii) the
progress of any of the Construction and its conformity with the Plans and
Specifications; and Borrower shall rely entirely on its own judgment with
respect to such matters and acknowledges that any review, inspection,
supervision, approval or information supplied to Borrower by Agent or Lenders
in connection


 


54

















 


with such matters is solely for the
protection of Agent and Lenders and that neither Borrower nor any third party
is entitled to rely on it;


 


B.                                    Notwithstanding any other provision
of any Loan Document: (i) Agent and Lenders are not a joint venturer, alter-ego,
manager, controlling person or other business associate or participant of any
kind of Borrower and Agent does not intend to ever assume any such status; and (ii) Agent
and Lenders shall not be deemed responsible for or a participant in any acts, omissions
or decisions of Borrower;


 


C.                                    Neither Agent nor any Lenders shall
be directly or indirectly liable or responsible for any loss or injury of any
kind to any person or property resulting from any construction on, or occupancy
or use of, the Mortgaged Property (except to the extent proximately caused by
Lender’s or Agent gross negligence or willful misconduct), whether arising
from: (i) any defect in any building, grading, landscaping or other onsite
or offsite improvement; (ii) any act or omission of Borrower or any of
Borrower’s agents, employees, independent contractors, licensees or invitees;
or (iii) any Mortgaged Property or any fire or other casualty or hazard
thereon; and


 


By accepting
or approving anything required to be performed or given to Agent under the Loan
Documents, Agent shall not be deemed to have warranted or represented the
sufficiency or legal effect of the same, and no such acceptance or approval
shall constitute a warranty or representation by Agent to anyone.


 


3.10                        Conditions
to Each Borrowing.


 


The obligation
of each Lender to make any Loan after the Closing Date is additionally subject
to the satisfaction of the following conditions:


 


(i)                                     The representations and warranties
contained herein and in the other Loan Documents shall be true and correct in
all material respects on and as of the date of such Loan to the same extent as
though made on and as of that date (subject to update of Schedules referenced
therein), except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects on and as of such
earlier date;


 


(ii)                                  At the time of and immediately after
giving effect to such Loan, no Default or Event of Default shall have occurred
and be continuing;


 


(iii)                               The total Loan Exposure shall not
exceed the total Loan Commitments; and


 


(iv)                              For each Borrowing of a Loan,
Borrower shall have delivered a completed and signed Request for Advance.


 


Each Borrowing
shall be deemed to constitute a representation and warranty by the Borrower on
the date thereof as to the matters specified in this Section 3.


 


3.11                        Conditions
to Disbursements from the Company’s Operating Account.


 


A.                                    General. 
The Borrower has established, and hereafter agrees to continue to
maintain the Company’s Operating Account. 
The Borrower hereby grants a security interest to the Agent in the
Company’s Operating Account to secure the Obligations.  Concurrently with the execution of this Agreement,
the Borrower has entered into Control Agreements with respect to the Company’s
Operating 


 


55

















 


Account with the Agent and the Account
Holder.  It is agreed that the Borrower and its Subsidiaries shall be permitted to
maintain accounts for payroll, petty cash and other purposes in which it is not
practical or possible to obtain a Control Agreement; provided, that the
aggregate amounts on deposit therein shall not exceed $500,000 at any time.


 


B.                                    Investments, Withdrawals and
Deposits.


 


(i)                                     The Borrower may direct the Account
Holder regarding investment of funds contained in the Company’s Operating
Account in Cash Equivalents (to the extent available in such account),
provided, however, that such direction may be required to be accomplished
through direction to the Agent, who will subsequently direct the Account Holder
regarding the same.  At any time prior to
the occurrence and continuance of an Event of Default, the Borrower shall have
the right to withdraw funds from the Company’s Operating Account to pay Project
Expenses, and general corporate and working capital needs of the Borrower in
accordance with the Development Budget subject to Permitted Deviations or for
purposes of purchasing additional Real Property Collateral, which will be
pledged as collateral to secure the Borrower’s and its Subsidiaries’
Obligations hereunder as required by Section 5.13 hereof.


 


(ii)                                  The Borrower covenants and agrees to
deposit all funds received by the Borrower and its Subsidiaries (whether
resulting from Asset Sales, deposits under Qualified Sales Agreements, club,
golf club and other membership fees or otherwise) within five (5) Business
Days after receipt of such funds into the Company’s Operating Account (it being
acknowledged that deposits to be held by a third party escrow agent pursuant to
Qualified Sales Agreements or otherwise will not be deposited into the
Operating Account until released to Borrower).


 


C.                                    Priority of Distributions. In the event that the Lenders elect
to exercise their remedies under Section 8, the funds contained in the
Company’s Operating Account shall be applied as provided in Section 2.7B.


 


SECTION 4.

REPRESENTATIONS AND WARRANTIES


 


In order to
induce the Lenders to enter into this Agreement and to make the Loans and to
induce other Lenders to purchase participations therein, the Borrower
represents and warrants to each Lender, on the date of this Agreement and on
the Closing Date, that the following statements are true and correct.


 


4.1                               Organization
and Qualification.


 


The Borrower
and its Subsidiaries are duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization.  The Borrower is duly qualified and is
authorized to do business and in good standing as a foreign corporation in
each state or jurisdiction listed on Schedule 4.1 hereto and in all
other states and jurisdictions in which the failure of the Borrower to be so
qualified could reasonably be expected to have a Material Adverse
Effect.  It is hereby acknowledged and
agreed that RIBL is only authorized to do business and in good standing in the
Commonwealth of The Bahamas.  The
Subsidiaries are duly qualified and authorized to do business and in good standing
as foreign corporations in each state and jurisdictions in which failure of the
Subsidiaries to be so qualified could reasonably be expected to have a Material
Adverse Effect.


 


56

















 


4.2                               Power
and Authority.


 


The Borrower
and the other Loan Parties are duly authorized and empowered to enter into,
execute, deliver and perform this Agreement and each of the other Loan
Documents to which each is a party. 
The execution, delivery and performance of this Agreement and each of
the other Loan Documents have been duly authorized by all necessary
action.


 


4.3                               Legally
Enforceable Agreement.


 


This Agreement
is, and each of the other Loan Documents when delivered under this
Agreement will be, a legal, valid and binding obligation of the Borrower and
its Subsidiaries signatories thereto, enforceable against each of them in
accordance with the respective terms of such Loan Documents, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforcement of creditors’
rights or general equitable principals, whether applied in law or equity.


 


4.4                               No
Conflict.


 


After giving
effect to the transactions contemplated by this Agreement and the execution,
delivery and performance by each of the applicable Loan Parties, Sponsor
Guarantor and the Shareholder Pledgors of the Loan Documents, the issuance,
delivery and payment of the Notes and the consummation of the transactions
contemplated by this Agreement do not and will not (i) violate any provision
of any law or any governmental rule or regulation applicable to any Loan
Party, the Sponsor Guarantor or the Shareholder Pledgors, or violate or
contravene the organizational certificate or any other organizational documents
of any Loan Party, the Sponsor Guarantor or the Shareholder Pledgors or any
order, judgment or decree of any court or other Governmental Authority binding
on any Loan Party, the Sponsor Guarantor or the Shareholder Pledgors, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any indenture, agreement, contract or instrument to which
any Loan Party, the Sponsor Guarantor or any Shareholder Pledgor is a party or
by which any of them or any of their property may be bound, except to the
extent such conflict, breach or default could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of any Loan Party, the Sponsor Guarantor or the Shareholder Pledgors
(other than any Liens created under any of the Loan Documents in favor of the
Agent), (iv) require any approval of stockholders, partners or members or any
approval or consent of any Person under any organizational certificate, (v) require
approval or consent of any Person under any indenture, agreement, contract or
instrument to which any Loan Party, the Sponsor Guarantor or any Shareholder
Pledgor is a party or by which any of them or any of their property may be
bound, except for such approvals or consents obtained on or before the Closing
Date or where failure to obtain any such approval or consent would not
reasonably be expected to have a Material Adverse Effect, or (vi) give
rise to any preemptive rights, rights of first refusal or other similar rights
on behalf of any Person under any Applicable Law or any provision of the
organizational documents of any Loan Party, the Sponsor Guarantor or any
Shareholder Pledgor or any Material Contract to which any Loan Party, the
sponsor Guarantor or the any Shareholder Pledgor is a party or by which any
Loan Party, the Sponsor Guarantor or any Shareholder Pledgor is bound.


 


4.5                               Capital
Structure.


 


As of the
Closing Date, the Borrower has no Subsidiaries other than those listed on Schedule
3.1O hereto.  Borrower has not made,
or obligated itself to make, any Restricted Payment except as expressly
permitted by this Agreement.  The
Borrower has not issued any options to purchase, or any rights or warrants to
subscribe for, or any commitments or agreements to issue or sell, or any of its



57

















 


Capital Stock or obligations convertible into, or any powers of
attorney relating to, shares of the Capital Stock of the Borrower, except as
set forth in Schedule 4.5 hereto. 
Except as may be set forth in the Organizational Documents, there are no
outstanding agreements or instruments binding upon the holders of the Borrower’s
Capital Stock relating to the ownership of its Capital Stock.


 


4.6                               Special
Purpose Entity.


 


The Borrower
is in compliance with the special purpose entity requirements of Section 5.16.


 


4.7                               Corporate
Names.


 


During the
5-year period preceding the date of this Agreement and as of the Closing Date,
none of the Borrower, any Subsidiary or any Shareholder Pledgor has been known
as or used any corporate, fictitious or trade names except those listed on Schedule
4.7 hereto.  Except as set forth on Schedule
4.7, none of the Borrower, any Subsidiary or any Shareholder Pledgor
has been the surviving corporation of a merger or consolidation or acquired all
or substantially all of the assets of any Person.


 


4.8                               Business
Locations; Agent for Process.


 


As of the date
hereof, the chief executive office and other places of business of the
Borrower, each Subsidiary and each Shareholder Pledgor are as listed on Schedule
4.8 hereto.  During the 5-year period
preceding the date of this Agreement, neither the Borrower nor any Subsidiary
has had an office, place of business or agent for service of process other than
as listed on Schedule 4.8.  Except
as shown on Schedule 4.8 on the date hereof, no inventory of the
Borrower or any Subsidiary is stored with a bailee, warehouseman or
similar Person, nor is any inventory consigned to any Person.


 


4.9                               Title
to Properties.


 


A.                                    The Borrower and its Subsidiaries
have good and marketable title to and fee simple ownership of or valid and
subsisting leasehold interests in all of its Real Property Assets (including,
without limitation, the Real Property Collateral), and good title (either as
owner or subject to a valid lease, as applicable) to all of the personal
property used in connection with the ownership, maintenance, development or
marketing of the Project (except to the extent disposed of in the Ordinary
Course of Business in compliance with this Agreement), including all property
reflected in the financial statements referred to in Section 4.14 or
delivered pursuant to Section 5.3, in each case of both real and personal
property free and clear of all Liens except for Liens permitted by this
Agreement.  The Borrower has paid or
discharged, and has caused each Subsidiary to pay and discharge, all lawful
claims which, if unpaid, could reasonably be expected to become a Lien against
any properties of the Borrower that is not permitted by this Agreement, except
to the extent such claim is being Properly Contested.  The Liens granted to the Agent pursuant to
the Collateral Documents are First Priority Liens, subject only to those Liens
which are expressly permitted by the terms of this Agreement.


 


B.                                    A conceptual depiction of the
Project as contemplated to be developed as of the date hereof has been
previously delivered to Agent, which Project comprises approximately 431 acres,
and which map identifies the portions of the Project comprising the Real
Property Collateral as of the Closing Date.


 


C.                                    None of the Borrower or any of its
Subsidiaries has received any notice of any special assessment or proceeding
affecting the Project, change in the tax rate or the assessed valuation of
Project or any other changes affecting the taxes, assessments or other charges
with respect to the Project which could reasonably be expected to have a
Material Adverse Effect.  There are no
special assessment


 


58

















 


districts, or plans for the same, or for any
other scheme that would involve the imposition of taxes other than those
disclosed on Schedule 4.9C relating to the Project.  There are no zoning or other land-use
regulation proceedings or change or proposed change in any Applicable Laws or
the Entitlements which could reasonably be expected to have a Material Adverse
Effect.


 


4.10                        Priority
of Liens; UCC-1 Financing Statements.


 


As of the
Closing Date, all of the security interests and Liens in the Collateral granted
under the Collateral Documents to secure the Obligations to the Agent and the
Lenders (i) will constitute valid and perfected security interests under
the UCC (to the extent liens can be created under the UCC) and Applicable Law,
and (ii) will be First Priority, except for Permitted Encumbrances.


 


4.11                        No
Subordination.


 


There is no
agreement, indenture, contract or instrument to which the Borrower or any of
its Subsidiaries is subject or by which the Borrower or its Subsidiaries may be
bound that requires the subordination in right of payment of any of Borrower’s
obligations under this Agreement to any other obligations of Borrower, except
any such agreement related to any Permitted Encumbrance.


 


4.12                        Intentionally
Deleted.


 


4.13                        Indebtedness.


 


The Borrower
and its Subsidiaries have no Indebtedness outstanding except for Indebtedness
permitted pursuant to Section 6.1.


 


4.14                        Financial
Condition; Projections.


 


A.                                    Financial
Statements.  All
financial statements hereafter delivered pursuant to Sections 5.3(i) and
(ii) when delivered will be prepared on a cash basis and Section 5.3(iii) when
delivered will be prepared in conformity with GAAP and cash and, in each case,
when delivered will fairly present), in all material respects, the financial
position (on a consolidated basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for each
of the periods then ended, subject, in the case of any unaudited financial
statements, to changes resulting from normal year-end adjustments and the
absence of footnote disclosure required in accordance with GAAP, as applicable.  Neither the Borrower nor any of its
Subsidiaries have any Contingent Obligation, contingent liability or liability
for Taxes, long-term lease or unusual forward or long-term commitment that is
not reflected in the financial statements referred to in the preceding clauses
of this Section, the most recent financial statements delivered pursuant to Section 5.3
or the notes thereto (to the extent required to be so disclosed in accordance
with GAAP) and which in any such case is material in relation to the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.


 


B.                                    Development Budget.  On and as of the Closing Date, the
Development Budget of the Borrower and its Subsidiaries for the period from the
Closing Date through the Fiscal Year ending December 31, 2014 previously
delivered to the Lenders were prepared in good faith based on assumptions and
estimates the management of the Borrower considered reasonable at the time the
Development Budget was prepared, it being recognized by the Agent and the
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results and that the differences may
be material.


 


59

















 


4.15                        Disclosure.


 


The
representations and warranties of the Borrower and its Subsidiaries contained
in the Loan Documents and the information contained in the other documents,
certificates and written statements furnished to any of the Agent or the
Lenders by or on behalf of the Borrower or any of its Subsidiaries for use in
connection with the transactions contemplated by this Agreement or any other
Transaction Document, when taken together, do not contain any untrue statement
of a material fact or omit to state a material fact (known to the Borrower or
the applicable Subsidiaries, in the case of any document not furnished by it)
necessary in order to make the statements contained herein or therein taken as
a whole not misleading in any material respect in light of the circumstances in
which the same were made.  There is no
fact known to the Borrower that has had, or could reasonably be expected to
have, a Material Adverse Effect and that has not been disclosed herein or in
such other documents, certificates and statements furnished to the Lenders for
use in connection with the transactions contemplated hereby.


 


4.16                        Solvent
Financial Condition.


 


RIBL and each
of its Subsidiaries, on a consolidated basis, is now Solvent and, after giving
effect to the Loans to be made hereunder and the consummation of the
transactions contemplated by this Agreement, RIBL and each of its Subsidiaries,
on a consolidated basis, will be Solvent.


 


4.17                        Surety
Obligations.


 


Except as set
forth on Schedule 4.17 hereto, on the date hereof, the Borrower and its
Subsidiaries are not obligated as surety or indemnitor under any surety or
similar bond or other contract issued or entered into any agreement to assure
payment, performance or completion of performance of any undertaking or
obligation of any Person.


 


4.18                        Taxes.


 


The FEIN of
the Borrower and each of its Subsidiaries is as shown on Schedule 4.18  hereto. 
The Borrower and each of its Subsidiaries has filed all foreign,
federal, state, local and other material Tax returns and other reports it is
required by law to file and has paid, or made provision for the payment of, all
Taxes payable by it, or imposed upon its income and properties as and when such
Taxes are due and payable, except to the extent being Properly Contested.  The provision for Taxes on the books of the
Borrower and each of its Subsidiaries are adequate for all years not closed by
applicable statutes, and for its current Fiscal Year.  The Borrower is not aware of any proposed
material Tax assessment against any Loan Party.


 


4.19                        Brokers.


 


Except as set
forth on Schedule 4.19, there are no claims against the Borrower or
amounts owing or to be owed by the Borrower for brokerage commissions, finder’s
fees or investment banking fees in connection with the transactions
contemplated by this Agreement, and the Borrower hereby indemnifies the Agent
and the Lenders against, and agrees that it will hold the Agent and the Lenders
harmless from, any claim, demand or liability for any such commission or broker’s
or finder’s fees alleged to have been incurred in connection herewith or
therewith and any expenses (including reasonable fees, expenses and
disbursements of counsel) arising in connection with any such claim, demand or
liability.


 


60

















 


4.20                        Intellectual
Property.


 


Except as set
forth on Schedule 4.20 hereto, the Borrower and each of its Subsidiaries
owns or has the lawful right to use all Intellectual Property
necessary for the present and planned future conduct of its business
without, to Borrower’s Knowledge, any conflict with the rights of others
in any material respect; there is no objection to, or pending (or, to the
Borrower’s Knowledge, threatened) claim with respect to, the Borrower’s or any
of its Subsidiaries’ right to use any such Intellectual Property and to
Borrower’s Knowledge, no grounds exist for challenge or objection thereto; and,
except as may be disclosed on Schedule 4.20 hereto, as of the Closing
Date none of the Borrower nor any of its Subsidiaries pay any royalty or other
compensation to any Person for the right to use any Intellectual Property
(other than with respect to off-the-shelf or prepackaged software).  All such patents, trademarks, service marks,
tradenames, copyrights, licenses and other similar rights are listed on Schedule
4.20  hereto, to the extent
they are registered under any Applicable Law, application for registration have
been made under any Applicable Law or are otherwise material to the Borrower’s
business.


 


4.21                        Governmental
Authorization.


 


The Borrower
and each of its Subsidiaries has, and is in good standing with respect to, all
Governmental Authorizations necessary to continue to conduct its business as
heretofore or proposed to be conducted by it and to own or lease and operate
its properties as now owned or leased by it, except where the failure to have,
or be in good standing with respect to, such Governmental Authorization could
not reasonably be expected to have a Material Adverse Effect, or if the
Borrower or any Subsidiary, as applicable, does not yet have certain
Governmental Authorizations not yet required for the development work currently
commenced, then the Borrower does not have any reason to believe that such
Governmental Authorizations will not be granted as and when necessary to
develop the Project as contemplated by the Development Milestones set forth in Section 5.22,
or for matters other than as set forth in Section 5.22 as contemplated by
the Development Budget and the Heads of Agreement.


 


4.22                        Compliance
with Laws.


 


The Borrower, each of its
Subsidiaries, the Project (including Borrower’s development activities
thereon), and the Master Plans are in compliance in all material respects with,
the provisions of all covenants, conditions, and restrictions contained in any
instruments, either of record or known to the Borrower or any of its
Subsidiaries, at any time in force affecting any Real Property Asset or any part
thereof, all Applicable Laws, Prescribed Laws and the Heads of Agreement, and
neither Borrower nor any Subsidiary has received any written citation, notice
or order of noncompliance under any such covenant, condition, or
restriction, Applicable Law, Prescribed Laws or the Heads of Agreement, which,
in the case of such a covenant, condition or restriction, Applicable Law or the
Heads of Agreement, could reasonably be expected to have a Material Adverse
Effect, except as set forth on Schedule 4.22.


 


4.23                        Ground
Leases.


 


With respect
to each Ground Lease in existence as of the Closing Date, or if no such Ground
Leases are in existence as of the Closing Date, then only after the execution
of such a Ground Lease:


 


A.                                    Each
Ground Lease is in full force and effect and has not been Modified, amended,
supplemented or extended in any manner whatsoever except as previously
disclosed in writing to Agent, (ii) there are no defaults under any Ground
Lease by the Borrower or, to Borrower’s knowledge, landlord thereunder, and the
Borrower has not received written notice of, nor to Borrower’s Knowledge has
any event occurred which, but for the passage of time, or notice, or both would
constitute a default under such Ground Lease, (iii) all rents, additional
rents and other sums due and payable under each Ground Lease 


 


61

















 


have been paid in full, and (iv) Borrower has not commenced or
taken, nor has Borrower received any written notice that Landlord has commenced
or taken, any action for the purpose of terminating such Ground Lease.


 


B.                                    Each Ground Lease or a memorandum
thereof (including any material amendment) has been duly recorded and there has
not been any material change in the terms of any Ground Lease (as it may have
been amended) since the recordation of the Ground Lease or the most recent
memorandum or amendment thereof;


 


C.                                    Except for Permitted Encumbrances,
the Borrower’s interest in the Ground Leases are not subject to any Liens
superior to, or of equal priority with, the applicable Mortgage;


 


D.                                    The Borrower’s interest in the
Ground Lease is mortgageable to the Agent without the consent of the lessor
thereunder (or if such consent is required, it has been obtained as of the
Closing Date) and the Borrower is permitted to grant the Mortgage encumbering
the Borrower’s leasehold estate under the Ground Lease without the consent of
the lessor thereunder (or if such consent is required, it has been obtained as
of the Closing Date) and further in the event of foreclosure of the Agent’s
security interest granted pursuant to the Mortgage, Agent shall have the right
to further assign its interest under the Ground Lease without the need to
obtain the consent of the lessor thereunder;


 


E.                                      The Ground Lease requires the lessor
thereunder to use best efforts to contemporaneously give notice of any default
by the Borrower to Agent and the Ground Lease further provides that notice of
termination given under the Ground Lease is not Effective against the Agent
unless a copy of the notice has been delivered to Lender in the manner
described in the applicable Ground Lease;


 


F.                                      Agent is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the Borrower under the Ground Lease) to cure any default under
the Ground Lease, which is curable after the receipt of notice of any default
before the lessor thereunder may terminate such Ground Lease as to the Agent’s
interest therein; and


 


G.                                    The Ground Lease requires the lessor
to enter into a new lease with a leasehold mortgagee upon termination of the
applicable Ground Lease for any reason, other than the expiration of the term
of the lease.


 


4.24                        Litigation.


 


Except as set
forth on Schedule 4.24  hereto,
there are no actions, suits, proceedings or investigations pending or, to
the Borrower’s Knowledge, threatened on the date hereof against or affecting
the Borrower or any of its Subsidiaries, or the business, operations,
properties, prospects, profits or condition of the Borrower or any of its
Subsidiaries, (i) which relate to any of the Loan Documents or any of the
transactions contemplated thereby or (ii) which could reasonably be
expected to have a Material Adverse Effect. 
Borrower has not received written notice of any default with respect
to any order, writ, injunction, judgment, decree or rule of any court,
Governmental Authority or arbitration board or tribunal, which default could
reasonably be expected to have a Material Adverse Effect.


 


4.25                        No
Defaults.


 


No event has
occurred and no
condition exists which would, upon or after the execution and delivery of this
Agreement or the Borrower’s performance hereunder, constitute a
Default or an Event of Default.  Neither
the Borrower nor any of its Subsidiaries is in default, and no event has
occurred and no condition exists which constitutes or which with the passage of
time or the giving of notice or both would 


 


62

















 


constitute a default, under any Material Contract or in the payment of
any Indebtedness of the Borrower or a Subsidiary to any Person, except for any
event (or series of events) which would not be reasonably expected to have a
Material Adverse Effect.


 


4.26                        Leases.


 


Schedule 4.26  hereto is a complete listing of each
Capital Lease and Operating Lease of the Borrower and its Subsidiaries on the
date hereof that constitutes a Material Contract.  The Borrower and each of its Subsidiaries is
in compliance, in all material respects, with all of the terms of each of
its respective Capital Leases and Operating Leases, except to the extent
that failure to so be in compliance is not reasonably expected to have a
Material Adverse Effect.


 


4.27                        Employee
Benefit Plans.


 


A.                                    Except as disclosed on Schedule
4.27 hereto, neither the Borrower nor any of its ERISA Affiliates
maintains, contributes or participates in or may incur any liability under any
Pension Plan as of the date hereof.  The
Borrower and each ERISA Affiliate are in compliance in all material respects
with all applicable provisions and requirements of ERISA and the Internal
Revenue Code with respect to each Pension Plan and Borrower Pension Plan, and
have performed all their obligations under each Pension Plan and Borrower
Pension Plan, except those where failure to perform such obligations could not
reasonably be expected to have a Material Adverse Effect.  With respect to each Pension Plan and
Borrower Pension Plan, no material liability to the PBGC (other than required
premium payments), the Internal Revenue Service, any such Pension Plan or
Borrower Pension Plan or any trust established under Title IV of ERISA has
been, or is expected by the Borrower or any ERISA Affiliate to be, incurred by
the Borrower or any ERISA Affiliate.


 


B.                                    No ERISA Event has occurred or could
reasonably be expected to occur which has resulted or is reasonably likely to
result in any material liability to the Borrower.  No fact or situation that could reasonably be
expected to have a Material Adverse Effect exists with respect to any Pension
Plan or Borrower Pension Plan.


 


C.                                    Except as could not reasonably be
expected to have a Material Adverse Effect, no Borrower nor any of its
Subsidiaries maintains or contributes to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) that provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employees of the Borrower or any of its Subsidiaries other than as
required under Section 4980B of the Internal Revenue Code or Part 6
of Subtitle B of Title I of ERISA.


 


D.                                    Except as could not reasonably be
expected to have a Material Adverse Effect, no Pension Plan has any “unfunded
benefit liability” as defined in Section 4001(a)(18) of ERISA (but
excluding from the definition of “current value” of “assets” of such Pension
Plan, accrued but unpaid contributions).


 


E.                                      Except as could not reasonably be
expected to have a Material Adverse Effect, the Borrower and each ERISA
Affiliate has complied with the requirements of Section 515 of ERISA with
respect to each Multiemployer Plan and is not in “default” (as defined in Section 4219(c)(5) of
ERISA) with respect to payments to a Multiemployer Plan.  Neither the Borrower nor any of its ERISA
Affiliates has incurred or could reasonably be expected to incur any withdrawal
liability in connection with a Multiemployer Plan.


 


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F.                                      The representation and warranties
set forth in this Section 4.27 are subject to those exceptions, if
any, set forth on Schedule 4.27.


 


4.28                        Labor
Relations.


 


Except as
described on Schedule 4.28  hereto,
neither the Borrower nor any of its Subsidiaries is a party to any collective
bargaining agreement on the date hereof. 
On the date hereof, there are no material grievances, disputes or
controversies with any union or any other organization of the Borrower and its
Subsidiaries.


 


4.29                        Not a
Regulated Entity.


 


No Loan Party is (i) an “investment company” or a “person directly
or indirectly controlled by or acting on behalf of an investment company”
within the meaning of the Investment Company Act of 1940; (ii) a “holding
company,” or a “subsidiary company” of a “holding company,” or an “affiliate”
of a “holding company” or of a “subsidiary company” of a “holding company,”
within the meaning of the Public Utility Holding Company Act of 2005; or (iii) subject
to regulation under the Federal Power Act, the Interstate Commerce Act, any
public utilities code or any other Applicable Law regarding its authority to
incur Indebtedness.


 


4.30                        Margin
Stock.


 


Neither the
Borrower nor any of its Subsidiaries is engaged, principally or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.


 


4.31                        No
Material Adverse Change.


 


Since September 30,
2007, no event or change has occurred that has caused or evidences or could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.


 


4.32                        Environmental
Matters.


 


Except as
disclosed
on Schedule 4.32 hereto:


 


(i)                                     The Borrower and each of its
Subsidiaries (including, without limitation, all operations and conditions at
or in the Real Property Assets) are in compliance with all applicable
Environmental Laws (which compliance includes, but is not limited to, the possession
by the Borrower and each of its Subsidiaries of all permits and other
Governmental Authorizations required under applicable Environmental Laws, and
compliance with the terms and conditions thereof), except where failure to be
in compliance could not reasonably be expected to have a Material Adverse
Effect.  Neither the Borrower nor any of
its Subsidiaries has received any written communication, whether from a
Governmental Authority, citizens group, employee or otherwise, alleging that
the Borrower, or any of its Subsidiaries, or any tenant or occupant of each
Project is not in such compliance, and there are no past or present actions,
activities, circumstances, conditions, events or incidents that could
reasonably be expected to prevent or interfere with such compliance in the
future, except where failure to be in compliance in the future could not
reasonably be expected to have a Material Adverse Effect.


 


(ii)                                  There is no Environmental Claim
pending or, to the Borrower’s Knowledge, threatened against the Borrower or any
of its Subsidiaries or against any Person whose liability for any Environmental
Claim the Borrower or any of its Subsidiaries has retained or assumed


 


64

















 


either
contractually or by operation of law, in each such case which, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


 


(iii)                               From and after the date on which the
Borrower acquired title to the Real Property Collateral, there have been and
are no past or present actions, activities, circumstances, conditions, events
or incidents, including, without limitation, the Release or presence of any
Hazardous Material, and prior to the date on which the Borrower acquired title
to the Real Property Collateral, to the Borrower’s Knowledge, there have been
and are no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the Release or presence of
any Hazardous Material, which, in each case, could reasonably be expected to
form the basis of any Environmental Claim against the Borrower or any of its
Subsidiaries, or against any Person whose liability for any Environmental Claim
the Borrower or any of its Subsidiaries has retained or assumed either contractually
or by operation of law, in each such case which could reasonably be expected to
have a Material Adverse Effect.


 


(iv)                              The Borrower and its Subsidiaries
have not, and to the Borrower’s Knowledge, no other Person has placed, stored,
deposited, discharged, buried, dumped or disposed of Hazardous Materials on,
beneath or adjacent to any property currently or formerly owned, operated or
leased by the Borrower or any of its Subsidiaries, in each case, which,
individually or in the aggregate, which could reasonably be expected to have a
Material Adverse Effect.


 


(v)                                 No Lien in favor of any Person
relating to or in connection with any Environmental Claim has been filed or has
been attached to any Real Property Asset unless being Properly Contested.


 


(vi)                              Without in any way limiting the
generality of the foregoing, except as disclosed in the environmental reports
provided to the Agent prior to the Closing Date and as would not reasonably be
expected to have a Material Adverse Effect, none of the Real Property Assets
contain any: underground storage tanks; asbestos; polychlorinated biphenyls;
underground injection wells; radioactive materials; or septic tanks or waste
disposal pits in which process wastewater or any Hazardous Materials have been
discharged or disposed.


 


(vii)                           The Project is (and at all relevant
times has been) in compliance in all material respects with the Environmental
Management Plan.


 


(viii)                        All factual information provided by
the Borrower to the consultant responsible for preparing the Environmental
Impact Assessment is true and correct in all material respects.


 


4.33                        Material
Contracts.


 


A.                                    [Intentionally deleted.]


 


B.                                    As of the Closing Date, Schedule
4.33 sets forth a true, correct and complete list of all Material
Contracts.  The Borrower has heretofore
furnished to the Agent a true, correct and complete copy of each Material
Contract and all Modifications thereto. 
The Material Contracts have not been amended, modified, supplemented or
clarified except as set forth on Schedule 4.33 and as otherwise
permitted by this Agreement.


 


65

















 


C.                                    Except as otherwise permitted by
this Agreement, each Material Contract is in full force and effect and
constitutes a legal, valid and binding obligation of the Borrower or its
relevant Subsidiaries, as the case may be, and, to the Borrower’s Knowledge,
each other party thereto.


 


D.                                    Neither Borrower nor any of its
Subsidiaries is in default or breach beyond the expiration of any applicable
notice or cure period under any such Material Contract, which default could be
reasonably expected to have a Material Adverse Effect.  Except as set forth on Schedule 4.33
(as may be updated from time to time), the Borrower has no knowledge that any
other party is in default or breach of any such Material Contract, or the
existence of any conditions which, with the giving of notice or the passage of
time, or both, could constitute such a material default or breach, which
default or breach could be reasonably expected to have a Material Adverse
Effect.  None of the rights and
privileges under the Material Contracts inuring to any Borrower or any of its
Subsidiaries has lapsed, which could reasonably be expected to have a Material
Adverse Effect or jeopardize the Borrower’s ability to develop the Project or
sell portions of the Project as contemplated by the Development Budget, and no
Governmental Authority nor any other party has any right as of the Closing Date
to terminate any of the Material Contracts.


 


E.                                      The Borrower and its Subsidiaries
have paid all fees, made all dedications, posted all bonds and other security,
completed all improvements and otherwise performed, in all material respects,
all obligations required to be performed by the applicable Borrower and its
Subsidiaries prior to the Closing Date under the Material Contracts in
accordance therewith.


 


F.                                      Except as set forth on Schedule
4.33, all of the Material Contracts to which a Loan Party is a party are
assignable to the Agent for the benefit of the Lenders by their terms (or any
successor-in-interest to the applicable Loan Party) as contemplated by the
Security Agreement.


 


4.34                        Utilities.


 


Borrower is
not aware of any facts or circumstances which could reasonably be expected to
materially adversely affect Borrower’s ability to obtain all water, sewer, gas,
electric, telephone and drainage facilities and all other utilities required by
law or for the use, development and operation of the Project as and when
necessary to permit Borrower to achieve the Development Budget.


 


4.35                        Licenses
and Permits.


 


The Borrower
has obtained (or caused to be obtained) all material Licenses Permits,
memberships, franchises, contracts, approvals, easements and rights of way
required or necessary from any Governmental Authority having jurisdiction over
the Project, or from private parties, required or necessary for the then
current stage of development of the Project: (i) as contemplated by the
Master Plan, (ii) in compliance with Applicable Laws, (iii) as and
when necessary to achieve the Development Milestones set forth in Section 5.22,
or for matters other than as set forth in Section 5.22 as contemplated by
the Development Budget and the Heads of Agreement by their respective
deadlines, and (iv) to ensure free and unimpeded vehicular and pedestrian
ingress to and egress from the Project. Borrower expects to be able to obtain
and has no reason to believe it will not obtain all Licenses Permits,
memberships, franchises, contracts, approvals, easements and rights of way as
and when necessary to develop the Project as contemplated by the Development
Milestones set forth in Section 5.22, or for matters other than as set
forth in Section 5.22 as contemplated by the Development Budget and the
Heads of Agreement by their respective deadlines and is not aware of any
moratoria, potential actions, challenges, proceedings by any third party or
Governmental Authority which could reasonably be expected to interfere with
Borrower’s ability to obtain all such Licenses Permits, memberships,
franchises, contracts, approvals, easements and rights of way, except with
respect to any such License Permits, membership, franchise,


 


66

















 


contract, approval, easement and/or right of way the failure of which
to obtain could not reasonably be expected to have a Material Adverse Effect.


 


4.36                        Entitlements.


 


Subject to the
conditions contained therein, all of the Entitlements have been obtained and
are valid and in full force and effect as necessary for the then current stage
of the development of the Project (i) as contemplated by the Master Plan, (ii) in
compliance with Applicable Laws, (iii) as and when necessary to achieve
the Development Milestones set forth in Section 5.22, or for matters other
than as set forth in Section 5.22 as contemplated by the Development
Budget and the Heads of Agreement by their respective deadlines, and (iv) to
ensure free and unimpeded vehicular and pedestrian ingress to and egress from
the Project.  To the extent not obtained
as of the Closing Date, the Borrower expects to be able to obtain and has no
reason to believe it will not obtain all Entitlements as and when necessary to
develop the Project as contemplated by the Development Milestones set forth in Section 5.22,
or for matters other than as set forth in Section 5.22 as contemplated by
the Development Budget and the Heads of Agreement by their respective
deadlines. Subject to the terms thereof, the Entitlements permit the
development and sale of 150 to 220 Residential Units and Unimproved Lots, the
Hotel, Spa, Marina and Golf Course.  All
the Entitlements are vested in the Borrower, and the consummation of this
transaction shall not affect the same. 
There is no uncured default or breach of any Entitlement, which could
reasonably be expected to have a Material Adverse Effect.  The Borrower is not aware of any moratoria,
potential actions, challenges, proceedings by any third party or Governmental
Authority with respect to any Entitlements which could reasonably be expected
to interfere with Borrower’s ability to obtain all such Entitlements to the
extent not yet obtained except with respect to which Entitlement the failure of
which to obtain could not reasonably be expected to have a Material Adverse
Effect.  The Borrower has not received notice
of any changes to any of the Entitlements which could reasonably be expected to
have a Material Adverse Effect or jeopardize the Borrower’s ability to develop
the Project or sell the remaining Residential Units and Unimproved Lots as
contemplated by the Development Budget. 
All of the documents evidencing Borrower’s rights and obligations under
the Entitlements are identified on Schedule 4.36 annexed hereto and made
a part hereof (collectively, the “Entitlement Documents”),
and there are no other documents relating to the Entitlements needed to develop
the Project in accordance with the Development Budget other than those set
forth or generally described on Schedule 4.36.


 


4.37                        Intentionally
Deleted.


 


4.38                        Insurance
Coverage.


 


Schedule 4.38
sets forth a true and complete list of all property, casualty, public
liability, business interruption, workmen’s compensation and other insurance
policies currently carried by any of Borrower and its Subsidiaries as of the
Closing Date.  Such policies are in full
force and effect, constitute all insurance required to be maintained under, and
comply with all requirements of, Section 5.6 hereof and all premiums have
been paid with respect thereto through the date hereof to the extent due and
payable.


 


4.39                        Master
Declarations.


 


Schedule 4.39
sets forth a true and complete list of all Master Declarations, if any.  With respect to each Master Declaration in
existence as of the Closing Date, or if no such Master Declarations are in
existence as of the Closing Date, then only after the execution of such a
Master Declaration: (i) the Master Declarations are in full force and
effect; (ii) there is no uncured material default or breach of any Master
Declaration; (iii) the Borrower is not aware of any defects or potential
actions, challenges, proceedings by any third party or Governmental Authority
which could reasonably be expected to have a Material Adverse Effect on any
Master Declaration; and (iv) the Master Declarations provide sufficient 


 


67

















 


easements, covenants and restrictions to permit the shared use of the
Project as contemplated by the Master Plans and the Development Budget.


 


SECTION 5.

AFFIRMATIVE COVENANTS


 


The Borrower
covenants and agrees that, until payment in full of all of the Loans and other
Obligations, the Borrower shall and shall cause each of its Subsidiaries to:


 


5.1                               Visits
and Inspections.


 


Permit
representatives of the Agent, from time to time, as often as may be reasonably
requested, but only during normal business hours and (except when a Default or
Event of Default exists) upon reasonable prior written notice to the
Borrower, to visit and inspect the properties of the Borrower, conduct
appraisals of the Borrower’s properties, inspect, audit and make extracts from
the Borrower’s books and records, and discuss with its officers, its
employees and its independent accountants, the Borrower’s business,
financial condition, business prospects and results of operations, provided
that only one such visit and inspection per twelve (12) month period shall be
at the Borrower’s cost and expense, except in connection with a Modification of
this Agreement and during the continuance of an Event of Default when the
foregoing limitation shall not apply. 
The Agent shall also be entitled to contact any Governmental Authority
if Agent has a reasonable basis to believe that Borrower may be in violation of
any requirement of such Governmental Authority, with respect to the Project and
the status of the Entitlements with reasonable advance written notice to the
Borrower.  The Agent shall not
participate in any meeting with Governmental Authorities or Borrower’s
independent accountants concerning the Project without the participation of
Borrower (except during the continuance of an Event of Default, when Borrower
shall be permitted, but not required to participate).  Representatives of the Borrower (including
the Borrower’s accountants) shall be authorized to accompany the Agent (or
representative thereof) on any visit or inspection of the Real Property
Collateral, but such authorization shall in no manner be deemed to be a
requirement or condition of the Agent’s visits or inspections, and to the
extent any of the Borrower’s representatives accompany the Agent on any visit
or audit, such Persons shall in no manner hinder or delay the audits or
inspections of the Agent. 
Representatives of each Lender shall be authorized to accompany the
Agent on each such visit and inspection and to participate with the Agent
therein, but at their own expense, unless a Default or Event of Default
exists.  Neither the Agent nor any Lender
shall have any duty to make any such inspection and shall not incur
any liability by reason of its failure to conduct or delay
in conducting any such inspection.


 


5.2                               Notices.


 


Notify the
Agent and Lenders in writing, promptly after the Borrower’s obtaining knowledge
or receiving copies of the following:


 


 


(i)                                     any labor dispute to which any of
the Borrower or its Subsidiaries may become a party, any strikes or
walkouts relating to any of its property or facilities, and the expiration of
any labor contract to which it is a party or by which it is bound, in each
case, which could reasonably be expected to have a Material Adverse Effect;


 


(ii)                                  any default by any of the Borrower
or its Subsidiaries under, or termination of, any Material Contract or any
note, indenture, loan agreement, mortgage, lease, deed, guaranty or other
similar agreement relating to any Indebtedness of such Person exceeding
$2,500,000;


 


68
















 


(iii)          any judgment against any of the Borrower or its
Subsidiaries in an amount exceeding $2,500,000;


 


(iv)          any violation or asserted violation by any of the
Borrower or its Subsidiaries of any Applicable Law (including ERISA, OSHA,
FLSA, or any Environmental Laws), the adverse resolution of which could
reasonably be expected to have a Material Adverse Effect or result in liability
of the Borrower or Subsidiaries in an amount in excess of $2,500,000;


 


(v)           any Release on any property owned or occupied by any
of the Borrower or its Subsidiaries if such Release could reasonably be
expected to require remedial action to correct the presence of Hazardous
Materials in, around, or under the Real Property Collateral;


 


(vi)          the discharge of the Borrower’s independent
accountants or any withdrawal or resignation by such independent
accountants from their acting in such capacity;


 


(vii)         the opening of any new office or place of business of
Borrower or its Subsidiaries;


 


(viii)        copies of any Tax assessments; and


 


(ix)           such other information and data with respect to the
Borrower or any of its Subsidiaries as from time to time may be reasonably
requested by the Agent or any Lender (through Agent).


 


5.3          Financial Statements
and Other Reports.


 


The Borrower will maintain, and
cause each of its Subsidiaries to maintain, proper books and records including
a system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP.  The Borrower will deliver to
the Agent and to each Lender:


 


(i)            Monthly Reports:  as soon as
available and in any event within thirty (30) days after the end of each Fiscal
Month end, a consolidated statement of cash flows and consolidated statement of
income prepared on a cash basis, sales and marketing data with respect to the
Project and a progress report setting forth in detail reasonably satisfactory
to Agent the progress of construction at the Project including, without
limitation, compliance with the Development Budget, in each case, for such
Fiscal Month;


 


(ii)           Quarterly Financials: 
as soon as available and in any event within forty-five (45) days after
the end of each Fiscal Quarter (other than the fourth Fiscal Quarter of any
Fiscal Year) commencing with the Fiscal Quarter ending September 30, 2007,
the consolidated balance sheet of the Borrower and its Subsidiaries, as of the
end of such Fiscal Quarter and the related consolidated statement of income and
consolidated statement of cash flows for such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth, in the case of the statement of income only and
commencing with the Fiscal Quarter ending June, 2008, in comparative form the
corresponding figures for the corresponding periods of the previous fiscal year
and the corresponding figures from the Development Budget for the current
Fiscal Year and the Development Budget in effect on the Closing Date, all
prepared on a cash basis, which statement shall include narrative explanations
of deviations between actual numbers and projected results, in reasonable
detail and, in each case, certified by the chief financial officer or treasurer
of the Borrower that they 


 


69

















 


fairly
present, in all material respects, the consolidated financial condition as at
the dates indicated and the consolidated results of operations and cash flows
for the periods indicated, subject to changes resulting from normal year-end
adjustments;


 


(iii)          Year-End Financials: 
as soon as available and in any event within ninety (90) days after the
end of each Fiscal Year, the consolidated balance sheets of the Borrower and
its Subsidiaries, as of the end of such Fiscal Year and the related
consolidated statement of income and consolidated statement of cash flows for
such Fiscal Year, setting forth, in the case of the statement of income only,
in comparative form, commencing with the 2008 Fiscal Year, the corresponding figures
for the previous fiscal year and the corresponding figures from the Development
Budget for the Fiscal Year covered by such financial statements and the
Development Budget in effect on the Closing Date (but only through the 2009
Fiscal Year reporting period), all prepared in accordance with GAAP and on a
cash basis, which statement shall include narrative explanations of deviations
between actual numbers and projected results in reasonable detail and, in each
case, certified by the chief financial officer of the Borrower that they fairly
present, in all material respects, the financial condition of the entities
covered thereby as at the dates indicated and the results of their operations
and their cash flows for the periods indicated;


 


(iv)          Officer’s Certificates: 
together with each delivery of financial statements of the Borrower and
its Subsidiaries pursuant to subdivisions (ii) and (iii) above, an
Officer’s Certificate of the Borrower stating that the signer has reviewed the
terms of this Agreement and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and condition of
the Borrower and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signer did not
have knowledge of the existence as at the date of such Officer’s Certificate,
of any condition or event that constitutes a Default or Event of Default, or,
if any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action the Borrower has taken, is taking
and proposes to take with respect thereto.


 


(v)           Reconciliation Statements: 
if, as a result of any change in accounting principles and policies from
those used in the preparation of the financial statements referred to in Section 4.14,
the consolidated financial statements delivered pursuant to subdivisions (i), (ii) or
(iii) of this Section 5.3 will differ in any material respect from
the consolidated financial statements that would have been delivered pursuant
to such subdivisions had no such change in accounting principles and policies
been made, then together with each delivery of financial statements pursuant to
subdivision (i), (ii) or (iii) of this Section 5.3 following
such change, a written statement of the chief accounting officer or chief
financial officer or treasurer of the Borrower setting forth the differences
which would have resulted if such financial statements had been prepared
without giving effect to such change, if reasonably requested by the Agent;


 


(vi)          Deliberately Omitted.


 


(vii)         Deliberately Omitted.


 


(viii)        Future Approvals:  promptly upon
receipt thereof and at any time upon request of Agent, copies of any written
Entitlements, approvals or consents obtained by the Borrower or any of its
Subsidiaries after the Closing Date in connection with the development of the
Project;


 


70

















 


(ix)           Casualty:  promptly upon
the occurrence of any casualty or condemnation involving any Real Property
Asset of the Borrower or any of its Subsidiaries involving a loss that could
reasonably be expected to exceed $100,000, written notice with sufficient detail
describing the casualty or condemnation and the extent to which any losses
resulting from such casualty or condemnation will be covered by insurance or a
condemnation award, as the case may be;


 


(x)            Deliberately Omitted.


 


(xi)           Updates to Development Budget: 
together with each delivery of financial statements pursuant to
subdivisions (ii) and (iii) above, (A) an update to the
Development Budget providing a reasonably detailed line item accounting of what
amounts on the Development Budget have been incurred and actually paid and (B) a
comparison of such update to the Development Budget in effect as of the Closing
Date through the Fiscal Quarter ending in June, 2009 and the Development Budget
in effect immediately prior to such update, provided that in the event
of any amendment, modification or adjustment to the Development Budget that
reflects (X) an aggregate increase in the total Project Expenses of more
than the Permitted Deviation, (Y) the purchase of additional real property
(whether or not intended to be incorporated into the Project) or (Z) a
material change in the nature or scope of the Project, the Borrower shall
deliver, together with such update, an explanation of the good faith
assumptions on which such forecasts are based, and any such amendment
modification or adjustment shall be subject to the approval of the Agent, such
approval not to be unreasonably withheld.


 


(xii)          Events of Default, etc.: 
promptly upon any Responsible Officer of the Borrower obtaining
knowledge (a) of any condition or event that constitutes a Default or an
Event of Default (it being understood and agreed that the Borrower shall
deliver the Officer’s Certificate required hereunder within 3 days after the
date on which, to Borrower’s Knowledge, such condition or event has occurred), (b) that
any Person has given any written notice to the Borrower or any of its
Subsidiaries or taken any other action that could reasonably be expected to
have a Material Adverse Effect on the Borrower or any of its Subsidiaries with
respect to a claimed default or event or condition of the type referred to in Section 7.6,
or (c) of the occurrence of any event or change that has caused or
evidences or could be reasonably expected to cause, either in any case or in
the aggregate, a Material Adverse Effect, an Officer’s Certificate specifying
the nature and period of existence of such condition, event or change, or
specifying the written notice given or action taken by any such Person and the
nature of such claimed Default, Event of Default, default, event or condition,
and what action the Borrower (or applicable Subsidiary) has taken, is taking
and proposes to take with respect thereto;


 


(xiii)         Litigation or Other Proceedings: 
(a) promptly upon any Responsible Officer of the Borrower obtaining
knowledge of (X) the institution of, or written threat of, any action,
suit, proceeding (whether administrative, judicial or otherwise), Environmental
Claim, governmental investigation or arbitration against or affecting the
Borrower or any of its Subsidiaries or any property of the Borrower or any of
its Subsidiaries (collectively, “Proceedings”) not previously
disclosed in writing by the Borrower to the Lenders or (Y) any material
development in any Proceeding that, in any case:


 


(a)           could reasonably be expected to have a Material
Adverse Effect; or


 


(b)           exposes, or in the case of multiple Proceedings,
expose such Persons, in the Borrower’s reasonable judgment, to liability in an
amount aggregating $2,500,000 or more and is or are not covered by insurance;
or


 


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(c)           seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of, the transactions
contemplated hereby;


 


written
notice thereof together with such other information as may be reasonably
available to the Borrower and as the Borrower and their counsel shall
reasonably determine would not jeopardize the attorney-client privilege with
respect to such Proceeding, to enable the Lenders and their counsel to evaluate
such matters; and (b) within forty-five (45) days after the end of each
Fiscal Quarter of the Borrower, a schedule of all Proceedings involving an
alleged liability of, or claims against or affecting, the Borrower or any of
its Subsidiaries equal to or greater than $2,500,000 and promptly after request
by the Agent such other information as may be reasonably requested by the Agent
to enable the Agent and its counsel to evaluate any of such Proceedings; provided,
however, that the Borrower and their counsel may withhold information if in
their reasonable determination, disclosure of such information would jeopardize
the attorney-client privilege with respect to such Proceeding;


 


(xiv)        intentionally deleted;


 


(xv)         ERISA Notices:  with
reasonable promptness, copies of (a) all written notices received by the
Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor concerning an
ERISA Event; and (b) such other documents or governmental reports or
filings relating to any Pension Plan or Borrower Pension Plan as the Agent
shall reasonably request;


 


(xvi)        Press Releases:  promptly upon
their becoming available, copies of all press releases and other statements
made available generally to the public concerning material developments at the
Project or in the business of the Borrower or its Subsidiaries;


 


(xvii)       Insurance:  as soon as is
practicable and in any event by thirty (30) days after the last day of each
Fiscal Year, an insurance certificate in form and substance satisfactory to the
Agent outlining all material insurance coverage maintained as of the date of
such certificate by the Borrower and its Subsidiaries accompanied by a
certificate from a Responsible Officer that the coverage described on such
certificate is planned to be maintained by the Borrower and its Subsidiaries in
the immediately succeeding Fiscal Year;


 


(xviii)      Environmental Audits and Reports: 
promptly following receipt thereof, copies of all environmental audits
and reports, whether prepared by personnel of the Borrower or any of its
Subsidiaries or by independent consultants, with respect to environmental
matters at any Real Property Asset presently owned or operated by the Borrower
or its Subsidiaries or which relate to any Environmental Liabilities of the
Borrower or its Subsidiaries, to the extent reflecting any matters which, in
any such case, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect;


 


(xix)         Material Contracts:  promptly
after (a) any Material Contract is terminated or expires or is renewed or
is, amended or otherwise Modified in any material respect, or (b) any
notice or other communication is delivered by any party to any Material
Contract pursuant thereto or in respect thereof relating to (x) any
financial matter or other matter having adverse financial consequences to the
Borrower or its Subsidiaries in excess of $2,500,000 or (y) any other
non-financial matter which could reasonably be expected to have a Material
Adverse Effect, notice and a copy thereof and, in the case of any such renewal,
amendment, other Modification or new Material Contract, a description in
reasonable detail of the material terms thereof; and


 


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(xx)          Other Information:  with
reasonable promptness, such other information and data with respect to the
Borrower or any of the Borrower’s Subsidiaries as from time to time may be
reasonably requested by the Agent or any Lenders (through the Agent), and such
other documentation, information and certifications described in Section 3.1V
as from time to time requested by the Agent or any Lender (through the Agent).


 


5.4          Corporate Existence.


 


Except in
connection with a Permitted Merger, Borrower will, and will cause each of its
Subsidiaries to, at all times preserve and keep in full force and effect its
organizational existence and all rights and franchises material to the business
of the Borrower and its Subsidiaries (on a consolidated basis) or the Loan
Parties, taken as a whole.  In the event
the Borrower or any of its Subsidiaries fails to maintain its good standing in
any jurisdiction in which such entity must be qualified to do business or
maintain its existence as required hereunder and such failure will not affect
such entity’s organizational existence in such jurisdiction, the Borrower shall
have a period of ten (10) Business Days after the Borrower’s obtaining
knowledge of such failure to cure the same. Except in connection with a
Permitted Merger, the Borrower shall not materially Modify, amend or alter any
of the organizational documents of the Borrower or any of its Subsidiaries
without the prior written consent of the Agent and otherwise in compliance with
the provisions of the Loan Documents.  RI
Club may amend its organizational documents to change its name to “Royal Island
Golf and Yacht Club Ltd.”  Borrower
agrees to give notice of the change of name to Agent promptly upon the
occurrence thereof.


 


5.5          Payment of Taxes and
Claims; Tax Consolidation.


 


The Borrower will, and will cause each of its
Subsidiaries to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in respect of any of its
income, businesses or franchises before any material penalty accrues thereon,
and all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums that have become due and payable which, if
unpaid, might become a Lien (other than a Permitted Encumbrance) upon any of
its properties or assets; provided that no such tax, charge or claim
need be paid if being Properly Contested.


 


5.6          Maintenance of
Properties; Insurance.


 


A.            The Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used in the business of the Borrower and its Subsidiaries and from time to time
will make or cause to be made all appropriate repairs, renewals and
replacements thereof as necessary (i) for the development of the Project
as contemplated by the Master Plan, (ii) to ensure the Project is in
compliance with Applicable Laws and the Heads of Agreement in all material
respects, and (iii) as and when necessary to achieve the Development
Budget.


 


B.            The Borrower will maintain or cause to be maintained,
with financially sound and reputable insurers, insurance with respect to its
properties and business and the properties and businesses of its Subsidiaries
against loss or damage of the kinds and with respect to liability customarily
carried or maintained under similar circumstances by corporations of
established reputation engaged in similar businesses for similar real property,
consistent with the insurance requirements set forth in Schedule 5.6B.  Each such policy of insurance shall name the
Agent for the benefit of the Lenders as additional insured, mortgagee and as
the loss payee thereunder for all losses, subject to application of proceeds as
required by Section 2.5B(ii)(c), and all such policies of insurance shall
provide for at least thirty (30) days’ prior written notice to the Agent of any
Modification or cancellation of such policy (ten (10) days’ prior written
notice in the case of nonpayment or nonrenewal).


 


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5.7          Lender Meeting.


 


The Borrower will, upon the request of the
Agent, participate in quarterly conference calls with the Agent and the Lenders
and a meeting of the Agent and the Lenders at least once during each Fiscal
Year (and will participate in such other meetings at such other times as the
Borrower and the Agent may agree) to be held telephonically or, at Borrower’s
election, at the Borrower’s corporate offices (or such other location as may be
agreed to by the Borrower and the Agent) at such time as may be agreed to by
the Borrower and the Agent.


 


5.8          Compliance with Laws.


 


The Borrower shall, and shall cause each of
its Subsidiaries to, comply with the requirements of all Applicable Laws,
Prescribed Laws and the Heads of Agreement, noncompliance with which,
individually or in the aggregate with other non-compliance, could reasonably be
expected to have a Material Adverse Effect. 
Borrower shall, and shall cause each of its Subsidiaries to, deliver any
and all information reasonably requested by the Agent in connection with
Prescribed Laws and compliance therewith.


 


5.9          Environmental
Compliance, Disclosure and Equator Principles.


 


A.            The Borrower shall, and shall cause each of its
Subsidiaries to, exercise all due diligence in order to comply and cause (i) all
tenants or subtenants under any leases or occupancy agreements affecting the
Real Property Assets, if any, (ii) all contractors, engineers, architects
and similar vendors and contractors, and (iii) all other Persons on or
occupying the Real Property Assets, to comply with all Environmental Laws,
except for any such noncompliance which could not reasonably be expected to
have a Material Adverse Effect.


 


B.            The Project shall comply, in all material respects,
with the Environmental Management Plan.


 


C.            In the event and to the extent that the Equator
Principles applicable to the Project materially change after the date of this
Agreement, upon the Agent’s written notice to the Borrower of such changes, the
Borrower agrees to use commercially reasonable efforts to cause such Project to
comply in a commercially reasonable time frame with any such material changes
to the Equator Principles; provided, however, that in the event
the Borrower cannot comply with the changes to the Equator Principles without
expending greater than commercially reasonable efforts, then the Borrower need
not attempt to comply with such changes to the Equator Principles, except that
in such event the Borrower shall in its reasonable discretion mitigate or cause
to be mitigated any such noncompliance with such changes.  Nothing in this Section 5.8 shall
require any modification to the Environmental Management Plan for the
construction of the Project.


 


D.            Except where accompanied by material compliance with
all applicable Environmental Laws, neither the Borrower nor any Subsidiary
shall take any action, enter into any transaction, agreement or proposal or
otherwise cause or permit any third person to take any action, that could
reasonable be expected to result in a change in the categorization (as
determined by a qualified independent consultant reasonably acceptable to the
Borrower and the Agent) of the Project from a “Category B” project under
the Equator Principles to a “Category A” project thereunder.


 


E.             At least once per Fiscal Quarter prior
to the completion of construction of the Project, Borrower shall provide the
Agent with a report, in form in substance reasonably satisfactory to the Agent,
that certifies the Borrower’s compliance with the Environmental Management Plan
and with applicable 


 


74

















 


Environmental Laws
and describes, in reasonable detail, any material noncompliance an the
corrective actions that are being, or will be taken, to address such
noncompliance.


 


F.             The Borrower agrees that the Agent
may, from time to time, retain, at the Borrower’s expense, an independent
professional consultant reasonably acceptable to the Borrower to review any
report relating to Hazardous Materials or Borrower’s or its Subsidiaries’
compliance with Environmental Laws (including the Equator Principles) prepared
by or for the Borrower and to conduct their own investigation (the scope of
which investigation shall be reasonable based upon the circumstances) of any
Real Property Asset currently owned, leased, operated or used by the Borrower
or any of its Subsidiaries, if (x) a Default or an Event of Default shall
have occurred and be continuing, (y) in connection with review of drafts,
updates and/or revisions to the Environmental Impact Assessment and Environmental
Management Plan, or (z) the Agent reasonably believes (1) that an
occurrence relating to such Real Property Asset is likely to give rise to an
Environmental Liability, (2) that a violation of an Environmental Law on
or around such Real Property Asset has occurred or is likely to occur, or (3) that
a material violation of the Equator Principles or the Environmental Management
Plan has occurred or is likely to occur, which could, in the case of subclauses
(1)-(3) above, reasonably be expected to have a Material Adverse
Effect.  The Borrower shall use its
commercially reasonable efforts to obtain for the Agent and its agents,
employees, consultants and contractors the right, upon reasonable notice to the
Borrower, to enter into or on to the Real Property Assets currently owned,
leased, operated or used by the Borrower or any of its Subsidiaries to perform
such tests on such property as are reasonably necessary to conduct such a
review and/or investigation; provided, however, that no invasive
or destructive environmental testing shall be undertaken without Borrower’s
approval, not to be unreasonably withheld, conditioned, or delayed or if
recommended by Agent’s independent consultant (except during the continuation
of an Event of Default when no such approval of Borrower shall be
required).  Without limiting the
generality of the foregoing, any such investigation of any Real Property Asset
shall be conducted, unless otherwise agreed to by the Borrower and the Agent,
during normal business hours and, shall be conducted so as not to unreasonably
interfere with the ongoing operations at any such Real Property Asset or to
cause any damage or loss to any property at such Real Property Asset.  The Borrower and the Agent hereby acknowledge
and agree that any report of any investigation conducted at the request of the
Agent pursuant to this Section 5.9B will be obtained and shall be used by
the Agent and the Lenders for the purposes of the Lenders’ internal credit
decisions, to monitor and police the Loans and to protect the Lenders’ security
interests, if any, created by the Loan Documents, and the Agent and the Lenders
hereby acknowledge and agree any such report will be kept confidential by them
to the extent permitted by law except as provided in the following
sentence.  The Agent agrees to deliver a
copy of any such report to the Borrower with the understanding that the
Borrower acknowledges and agrees that (i) it will indemnify and hold
harmless the Agent and each Lender from any costs, losses or liabilities
relating to the Borrower’s use of or reliance on such report, (ii) neither
Agent nor any Lender makes any representation or warranty with respect to such
report, and (iii) by delivering such report to the Borrower, neither the
Agent nor any Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.


 


G.            The Borrower shall promptly notify the Agent of (i) any
proposed acquisition of stock, assets, or property by the Borrower or any of
its Subsidiaries that could reasonably be expected to expose the Borrower or
any of its Subsidiaries to, or result in, Environmental Liability that could
reasonably be expected to have a Material Adverse Effect and (ii) except
as disclosed in the Master Plans or the Development Budget, any proposed action
to be taken by the Borrower or any of its Subsidiaries to commence
manufacturing, industrial or other similar operations that could reasonably be
expected to subject the Borrower or any of its Subsidiaries to additional
Environmental Laws, that are materially different from the Environmental Laws
applicable to the operations of the Borrower and its Subsidiaries as of the
date of such notice.


 


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H.            The Borrower shall, at its own expense, provide copies
of such documents or information as the Agent may reasonably request in
relation to any matters disclosed pursuant to this Section 5.9.


 


5.10        The Borrower’s Remedial
Action Regarding Hazardous Materials.


 


The Borrower shall promptly take, and shall
cause each of its Subsidiaries promptly to take, any and all necessary remedial
action in connection with the presence, handling, storage, use, disposal,
transportation or Release or threatened Release of any Hazardous Materials on,
under or affecting any Real Property Asset in order to comply in all material
respects with all applicable Environmental Laws and Governmental
Authorizations.  In the event the
Borrower or any of its Subsidiaries undertakes any Cleanup action with respect
to the presence, Release or threatened Release of any Hazardous Materials on or
affecting any Real Property Asset, the Borrower or such Subsidiaries shall
conduct and complete such Cleanup action in material compliance with all
applicable Environmental Laws, and in accordance with the policies, orders and
directives of all federal, state and local governmental authorities except
when, and only to the extent that, the Borrower’s or such Subsidiary’s
liability for such presence, handling, storage, use, disposal, transportation
or Release or threatened Release of any Hazardous Materials is being Properly
Contested.


 


5.11        Subsidiaries.


 


As of the Closing Date, the Borrower has the
Subsidiaries set forth on Schedule 5.11 hereto and will not form (or
permit to be formed) any new Subsidiaries after the Closing Date without first
receiving the prior written consent of the Agent, which consent may not be
unreasonably withheld, provided that the Agent may condition such
consent upon, among other things, (i) such new Subsidiaries executing a
guaranty (in form and substance satisfactory to the Agent) of the Borrower’s
Obligations, (ii) the Borrower executing a pledge of the Capital Stock of
such Subsidiaries, and (iii) such further action and such further
documents and instruments as may be required to grant and perfect in favor of
the Agent, for the benefit of the Lenders, a First Priority security interest
in all of the: (a) personal property assets of such Subsidiaries; (b) real
property assets owned by such Subsidiaries; and (c) leasehold interests
owned by such Subsidiaries.  With respect
to any Subsidiary approved by the Agent, the Borrower shall deliver to the
Agent, together with such Loan Documents, in the case of each such Subsidiary that
is required to be a party to any Loan Document: 
(i) (a) certified copies of such Subsidiary’s Organizational
Certificate together, if applicable, with a good standing certificate from the
Secretary of State of the jurisdiction of its incorporation, formation or
organization, as applicable, each to be dated a recent date prior to their
delivery to the Agent, (b) a copy of such Subsidiary’s Organizational
Documents, certified by its secretary or an assistant corporate secretary (or
Person holding an equivalent title or having equivalent duties and
responsibilities) as of a recent date prior to their delivery to the Agent, (c) a
certificate executed by the secretary or an assistant secretary of such
Subsidiary as to (x) the incumbency and signatures of the officers of such
Subsidiary executing such guaranty, the Collateral Documents and the other Loan
Documents to which such Subsidiary is a party and (y) the fact that the
attached Organizational Authorizations of such Subsidiary authorizing the
execution, delivery and performance of such guaranty, such Collateral Documents
and such other Loan Documents are in full force and effect and have not been
Modified or rescinded, and (ii) a favorable opinion of counsel to such
Subsidiary that is reasonably satisfactory to the Agent and its counsel, as to (a) the
due organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such guaranty, the
Collateral Documents and any other Loan Documents to which it is a party and (c) the
enforceability of such guaranty and such Collateral Documents against such
Subsidiary, (d) the validity and perfection of the security interests
granted by such Subsidiary (and by the parent of such Subsidiaries in respect
of the Capital Stock of such Subsidiary) in favor of the Agent pursuant to the
Collateral Documents, and (e) such other matters as any Agent may
reasonably request, all of the foregoing to be reasonably satisfactory 


 


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in form and substance to the Agent and its
counsel.  In addition, the Borrower shall
promptly deliver a supplement to Schedule 4.1 to the Agent if any
Subsidiary is created or acquired.


 


5.12        Deliberately Omitted.


 


5.13        Further Assurances;
Additional Real Property Collateral.


 


A.            At any time or from time to time upon the request of
the Agent, the Borrower will, at its expense, and will cause each of its
Subsidiaries, at the Borrower’s expense, to promptly execute, acknowledge and
deliver such further documents and do such other acts and things as the Agent
may reasonably request only to the extent such acts or things are consistent
with the express intent and purpose of the Loan Documents (including, without
limitation, the execution and delivery of guaranties, security agreements,
pledge agreements, mortgages, deeds of trust, landlord’s consents and
estoppels, stock powers, financing statements and other documents, the filing
or recording of any of the foregoing, title insurance with respect to any of
the foregoing that relates to an interest in real property, the delivery of
stock certificates and other collateral with respect to which perfection is
obtained by possession and the delivery of estoppels, collateral assignments
and other documentation reasonably requested in connection with Entitlements
obtained by the Borrower after the date hereof) to ensure that the Obligations
are guaranteed by the Subsidiaries and are secured by substantially all of the
assets (other than those assets specifically excluded by the terms of the Loan
Documents) of the Borrower and its Subsidiaries.


 


B.            None of Borrower or any of its Subsidiaries shall be
permitted to acquire additional Real Property Assets (whether in fee, leasehold
or otherwise) unless Borrower’s or the applicable Subsidiary’s interest in such
Real Property Assets has been made subject to the Lien of the Collateral
Documents in favor of Agent, for the benefit of the Lenders.  In connection with such an acquisition of a
Real Property Asset, Borrower and/or the applicable Subsidiary shall execute
and deliver, or cause to be executed and delivered, all such mortgages,
documents, title insurance policies, instruments, agreements, opinions and
certificates (including certificates evidencing flood insurance) similar to
those delivered with respect to Real Property Collateral securing the
Collateral Documents on the Closing Date and in form and substance reasonably
acceptable to Agent.  Borrower and/or the
applicable Subsidiary shall execute and deliver such Collateral Documents as
Agent may reasonably request to create in favor of Agent, for the benefit of
the Lenders, a valid and perfected First Priority security interest in such
Real Property Assets.


 


5.14        Title.


 


The Borrower shall and shall cause its
Subsidiaries to warrant and defend (a) its title to the Real Property
Collateral and every part thereof, subject only to Liens permitted hereunder
(including Permitted Encumbrances) and (b) the validity and priority of
the Liens of the applicable Collateral Documents, subject only to Liens permitted
hereunder (including Permitted Encumbrances), in each case against the claims
of all Persons whomsoever other than the holder of an interest that is a
Permitted Encumbrance.  Without limiting
the foregoing, the Borrower covenants and agrees that the Agent shall at all
times have a First Priority Lien on the Real Property Collateral.  The Borrower shall reimburse the Agent for
any losses, costs, damages or expenses (including reasonable attorneys’ fees
and court costs) incurred by the Agent if an interest in the Real Property
Collateral, other than as permitted hereunder (including Permitted
Encumbrances), is claimed by another Person other than the holder of an
interest that is a Permitted Encumbrance. 
If Agent receives reimbursement for any such losses, costs, damages or
expenses from the Title Company, then Agent shall refund to Borrower any
amounts previously reimbursed to Agent by Borrower for such losses, costs,
damages or expenses, provided that no Default or Event of Default has occurred
and is continuing.


 


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5.15        Estoppels.


 


The Borrower will at any time and from time
to time, within ten (10) days after written demand by Agent, deliver to
Agent a certificate duly executed, and in form satisfactory to Agent, stating
and acknowledging the then outstanding principal balance of the Loans and the
fact that, to Borrower’s knowledge, there are no defenses, offsets or
counterclaims (or, if such should not be the fact, then the facts and
circumstances relating to such defenses, offsets or counterclaims) and such
other information as may reasonably be requested by Agent.


 


5.16        SPE Covenants.


 


The Borrower and its Subsidiaries:


 


(a)           Do not own and will not own any asset or property
other than (i) the property commonly known as “Royal Island”, “Rat Cay”
(a/k/a/ “King’s Cay”) and “Chicken Cay” (a/k/a/ “Paradise Cay”), (ii) additional
Real Property Assets which is mortgaged to the Agent in accordance with the
terms and provisions of this Agreement (including, without limitation, Section 5.13
hereof), (iii) the Capital Stock of its Subsidiaries and their respective
interests in the Project, and (iv) incidental personal property reasonably
necessary for the ownership or operation of the Project;


 


(b)           will not engage in any business other than the
ownership, management and operation of the Project and will conduct and operate
its business in all material respects as presently contemplated to be conducted
and operated;


 


(c)           except to the extent permitted by this Agreement, has
not made and will not make loans to any Person or hold evidence of Indebtedness
issued by any other Person or entity;


 


(d)           except to the extent permitted by this Agreement,
shall not acquire obligations or securities of its Affiliates or any constituent
party of Borrower or its Subsidiaries;


 


(e)           is and will remain solvent and will pay its debts and
liabilities from its assets as the same shall become due;


 


(f)            has done or caused to be done and will do all things
necessary to observe organizational formalities and preserve its existence, and
will not materially amend, Modify or otherwise change its articles of
organization or operating agreement or other organizational documents in any
manner which could reasonably be expected to be adverse to the interests of the
Lenders, and in connection with any non-material amendment of any such articles
of organization or operating agreement or other organizational documents, shall
forward a copy of such amendment to the Agent promptly after the execution or filing
thereof;


 


(g)           will be, and at all times will hold itself out to the
public as, a legal entity separate and distinct from any other entity
(including any other Loan Party and any Affiliate of any Loan Party), shall
correct any known misunderstanding regarding its status as a separate entity,
shall conduct business in its own name, and shall not identify itself or any of
its Affiliates as a division or part of the other;


 


(h)           will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character and
in light of its contemplated business operations;


 


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(i)            except in connection with a Permitted Merger, will
not, and will not permit any constituent party to, seek the dissolution,
winding up, liquidation, consolidation or merger in whole or in part, of such
entity; and


 


(j)            except to the extent permitted by this Agreement, does
not and will not hold itself out to be responsible for the debts or obligations
of any other Person (except for the Loans).


 


5.17        Maintenance of
Entitlements.


 


The Borrower shall warrant and defend,
and otherwise maintain, all of the Entitlements obtained in connection with the
Project as necessary (i) for the development of the Project as intended
and as contemplated by the Master Plan, (ii) to ensure the Project is in
compliance with Applicable Laws and the Heads of Agreement, and (iii) to
enable Borrower to achieve the Development Budget.  In the event that the Borrower or the Agent
becomes aware of a breach of any requirement, condition, restriction or
obligation under any of the Entitlement Documents, the Borrower hereby grants
to the Agent the right (but in no event shall Agent have the obligation) to
cure, at the Borrower’s sole cost and expense, any such breach, after prior
written notice to the Borrower of such intention to cure same.


 


5.18        Asset Sales.


 


The Borrower covenants and agrees that the
Real Property Collateral shall only be sold pursuant to a Permitted Collateral
Asset Sale.  No Real Property Collateral
will be sold in bulk that has not been previously subdivided into individual
Residential Units or Unimproved Lots as contemplated by the Master Plan.  No Real Property Collateral will be sold
pursuant to any discount that does not reflect fair market value other than the
Permitted Investor Sales and Permitted Barter Transaction.


 


5.19        Control.


 


Cypress Royal Island GP, LLC shall at all
times directly or indirectly Control the Borrower, subject to the rights of
Behringer Harvard Royal Island LLC, a Delaware limited liability company,
contained in the limited partnership agreement of Royal Island Partners, LP
with respect to certain major decisions.


 


5.20        Deliberately Omitted.


 


5.21        Accounts.


 


The Borrower covenants and agrees that all
Cash From Project Sales and Equity Proceeds received by Borrower or its
Subsidiaries shall be deposited into and maintained in the Company’s Operating
Account as provided in Section 3.3 hereof. 
All funds in the Company’s Operating Account shall be used in a manner
consistent with the Development Budget.


 


Any “securities accounts” and “deposit
accounts” (as such terms are defined in the UCC) of the Borrower and its
Subsidiaries established after the Closing Date shall be subject to effective
Control Agreements in favor of the Agent in form and substance reasonably
satisfactory to the Collateral Agent.


 


5.22        Development Milestones.


 


The Borrower shall deliver to Agent, evidence
reasonably satisfactory to it that the following milestones with respect to the
development of the Project (collectively, the “Development Milestones”)
have been completed on or prior to the dates set forth herein:


 


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A.            Completion and approval by the Government of the
Commonwealth of The Bahamas of the Environmental Impact Assessment:  March 31, 2008;


 


B.            Completion and approval by the Government of the
Commonwealth of The Bahamas of the Environmental Management Plan: March 31,
2008; and


 


C.            Completion and approval by Agent of the Ground Leases
relating to the seabed for the Marina and bluff portions of the Project as
contemplated in the Master Plans: March 31, 2008.


 


5.23        Maintenance of Ground
Leases.


 


With respect to each Ground Lease as and when
any such Ground Lease is fully executed and becomes effective,


 


A.            Each Ground Lease or a memorandum thereof (including
any material amendment) shall be duly recorded;


 


B.            Except for Permitted Encumbrances, the Borrower’s
interest in the Ground Leases shall not be subject to any Liens superior to, or
of equal priority with, the applicable Mortgage;


 


C.            The Borrower’s interest in the Ground Lease shall be
mortgageable to the Agent without the consent of the lessor thereunder (or if
such consent is required, it has been obtained as of the date of execution and
effectiveness of the applicable Ground Lease) and the Borrower shall be
permitted to grant the Mortgage encumbering the Borrower’s leasehold estate
under the Ground Lease without the consent of the lessor thereunder (or if such
consent is required, it has been obtained as of the Closing Date) and further
in the event of foreclosure of the Agent’s security interest granted pursuant
to the Mortgage, Agent shall have the right to further assign its interest
under the Ground Lease without the need to obtain the consent of the lessor
thereunder;


 


D.            The Ground Lease shall require the lessor thereunder
to use best efforts to contemporaneously give notice of any default by the
Borrower to Agent and the Ground Lease shall further provide that notice of
termination given under the Ground Lease is not effective against the Agent
unless a copy of the notice has been delivered to Lender in the manner
described in the applicable Ground Lease;


 


E.             Agent shall be permitted a
reasonable opportunity (including, where necessary, sufficient time to gain
possession of the interest of the Borrower under the Ground Lease) to cure any
default under the Ground Lease, which is curable after the receipt of notice of
any default before the lessor thereunder may terminate such Ground Lease as to
the Agent’s interest therein; and


 


F.             The Ground Lease shall require the
lessor to enter into a new lease with a leasehold mortgagee upon termination of
the applicable Ground Lease for any reason, other than the expiration of the
term of the lease.


 


G.            Borrower shall (i) pay all rents, additional
rents and other sums required to be paid by the Borrower, as tenant under and
pursuant to the provisions of each Ground Lease, (ii) diligently perform
and observe all of the material terms, covenants and conditions of each Ground
Lease on the part of the Borrower, as tenant thereunder except to the extent
failure to do so would not reasonably be expected to have a Material Adverse
Effect, and (iii) promptly notify the Agent of the giving of any notice by
lessor under the applicable Ground Lease to the Borrower of any default by the
Borrower, as tenant thereunder, and deliver to Lender a true copy of each such
notice within five (5) Business Days of receipt. The 


 


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Borrower shall not,
without the prior consent of the Agent surrender the leasehold estate created
by the applicable Ground Lease or terminate or cancel any Ground Lease or
materially Modify, change, supplement, alter or amend any Ground Lease, either
orally or in writing.


 


H.            If the Borrower shall default in the performance or
observance of any term, covenant or condition of any Ground Lease on the part
of Borrower, as tenant thereunder, and shall fail to cure the same prior to the
expiration of any applicable cure period provided thereunder, the Agent shall
have the right, to the extent the Agent has received notice of, or has
otherwise become aware of any such default, but shall be under no obligation,
to pay any sums and to perform any act or take any action as may be appropriate
to cause all of the terms, covenants and conditions of such Ground Lease on the
part of the Borrower to be performed or observed on behalf of the Borrower, to
the end that the rights of the Borrower in, to and under such Ground Lease
shall be kept unimpaired and free from default. 
If the landlord under the applicable Ground Lease shall deliver to the
Agent a copy of any notice of default under such Ground Lease, such notice
shall constitute full protection to the Agent for any action taken or omitted
to be taken by the Agent, in good faith, in reliance thereon.  The Borrower shall exercise each individual
option, if any, to extend or renew the term of each Ground Lease prior to or
within the period in which any such option may be exercised to the extent such
option is consistent with the Development Budget and the Master Plans, and the
Borrower hereby expressly authorizes and appoints the Agent its
attorney-in-fact, during the continuance of an Event of Default, to exercise
any such option in the name of and upon behalf of the Borrower, which power of
attorney shall be irrevocable and shall be deemed to be coupled with an
interest.


 


I.              Notwithstanding anything to the
contrary contained in Sections 5.23A-F above, because it is contemplated that
Ground Leases will be entered into with the Government of the Commonwealth of
The Bahamas, Agent shall have the right to approve any such Ground Leases
notwithstanding their failure to comply with certain of the conditions set
forth in 5.23A-F above despite Borrower’s best efforts to cause such
compliance, provided that Borrower is able to deliver a First Priority Mortgage
to Agent encumbering its interest under such Ground Lease and that the
Government of the Commonwealth of The Bahamas has approved the granting of such
Mortgage.


 


5.24        Material Contracts;
Sale Leasebacks.


 


A.            Neither Borrower nor any of its Subsidiaries shall
enter into a Third Party Operating Agreement or any other Development
Management Agreement without prior written consent of the Agent, such consent
not to be unreasonably withheld and without providing the Agent with a
Recognition and Estoppel Agreement or an Assignment of Development Management
Agreement, as the case may be, in form and substance reasonably satisfactory to
the Agent. Neither Borrower nor any of its Subsidiaries shall terminate or
materially amend, supplement or Modify any such approved Third Party Operating
Agreement or any other Development Management Agreement without the prior written
consent of the Agent, not to be unreasonably withheld, conditioned or delayed.


 


B.            Neither Borrower nor any of its Subsidiaries shall
enter into a Material Contract for the oversight of the construction of the
applicable portion of the Project without the prior written consent of Agent,
which consent shall not be unreasonably withheld, conditioned or delayed and
without providing the Agent with a Recognition and Estoppel Agreement in form
and substance reasonably satisfactory to the Agent.


 


C.            Neither Borrower nor any of its Subsidiaries shall
enter into a new franchise or license agreement with a franchisor for any Hotel
without the prior written consent of the Agent not to be unreasonably withheld,
conditioned or delayed.  Neither Borrower
nor any of its Subsidiaries shall terminate or materially amend, supplement or
Modify any such approved franchise agreement without the


 


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prior written consent
of the Agent, which consent shall not be unreasonably withheld, conditioned or
delayed.


 


D.            Neither Borrower nor any of its Subsidiaries shall
enter into any development agreement that is a Material Contract or any other
agreement that is a Material Contract the purpose of which is to obtain the
property development services, similar to those provided by the Borrower of any
third party developer without the prior written consent of the Agent, such
consent not to be unreasonably withheld, conditioned or delayed and without
providing the Agent with a Recognition and Estoppel Agreement or an Assignment
of Development Management Agreement, as the case may be, in form and substance
reasonably satisfactory to the Agent, not to be unreasonably withheld,
conditioned, or delayed.


 


E.             Neither Borrower nor any of its Subsidiaries
shall enter into any new Material Contract, without the prior approval of
Agent, which approval shall not be unreasonably withheld, conditioned or
delayed.


 


F.             Neither Borrower nor any of its
Subsidiaries shall enter into any material shared use agreement or utility
sharing agreement with respect to any portion of the Real Property Collateral,
without the prior approval of Agent.


 


G.            Neither Borrower nor any of its Subsidiaries shall
enter into any sale-leaseback transaction, which affects any portion of the
Project.


 


5.25        Use of Insurance
Proceeds Upon the Occurrence of a Recovery Event.


 


A.            In the event of a Casualty resulting in damage or
destruction, the cost of which to repair is less than $2,500,000 (a “Minor Casualty”), the Borrower
shall have the right to settle any and all insurance claims in connection
therewith and utilize the Insurance Proceeds received for repair and
restoration of the affected Real Property Collateral.  Upon the occurrence of such a Casualty, the
Borrower shall have the right to collect and receive the Insurance Proceeds in
connection therewith so long as no Event of Default has occurred and is
continuing.  If no Event of Default has
occurred and is continuing, the Borrower shall deliver to the Agent a
Reinvestment Notice.  If an Event of
Default has occurred and is continuing, then the Agent shall use the Insurance
Proceeds to prepay the Loan in accordance with Section 2.7B(ii) hereof.


 


B.            In the event of a Casualty resulting in damage or
destruction, the cost of which to repair exceeds $2,500,000 (a “Major Casualty”), the Agent may
either (i) jointly with the Borrower settle and adjust any claim and agree
with the insurance company or companies on the amount to be paid as a result of
the Casualty, or (ii) allow the Borrower to agree with the insurance
company or companies on the amount to be paid as a result of the Casualty; provided,
that if at the time of the settlement of such claim an Event of Default has
occurred and is continuing, then the Agent shall settle and adjust such claim
without the consent of the Borrower.  In
any such case the Agent shall and is hereby authorized to collect any such
Insurance Proceeds.  The reasonable
out-of-pocket expenses incurred by the Agent in the adjustment and collection
of such Insurance Proceeds shall become part of the Obligations and shall be
reimbursed by the Borrower to the Agent upon demand therefore.  In the event of a Major Casualty, the
Borrower shall deposit the applicable Insurance Proceeds, within one (1) Business
Day after its receipt thereof, into an account designated and controlled by
Agent on behalf of the Lenders (the “Restoration Account”).  The Agent shall disburse the Insurance
Proceeds from the Restoration Account for purposes of restoring and repairing
the affected Real Property Collateral in accordance with the terms and
provisions of this Section 5.25 so long as (i) no Event of Default
has occurred and is continuing, (ii) the Agent determines in its
reasonable discretion that the repair and restoration can be completed prior to
the Maturity Date, provided, however that the condition set forth in this Section 5.25B(ii) shall
not apply if a 


 


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Major Casualty occurs
during the year immediately prior to the Maturity Date if the Insurance
Proceeds received by Borrower from such Major Casualty are equal to or less
than $10,000,000, (iii) the Agent determines in its reasonable discretion
that the Insurance Proceeds are sufficient to allow the Borrower to complete
the repair and restoration (or the Borrower has deposited into the Restoration
Account funds sufficient to fund the completion of such repair and restoration
to the extent not covered by the Insurance Proceeds), and (iv) the Agent
is satisfied, in its reasonable discretion, that any operating deficits
incurred as a result of the Casualty will be covered by the Insurance Proceeds,
the Borrower’s business interruption insurance or by other funds of the
Borrower.  If the conditions set forth in
this Section 5.25B are not satisfied, then the Agent shall use the
Insurance Proceeds to prepay the Loan in accordance with Section 2.7A(ii) hereof.


 


C.            From time to time, provided that the conditions set
forth in Section 5.25B are satisfied, but in no event more frequently than
once monthly, the Agent shall disburse portions of the Insurance Proceeds to,
or as directed by, the Borrower upon receipt of (1) evidence satisfactory
to it (which evidence may include inspection(s) of the work performed)
that the restoration and repair covered by the disbursement has been completed
in accordance with plans and specifications approved by the Agent and in
accordance with all Applicable Laws, (2) evidence reasonably satisfactory
to it of the remaining estimated cost of completion of the restoration and
repair, (3) funds, or, at the Agent’s option, assurances reasonably
satisfactory to Agent that such funds are available and sufficient in addition
to the Insurance Proceeds to complete the proposed restoration and repair, and (4) such
architect’s certificates, waivers of lien, contractor’s sworn statements, title
insurance endorsements, bonds and other evidences of cost, payment and
performance of the foregoing repair and restoration as the Agent may reasonably
require and approve.  The Agent may, in
any event, require that all plans and specifications for such restoration,
repair, replacement and rebuilding with respect to any Major Casualty be
submitted to and reasonably approved by the Agent prior to commencement of
work.  The Agent may request that a
consultant selected by Agent inspect such work and review the Borrower’s
request for payments and the Borrower shall, on demand by the Agent, reimburse
the Agent for the reasonable fees and disbursements of such consultant in
connection therewith.  No payment made
prior to the final completion of the restoration and repair of any Major
Casualty shall exceed ninety percent (90%) of the hard construction costs value
of the work performed from time to time (except for restoration work on a trade
by trade basis or on an hourly basis for professional services in which event,
payment may be made in full upon the completion of such work).  If, at any time during the course of the
restoration and repair of any Major Casualty, the Agent determines in its
reasonable discretion, that the remaining Insurance Proceeds are not sufficient
to complete the restoration and repair in accordance with the approved plans
and specifications and in compliance with Applicable Laws, then the Borrower
shall promptly deposit or cause to be deposited any deficiency into the
Restoration Account.  No further
disbursements will be made by the Agent until such deficient amount has been
deposited.  Any surplus which may remain
out of Insurance Proceeds held by Agent after payment of such costs of
restoration, repair, replacement or rebuilding shall be paid to Borrower so
long as no Event of Default has occurred and is continuing.


 


D.            In the event that Insurance Proceeds shall be made
available to Borrower for the restoration and repair of all or any portion of
the Real Property Collateral affected by a Casualty in accordance with the
terms and provisions of this Section 5.25, the Borrower covenants and
agrees to restore and repair or cause the same to be restored and repaired to
be of at least comparable value as prior to such damage, all to be effected in
accordance with Applicable Laws and the plans and specifications approved in
advance by the Agent, such approval not to be unreasonably withheld,
conditioned or delayed or required with respect to any Minor Casualty.  Borrower covenants and agrees to commence
such restoration and repair as soon as reasonably practicable after the
occurrence of any Casualty and the receipt of the Insurance Proceeds therefor
and shall diligently pursue the same to satisfactory completion in accordance
with the plans and specifications approved by the Agent (if required) and all
Applicable Laws.  To the extent that any
Subsidiary has constructed or is constructing improvements on any land 


 


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owned by a Borrower,
Borrower covenants and agrees that it shall cause such Subsidiary to use any
proceeds of insurance as a result of a Casualty affecting all or a portion of
such improvements to restore and repair or cause the same to be restored and
repaired to be of at least comparable value as prior to such damage, all to be
effected in accordance with Applicable Laws and the plans and specifications
under which such improvements were being constructed.  The Borrower covenants and agrees to cause
such Subsidiary to commence such restoration and repair as soon as reasonably
practicable after the occurrence of any Casualty and the receipt of the
insurance proceeds therefor and shall cause such Subsidiary to diligently
pursue the same to satisfactory completion in accordance with such plans and
specifications and all Applicable Laws.


 


5.26        Master Declarations.


 


Upon the execution and effectiveness of any
Master Declaration, Borrower shall maintain such Master Declaration in full
force and effect.  Borrower shall
diligently perform and observe all of the material terms, covenants and
conditions of the Master Declarations except to the extent failure to do so
would not reasonably be expected to have a Material Adverse Effect. Borrower
shall notify Agent within five (5) days of its becoming aware of any
defects or potential actions, challenges, proceedings by any third party or
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect on any Master Declaration. 
The Master Declarations shall provide sufficient easements, covenants
and restrictions to permit the shared use of the Project as contemplated by the
Master Plans and the Development Budget.


 


SECTION 6.

NEGATIVE COVENANTS


 


The Borrower covenants and agrees that, until
payment in full of all of the Loans and other Obligations, the Borrower shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.


 


6.1          Indebtedness.


 


The Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness or Disqualified Preferred Stock, except that the
Borrower and its Subsidiaries may create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to
Indebtedness or Disqualified Preferred Stock, as follows:


 


(i)            Each of the Loan Parties may become and remain liable
with respect to its respective Obligations in accordance with the terms of this
Agreement and the Loan Documents;


 


(ii)           The Borrower may become and remain liable with respect
to Permitted Equipment Financing;


 


(iii)          The Borrower and its Subsidiaries may incur
obligations under Hedging agreements for purposes of hedging interest rate risk
with respect to Indebtedness outstanding or expected to be incurred under this
Agreement;


 


(iv)          Borrower may issue Disqualified Preferred Stock so
long as Section 5.19 remains satisfied;


 


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(v)           The Borrower may incur an unsecured “key money” loan
in the amount of $2,000,000 or less from Montage Hotels & Resorts;


 


(vi)          The Borrower may incur unsecured Indebtedness in the
form of insurance premiums to be paid over a period of time; and


 


(vii)         Each of the Loan Parties may become and remain liable
with respect to Indebtedness to any other Loan Party; provided that, in
each case, (a) no monetary Default or Event of Default has occurred and is
continuing as the time of the incurrence thereof or would result therefrom, and
(b) all such intercompany Indebtedness shall be evidenced by promissory
notes which shall have been pledged to the Agent pursuant to the Collateral
Documents, (c) all such intercompany Indebtedness owed by the Borrower to
any of its Subsidiaries shall be unsecured and subordinated in right of payment
to the payment in full of the Obligations pursuant to the terms of the
applicable promissory notes or an intercompany subordination agreement that in
any such case, are reasonably satisfactory to the Agent.


 


6.2          Liens and Related
Matters.


 


A.            Prohibition on Liens.  The Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of any kind (including any document or instrument in respect
of goods or accounts receivable) of the Borrower or any of its Subsidiaries (or
a Lien on the Capital Stock of Borrower or its Subsidiaries to the extent held
by the Shareholder Pledgors), whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to
remain in effect, any financing statement, or other similar notice of any Lien
with respect to any such property, asset, income or profits under the Uniform
Commercial Code of any state or under any similar recording or notice statute,
except (solely with respect to the Borrower and its Subsidiaries):


 


(i)            any Permitted Encumbrances; provided, however,
that no such Permitted Encumbrances shall result in a Lien on the Capital Stock
of the Borrower or its Subsidiaries; and


 


(ii)           Liens in favor of the Agent granted pursuant to the
Collateral Documents to secure the Obligations or granted in favor of the Agent
or Lender pursuant to the terms of this Agreement.


 


B.            No Further Negative Pledges.  Except with respect to specific property
encumbered to secure payment of particular Indebtedness permitted by this
Agreement or to be sold pursuant to an Asset Sale otherwise permitted by this
Agreement, neither the Borrower nor any of its Subsidiaries shall enter into
any agreement (other than the Loan Documents) prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.


 


C.            No Restrictions on
Distributions, etc. 
Except as otherwise provided in the Loan Documents and the Club Transfer
Agreement, the Borrower will not, and will not permit any of its Subsidiaries
to, create or otherwise cause or suffer to exist or become effective any
consensual encumbrance, limitation or restriction of any kind on the ability of
any Subsidiaries of the Borrower to (i) pay dividends or make any other
distributions on any of such Subsidiary’s Capital Stock owned by the Borrower
or any other Subsidiaries of the Borrower, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to the Borrower or any other Subsidiary of
the Borrower, (iii) make loans or advances to the Borrower or any other
Subsidiary of the Borrower, or (iv) transfer any of its property or assets
to the Borrower or any other Subsidiary of the Borrower.


 


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6.3          Investments.


 


The Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, make or own any
Investments, except


 


(i)            the Borrower and its Subsidiaries may make Investments
in Cash Equivalents;


 


(ii)           the Borrower and its Subsidiaries may make Investments
for purposes of purchasing additional Real Property Collateral to the extent
permitted hereunder, which will be pledged as collateral to secure the Borrower’s
and its Subsidiaries’ Obligations hereunder as required by Section 5.13
hereof;


 


(iii)          the Borrower may make Investments in its Subsidiaries
and the Borrower’s Subsidiaries may make Investments in their Subsidiaries;


 


[(iv)             the Borrower and its Subsidiaries may make Investments
in Royal Island – RH, LP, a Delaware limited partnership, in the maximum
aggregate amount of $250,000 for purposes of funding capital expenditures,
transaction costs and other working capital needs at the Rock House from time
to time; and


 


[(v)              the Borrower and its Subsidiaries may make Investments
in an aggregate amount up to $300,000 per annum in the form of operating and/or
marketing expenses to Royal Island – RH, LP, a Delaware limited partnership, to
provide funds to Royal Island – RH, LP, a Delaware limited partnership, for
debt service on obligations owing or to become owing to J. Wallace Tutt, III,
in connection with the Investment in the Rock House.


 


6.4          Contingent
Obligations.


 


The Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, create or become or remain
liable with respect to any Contingent Obligation, except:


 


(i)            The Borrower and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations of any such Person
incurred in connection with Asset Sales permitted by this Agreement;


 


(ii)           The Borrower and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of any of the
Indebtedness that, if outstanding, would be permitted under Section 6.1;


 


(iii)          The Borrower may become and remain liable with respect
to Contingent Obligations under agreements with the Commonwealth of The Bahamas
(including, without limitation, the Heads of Agreement) as a condition to
compliance with the Entitlements or in connection with completion of the
Infrastructure, Golf Course, Hotel, Marina, Spa or other amenities at the
Projects to the extent required by the Entitlements or other agreements with
the Commonwealth of The Bahamas; and


 


(iv)          Borrower and any Subsidiary may become and remain
liable with respect to any Contingent Obligation in respect of obligations of
Borrower or any other Subsidiary which are not prohibited by this Agreement.


 


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6.5          Restricted Payments.


 


The Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, declare, order, pay, make
or set apart any sum for any Restricted Payment, provided that nothing
herein contained shall prohibit (i) the making of Restricted Payments from
the Subsidiaries of the Borrower to the Borrower, or from one Subsidiary to
another Subsidiary or (ii) the making of Restricted Payments by Borrower
to Royal Island – RH, LP, a Delaware limited partnership, for purposes of
permitting the Investments otherwise permitted under Sections 6.3(iv) and (v) hereof.


 


6.6          Deliberately Omitted.


 


6.7          Restriction on
Fundamental Changes.


 


Except for a Permitted Merger, neither the
Borrower nor any of its Subsidiaries shall, without the prior written consent
of the Requisite Lenders in their sole and absolute discretion, directly or
indirectly, enter into any merger, consolidation, reorganization or liquidate,
wind up or dissolve, or cause or consent to either the Borrower or any
Subsidiaries to enter into any merger, consolidation, reorganization or
liquidation, wind up or dissolution.


 


6.8          Asset Sales.


 


Without the prior written consent
of the Requisite Lenders, the Borrower shall not, and shall not permit any of
its Subsidiaries to engage in any Asset Sales, except as follows:


 


(i)            With respect to Real Property Collateral, the transfer
by RIBC of ownership of certain Real Property Collateral, upon which golf and
social facilities, including an 18-hole championship golf course and clubhouse,
and 200 wet slip marina (with dock master’s office, fuel facility and
storage boxes) will be constructed, as more particularly described in the Club
Transfer Agreement, and Personal Property (as defined in the Club Transfer
Agreement) to RI Club, in accordance with the Club Transfer Agreement, and the
transfer by the Bahamian Borrower of ownership of the Ground Lease to RI Club;


 


(ii)           With respect to Real Property Collateral, a Permitted
Collateral Asset Sale or Required Dedication, provided that each of the
following conditions has been satisfied:


 


(a)           no monetary Default or Event of Default shall have
occurred and be continuing (other than a monetary Default or Event of Default
that will be cured through the consummation of the proposed Asset Sale);


 


(b)           not less than five (5) Business Days prior
written notice of the closing of such sale has been provided to the Agent with
a true, correct and complete copy of the relevant Qualified Sales Agreement;


 


(c)           such Asset Sale is consummated in accordance with the
terms of a Qualified Sales Agreement;


 


(d)           any and all mandatory prepayments of the Loan required
to be made through the date of the proposed Asset Sale have been made, and all
mandatory prepayments resulting from such Asset Sale will be made in accordance
with Section 2.7A(ii)(d);


 


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(e)           the Real Property Collateral subject to such Asset
Sale or Required Dedication, and the remaining Real Property Collateral after
giving effect to such Asset Sale or Required Dedication shall constitute one or
more legal subdivisions in accordance with all Applicable Laws and Governmental
Authorizations;


 


(f)            the Borrower shall have paid all reasonable
out-of-pocket costs and expenses incurred by the Agent and all reasonable fees
and expenses paid to third party consultants (including reasonable attorneys’
fees and expenses) by the Agent in connection with a release of any Real
Property Collateral;


 


(g)           in connection with a Permitted Bulk Sale, the Agent
shall have received such title endorsements, date downs or other evidence
reasonably satisfactory to Agent that (i) the priority of the liens
evidenced by the Mortgages with respect to the remaining Real Property
Collateral after giving effect to such Asset Sale or Required Dedication shall
be maintained following such Asset Sale or Required Dedication, and (ii) the
remaining Real Property Collateral is not subject to any Liens other than
Permitted Encumbrances and Liens permitted by Section 6.2;


 


(h)           in connection with a Permitted Bulk Sale and a
Permitted Retail Sale, the Agent shall have received an Qualified Appraisal
setting forth the fair market value of the Real Property Collateral proposed to
be sold pursuant to such Permitted Bulk Sale or Permitted Retail Sale;


 


(i)            Deliberately Omitted;


 


(j)            in connection with a Permitted Utility Sale that is a
sale-leaseback, (1) Agent shall have approved the documentation pursuant
to which such conveyance is effectuated, such approval not to be unreasonably
withheld and shall have received a Mortgage encumbering the leasehold interest
to be held by the Borrower, collateral assignments of any notes and/or
mortgages held by Affiliates of the Borrower in connection therewith and such
other documentation reasonably requested by Agent, and (2) Agent shall be
satisfied in its reasonable discretion that such Permitted Utility Sale has not
had and could not reasonably be expected to have a Material Adverse Effect or
has not impaired and could not reasonably be expected to impair the Agent’s
First Priority Lien on the remaining Real Property Collateral; and


 


(k)           in connection with any other Permitted Utility Sale, (1) Agent
shall have approved the documentation pursuant to which such conveyance is
effectuated, including, without limitation, the agreements pursuant to which
the Borrower retains the right to utilize the services provided by the
utilities subject of such Permitted Utility Sale and evidence satisfactory to
Agent that such rights are sufficient to meet the capacity needs of the Project
in accordance with the Development Budget, (2) Agent shall have received
documentation reasonably satisfactory to it evidencing the Agent’s rights to
utilize the services provided by the utilities subject of such Permitted
Utility Sale in the event the Agent, on behalf of the Lenders succeeds to
ownership of the Project and such other documentation reasonably requested by
Agent, and (3) Agent shall be satisfied in its reasonable discretion that
such Permitted Utility Sale has not had and could not reasonably be expected to
have a Material Adverse Effect or has not impaired and could not reasonably be
expected to impair the Agent’s First Priority Lien on the remaining Real
Property Collateral.


 


(iii)          With respect to the Capital Stock of the Borrower (or
any Subsidiaries of the Borrower), the sale of such Capital Stock provided
that each of the following conditions has been satisfied:


 


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(a)           no monetary Default or Event of Default shall have
occurred and be continuing (other than a monetary Default or Event of Default
that will be cured through the consummation of the proposed Asset Sale);


 


(b)           the mandatory prepayment required under Section 2.7A(ii)(b),
if any, shall have been made concurrently with the consummation of the proposed
Asset Sale; and


 


(c)           no Change of Control will result from the proposed
sale of Capital Stock.


 


(iv)          With respect to the Capital Stock of the Club, the
redemption of the Class A Common Stock of the Club, in accordance with the
Club Transfer Agreement.


 


(v)           With respect to any furniture, fixtures, equipment or
other personal property that is worn out, obsolete or no longer necessary or
appropriate for the operation and management of the Property in accordance with
commercially reasonable property management practices, the sale of such
personal property in the Ordinary Course of Business, provided that the
mandatory prepayment required under Section 2.7A(ii)(e), if any, shall
have been made concurrently with the consummation of the proposed Asset Sale.


 


6.9          Transactions with
Shareholders and Affiliates.


 


The Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service or the payment of
any management fees, consulting fees or the making of other disbursements) with
any holder of 5% or more of any class of equity Securities of the Borrower or a
Subsidiary or with any Affiliate of the Borrower or of any such Subsidiary or
holder, on terms that are less favorable to the Borrower or applicable
Subsidiary, as the case may be, than those that could be obtained at the time
from Persons who are not such a holder or Affiliate; provided that the
foregoing restriction shall not apply to:


 


(i)            the Loan;


 


(ii)           the Permitted Investor Sales; and


 


(iii)          the amounts expressly contemplated under the
Development Budget to be paid to Affiliates of the Borrower.


 


6.10        Conduct of Business.


 


The Borrower shall not, and shall not permit
any of its Subsidiaries to, engage in any business other than (i) the
businesses described in the definition of “Ordinary Course of Business,” and (ii) such
other lines of business as may be reasonably related thereto.


 


6.11        Amendments or Waivers
of Certain Agreements.


 


None of the Borrower nor its Subsidiaries
shall terminate or agree to any amendment, restatement, supplement or other
Modification to, or waive any of its rights under, any Organizational
Certificates or Organizational Documents of the Borrower and its Subsidiaries,
if such termination, amendment, restatement, supplement, Modification or waiver
would be materially adverse to the Lenders.


 


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6.12        Fiscal Year.


 


Neither the Borrower nor any of
its Subsidiaries shall change its Fiscal Year-end from December 31.


 


SECTION 7.

EVENTS OF DEFAULT


 


If any of the
following conditions or events (“Events of Default”) shall occur:


 


7.1          Payment of
Obligations.


 


The Borrower shall fail to pay (i) any
principal of any Loan on the due date thereof (whether due at stated maturity, on demand,
upon acceleration or otherwise), (ii) any regularly
scheduled interest payments required pursuant to Section 2.5C or fees
required pursuant to Section 2.6, within three (3) Business Days
after the date on which such payments are due or (iii) any other
Obligations when due and the continuation of such failure for three (3) Business
Days after the date on which Borrower receives notice of such failure.


 


7.2          Misrepresentations.


 


Any representation, warranty or other written
statement to Agent or any Lender by or on behalf of any Loan Party, Shareholder
Pledgor, or Sponsor Guarantor whether made in or furnished in compliance with
or in reference to any of the Loan Documents, proves to have been false or
misleading in any material respect when made or furnished; or


 


7.3          Breach of Certain
Covenants.


 


The Borrower shall fail or neglect
to perform,
keep or observe (i) any covenant contained in Sections 5.1, 5.4, 5.16,
5.17 5.18, 5.19, 5.21, 5.23 and Section 6 hereof on the date that the
Borrower is required to perform, keep or observe such covenant, provided,
that in the case of a breach of the covenants contained in Section 5.23,
the breach of such covenant is not cured to the satisfaction of the Agent
within such cure periods afforded to the lessee under the applicable Ground
Lease.


 


7.4          Breach of Other
Covenants.


 


The Borrower shall fail or neglect to
perform, keep or observe any other covenant contained in this Agreement not
otherwise addressed in this Section 7 and the breach of such other
covenant is not cured to the Agent’s satisfaction within thirty (30) days after
the sooner to occur of any Responsible Officer’s receipt of notice of such
breach from the Agent or the date on which such failure or neglect first
becomes known to any Responsible Officer; or


 


7.5          Default Under Loan
Documents.


 


Except as otherwise provided in this Section 7,
the Borrower or other Loan Party, Shareholder Pledgor or the Sponsor Guarantor
shall default in the due and punctual observance or performance of any
liability or obligation to be observed or performed by it under any of the Loan
Documents and such default or breach is not cured to the Agent’s satisfaction
within the earlier to occur of the timeframe set forth in such Loan Document,
or thirty (30) days after the sooner to occur of any Responsible Officer’s 


 


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receipt of notice of such default or breach
from the Agent or the date on which such default or breach first becomes known
to any Responsible Officer; or


 


7.6          Other Defaults.


 


There shall occur any default or event of
default on the part of the Borrower or any Subsidiary beyond any applicable
cure or grace period under any agreement, document or instrument to which the
Borrower or any Subsidiary is a party or by which the Borrower or any
Subsidiary or any of their respective properties is bound, creating or relating
to any Indebtedness (other than the Obligations) in excess of $5,000,000 if, in
each case, the payment or maturity of such Indebtedness may be accelerated
in consequence of such event of default or demand for payment of such
Indebtedness may be made; or


 


7.7          Prescribed Laws.


 


If Borrower or any of its Subsidiaries fails
to comply in any material respect with the covenants as to Prescribed Laws set
forth in this Agreement and such failure to comply continues after ten days
notice thereof.


 


7.8          Solvency.


 


Any Loan Party or Sponsor Guarantor shall
cease to be Solvent; or


 


7.9          Insolvency
Proceedings.


 


Any Insolvency Proceeding shall be commenced
by any Loan Party or the Sponsor Guarantor with respect to itself; an
Insolvency Proceeding is commenced against any Loan Party and any of the
following events occur: such Loan Party or the Sponsor Guarantor consents to
the institution of the Insolvency Proceeding against it, the petition
commencing the Insolvency Proceeding is not timely controverted by such Loan
Party or the Sponsor Guarantor, as the case may be, the petition commencing the
Insolvency Proceeding is not dismissed within sixty (60) days after the date of
the filing thereof (provided that, in any event, during the pendency of
any such period, Lenders shall be relieved from their obligation to make
Loans or otherwise extend credit to or for the benefit of the Borrower
hereunder), an interim trustee is appointed to take possession all or a
substantial portion of the properties of such Loan Party or the Sponsor
Guarantor or to operate all or any substantial portion of the business of such
Loan Party or the Sponsor Guarantor, as the case may be, or an order for relief
shall have been issued or entered in connection with such Insolvency
Proceeding; or any Loan Party or the Sponsor Guarantor shall make an offer of settlement
extension or composition to its unsecured creditors generally; or


 


7.10        Business Disruption;
Condemnation.


 


Once commenced, there shall occur (i) a
material cessation of construction of the Project (subject to Force Majeure)
for a period of time, which could reasonably be expected to have a Material
Adverse Effect; (ii) or any Loan Party shall suffer the loss or revocation
of any license, permit, Entitlement or Approval now held or hereafter acquired
by such Loan Party which is necessary for the operations of such Loan Party or
necessary to the continued or lawful operation of its business or the
development of the Project as contemplated by the Master Plans, the Development
Budget, and this Agreement, which loss or revocation could reasonably be expected
to have a Material Adverse Effect; or any Loan Party
shall be enjoined, restrained or in any way prevented by court,
governmental or administrative order from conducting all or any part of its
business affairs, which enjoinment, restraint or prevention could reasonably be
expected to have a Material Adverse Effect; or any material part of the
Collateral shall be taken through condemnation or the appraised value of such
property shall be materially impaired through 


 


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condemnation, which taking or impairment
could reasonably be expected to have a Material Adverse Effect, in each case,
if any such occurrence described in subclauses (i) or (ii) above is
not cured to the Agent’s satisfaction within thirty (30) days after the sooner
to occur of any Responsible Officer’s receipt of notice of a default under this
Section 7.10 from the Agent or the date on which such default first
becomes known to any Responsible Officer, provided that so long as Borrower is
diligently pursuing the cure of any circumstance arising under clause (ii) above,
Borrower shall have an additional period of thirty (30) days to effectuate such
cure; or


 


7.11        ERISA.


 


(i) An ERISA Event shall occur which
could reasonably be expected to result in a Material Adverse Effect; or (ii) there
exists any fact or circumstance that could reasonably be expected to give rise
to or result in the imposition of a Lien or security interest under Section 412(n) of
the Code or under ERISA; or


 


7.12        Challenge to Loan
Documents.


 


Any Loan Party, the Sponsor Guarantor, or any
of its Affiliates shall challenge or contest in any action, suit or proceeding
the validity or enforceability of any of the Loan Documents, the legality
or enforceability of any of the Obligations or the perfection or priority of
any Lien granted to the Agent, or any of the Loan Documents ceases to be in
full force or effect for any reason other than a full or partial waiver or
release by the Agent and Lenders in accordance with the terms thereof; or


 


7.13        Judgment.


 


One or more final, non-appealable judgments
or orders for the payment of money in an amount that exceeds, individually or
in the aggregate, $5,000,000 that is not covered by insurance (subject to any
applicable deductible) shall be entered against the Borrower or any other Loan
Party and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be
any period of thirty (30) consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or


 


7.14        Change in Control.


 


If any Change of Control shall
occur.


 


7.15        Criminal Forfeiture.


 


Any Loan Party shall be convicted under any
criminal law that could lead to a forfeiture of any property of such Loan
Party.


 


7.16        Development Milestones.


 


Failure to meet any Development Milestone on
or prior to the deadline provided therefor in Section 5.22 (except with
respect to clause (d) thereof) if such failure continues for five (5) days
after notice from Agent of same.


 


THEN (i) upon
the occurrence of any Event of Default described in Section 7.9, each of (a) the
unpaid principal amount of and accrued interest on the Loans, and (b) all
other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by the Borrower, and the obligation of 


 


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each Lender to make any Loan shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any
other Event of Default, the Agent shall, upon the written request of the
Requisite Lenders, by written notice to the Borrower, declare all or any
portion of the amounts described in clauses (a) and (b) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan shall thereupon terminate.  Upon the occurrence of any Event of Default,
Agent may (and shall as directed by the Requisite Lenders) (A) exercise,
on behalf of the Lenders, any and all rights and remedies under any guaranties
including the Guaranties (to the extent applicable, and, with respect to the
Recourse Guaranty, subject to the rights of Behringer pursuant to any other
agreements between the Agent, Behringer and/or Lenders relative thereto), the
Collateral Documents, and any other collateral documents entered into with
respect to the Loans; and/or (B) exercise any and all rights, powers and
remedies available to Agent or Lenders at law, in equity or otherwise,
including, without limitation, under the other Loan Documents, all of which
rights, powers and remedies are cumulative and not exclusive.


 


SECTION 8.

AGENT


 


8.1          Appointment.


 


A.            Appointment
Authority.  Each of the Lenders hereby
irrevocably appoints iStar Financial Inc. (“iStar”)
as the Agent hereunder and under the other Loan Documents and authorizes iStar,
in such capacities, to take such actions on its behalf and to exercise such
powers as are delegated to iStar, in such capacity by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.  Agent agrees to act upon the
express conditions contained in this Agreement and the other Loan Documents, as
applicable.  In performing its functions
and duties under this Agreement, Agent shall act solely as an agent of the
Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for the Borrower
or any of its Subsidiaries.  The
provisions of this Section 8 are solely for the benefit of the Lenders and
Agent and the Borrower shall not have rights as third party beneficiaries of
any of such provisions.


 


B.            Appointment of
Supplemental Agents.  It
is the purpose of this Agreement and the other Loan Documents that there shall
be no violation of any law of any jurisdiction denying or restricting the right
of banking corporations or associations to transact business as agent or
trustee in such jurisdiction.  It is
recognized that in case of litigation under this Agreement or any of the other
Loan Documents, and in particular in case of the enforcement of any of the Loan
Documents, or in case the Agent deems that by reason of any present or future
law of any jurisdiction the Agent may not exercise any of the rights, powers or
remedies granted herein or in any of the other Loan Documents or take any other
action which may be desirable or necessary in connection therewith, it may be
necessary that the Agent appoint an additional individual or institution as a
separate trustee, co-trustee, collateral agent or collateral co-agent (any such
additional individual or institution being referred to herein individually as a
“Supplemental
Agent” and collectively as “Supplemental Agents”).  Agent shall give notice to the Lenders of the
necessity for the appointment of any Supplemental Agent (and if such
Supplemental Agent is appointed, of the identity of such Supplemental Agent).


 


In the event that the Agent appoints a
Supplemental Agent with respect to any Collateral for the reasons specified in
the foregoing paragraph, (i) each and every right, power, privilege or
duty expressed or intended by this Agreement or any of the other Loan Documents
to be exercised by or vested in or conveyed to the Agent with respect to such
Collateral shall be exercisable by and vest in such Supplemental Agent to the
extent, and only to the extent, necessary to enable such Supplemental Agent to
exercise such rights, powers and privileges with respect to such Collateral and
to perform such duties with respect to such Collateral, and every covenant and
obligation contained in the Loan Documents and


 


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necessary to the exercise or performance thereof by such Supplemental
Agent shall run to and be enforceable by either the Agent or such Supplemental
Agent, and (ii) the provisions of this Section 8 and of Section 9.2
that refer to the Agent shall inure to the benefit of such Supplemental Agent
and all references therein to the Agent shall be deemed to be references to the
Agent and/or such Supplemental Agent, as the context may require.


 


Should any
instrument in writing from the Borrower or any other Loan Party or the Sponsor
Guarantor be required by any Supplemental Agent so appointed by the Agent for
more fully and certainly vesting in and confirming to him or it such rights,
powers, privileges and duties, the Borrower shall, or shall cause such Loan Party,
the Shareholder Pledgor or the Sponsor Guarantor to, execute, acknowledge and
deliver any and all such instruments promptly upon request by the Agent.  In case any Supplemental Agent, or a
successor thereto, shall die, become incapable of acting, resign or be removed,
all the rights, powers, privileges and duties of such Supplemental Agent, to
the extent permitted by law, shall vest in and be exercised by the Agent until
the appointment of a new Supplemental Agent.


 


8.2         Rights as a Lender.


 


The Person serving
as the Agent hereunder shall have the same rights and powers in its capacity as
a Lender as any other Lender and may exercise the same as though it were not an
Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving
as the Agent hereunder in their individual capacity.  Such Person and its Affiliate may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Borrower or any Subsidiaries or other Affiliate thereof as if such Person were
not an Agent hereunder and without any duty to account therefor to the Lenders
or the Counterparties.


 


8.3         Exculpatory Provisions.


 


Neither the
Agent nor its Affiliates shall have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, the Agent (i) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or an Event of Default has occurred and
is continuing, (ii)  shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the
Agent is required to exercise as directed in writing by the Requisite Lenders
(or such other number or percentage of the relevant Lenders as shall be
necessary under the circumstances as provided in Section 9.5), provided
that no Agent shall be required to take any action that, in its opinion or
the opinion of its counsel, that is contrary to any Loan Document or Applicable
Law, and (iii)  shall not, except as expressly set forth herein and in the
other Loan Documents have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of their
Affiliates that is communicated to or obtained by the Person serving as an
Agent or any of their respective Affiliates in any capacity.  No Agent shall be liable to the Lenders (x) for
any action taken or not taken by it with the consent or at the request of the
Requisite Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.5), provided
that the foregoing provisions of this sentence do not release or relieve Agent
from liability for its gross negligence or willful misconduct, or (y) or
in the absence of its own gross negligence or willful misconduct.  No Agent shall be deemed to have knowledge of
any Default or Event of Default unless and until written notice thereof is
given to such Agent by the Borrower or any Lender.  The Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other


 


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terms or conditions set forth herein or therein or the occurrence of
any Default or Event of Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other Loan Document or
any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Section 3 or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Agent.


 


8.4         Reliance by the
Agent.


 


The Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, posting or other
distribution) believed by it in good faith to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person.  The Agent also may rely upon any statement
made to it orally or by telephone and believed by it in good faith to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of such Loan that by its terms must be
fulfilled to the satisfaction of a Lender, the Agent may presume that such
condition is satisfactory to such Lender unless the Agent shall have received
notice to the contrary from such Lender prior to the making of such Loan.  The Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.


 


8.5         Delegation of
Duties.


 


Agent may
perform any and all of its duties and exercise its rights and powers hereunder
or under any other Loan Document by or through any one or more sub-agents
appointed by such Agent, provided that in no event shall the Borrower be
required to communicate directly with any such sub-agent.  The Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through
their respective Related Parties.  The
exculpatory provisions of Section 8.3 shall apply to any such sub-agent
and to the Related Parties of such Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as such Agent.  For the avoidance of doubt, the Agent shall
not have the right to appoint a servicer or any sub-agent with whom the
Borrower would be required to communicate directly.


 


8.6         Resignation of
Agent.


 


The Agent may
at any time give notice of its resignation to the Lenders and the Borrower and
Agent shall continue to perform as Agent until a Successor Agent is
appointed.  Upon receipt of any such
notice of resignation, the Requisite Lenders shall have the right, with the
written consent of the Borrower if no Default or Event of Default shall have
occurred and be continuing (such consent not to be unreasonably withheld or
delayed), to appoint a successor Agent, which shall be a financial institution
with an office in New York, or an Affiliate of any such financial institution
with an office in New York.  If no such
successor shall have been so appointed by the Requisite Lenders and shall have
accepted such appointment within 90 days after the retiring Agent as the case
may be, gives notice of its resignation, then the retiring Agent may, with the
written consent of the Borrower if no Default or Event of Default shall have
occurred and be continuing (such consent not to be unreasonably withheld or
delayed), on behalf of the Lenders, appoint a successor Agent, meeting the
qualifications set forth above, provided that if the Agent shall notify
the Borrower and the Lenders that no such successor is willing to accept such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Agent, as applicable,
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held
by the Agent on behalf of the Lenders under any of the Loan Documents, the
retiring Agent shall continue to hold such


 


95

















 


collateral security, and act relative thereto upon instruction of the
Requisite Lenders until such time as a successor Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Agent, shall instead be made by or to each Lender, directly, until
such time as the Requisite Lenders appoint a successor Agent, as provided for
above in this paragraph.  Upon the
acceptance of a successor’s appointment as Agent, such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring (or retired) Agent, and the retiring Agent, as applicable shall be
discharged from all of its duties and obligations hereunder or under the Loan
Documents except as otherwise provided herein. 
The fees payable by the Borrower to a successor Agent, shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor.  After the
retiring Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Section 8 and Section 9.2 shall continue in effect
for the benefit of such retiring Agent, as applicable, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Agent, was acting in such capacity.


 


8.7         Collateral
Documents; Successor Agent.


 


Each Lender
hereby further authorizes the Agent to enter into each Collateral Document as
secured party on behalf of and for the benefit of the Lenders and the other
beneficiaries named therein and agrees to be bound by the terms of each Collateral
Document; provided that the Agent shall not enter into or consent to any
amendment, Modification, termination or waiver of any provision contained in
any Collateral Document without the prior consent of the Requisite Lenders (or,
if required pursuant to Section 9.5, all the Lenders); provided  further,
however, that, without further written consent or authorization from any
Lender, the Agent may execute any documents or instruments necessary to effect
the release of any asset constituting Collateral from the Lien of the
applicable Collateral Document in the event that such asset is sold or
otherwise disposed of in a transaction effected in accordance with Section 6.9
or to the extent otherwise required by any Collateral Document.  Anything contained in any of the Loan
Documents to the contrary notwithstanding, each Lender agrees that no Lender
shall have any right individually to realize upon any of the Collateral under
any Collateral Document, it being understood and agreed that all rights and remedies
under the Collateral Documents may be exercised solely by the Agent for the
benefit of the Lenders and the other beneficiaries named therein in accordance
with the terms thereof and hereof.


 


8.8         Non-Reliance on
Agent and Other Lenders.


 


Each Lender
acknowledges that it has, independently and without reliance upon Agent or any
other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 


8.9         Withholding Taxes.


 


To the extent
required by any Applicable Laws, the Agent may withhold from any payment to any
Lender an amount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any other
Governmental Authority asserts a claim that the Agent did not properly withhold
tax from accounts paid to or for the account of any Lender because the
appropriate form was not delivered or was not properly executed or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from or reduction of withholding tax ineffective or for any other
reason,


 


96

















 


such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including any
penalties or interest and together with any and all expenses incurred.


 


8.10       Agent and Tranche B
Holder.


 


Pursuant to a
separate agreement between the Agent and Lenders, the holder of the Tranche B
Loan has certain rights to acquire the interest of the Tranche A-1 Loan.  In the event the holder of the Tranche B Loan
exercises those rights, such that iStar Financial Inc. or its Affiliates
(collectively, the “iStar Entity”)
is no longer the holder of any interest in the Tranche A-1 Loan, the parties
hereto agree that, notwithstanding any provision herein to the contrary, the
holder of the Tranche B Loan may, in its sole discretion, at any time
thereafter, require the removal of the iStar Entity as Agent for the Lenders
without cause, by written notice given to Agent and Lenders (the “Removal Notice”).  If the holder of the Tranche B Loan shall
give the Removal Notice, the effective termination date of the then existing
Agent shall, unless otherwise stated in such Removal Notice, be ninety (90)
days following the date of such Removal Notice, provided, however, that if the
Lenders have not, prior to such termination date, identified a successor Agent
who is willing to accept such appointment and is approved and/or qualified as
necessary under requirements of Governmental Authorities of The Commonwealth of
the Bahamas (including without limitation the issuance of any permits required
in order for such Agent to hold the collateral security as provided in this
Agreement) (a “Qualifying Agent”)
then, in such case (1) the then existing Agent shall be discharged from
its duties and obligations as Agent under this Credit Agreement and under the
other Loan Documents (except that in the case of any collateral security held
by the Agent on behalf of the Lenders under any of the Loan Documents, the
Agent being removed shall continue to hold such collateral security and to act
relative thereto as instructed by the Requisite Lenders, until such time as a
successor Agent is appointed who is a Qualifying Agent) and (2) all
payments, communications and determinations provided to be made by, to or
through the Agent, shall instead be made by or to each Lender, directly, until
such time as the Requisite Lenders appoint a successor Agent who is a
Qualifying Agent.  Upon the acceptance of
a successor’s appointment as Agent, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the Agent being
replaced, and the replaced Agent, as applicable shall be discharged from all of
its duties and obligations hereunder or under the Loan Documents except as
otherwise provided herein.  The fees
payable by the Borrower to a replacement Agent, shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such replacement.  After the replaced
Agent’s removal hereunder and under the other Loan Documents, the provisions of
this Section 8.10 and Section 9.2 shall continue in effect for the
benefit of such removed Agent, as applicable, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the removed Agent was acting in such capacity.


 


SECTION 9.


MISCELLANEOUS


 


9.1         Assignments and
Participations in Loans.


 


A.            Successors and Assigns Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender and the Agent and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the provisions of Section 9.1B,
(ii) by way of participation in accordance with the provisions of Section 9.1D
or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 9.1F (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any


 


97

















 


Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in Section 9.1D and, to the extent expressly contemplated hereby,
the Related Parties of each of the Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


B.            Assignments
by Lenders.


 


(i)            Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of the Loans at the time owing to it); provided that


 


(a)           such
Lender obtains Borrower’s prior written consent for all assignments except (i) assignments
made to another Lender or an Affiliate or Approved Fund of the Lender, (ii) during
the primary syndication of the Loans and obtaining of commitments under the
Loans to Persons approved by the Borrower on or prior to the Closing Date, or (iii) after
the occurrence or during the continuance of an Event of Default;


 


(b)           except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Loans or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of
the Loans subject to each such assignment (determined as of the date of the
Assignment Agreement with respect to such assignment is delivered to the Agent)
shall not be less than $1,000,000 or an integral multiple of $1,000,000 in
excess thereof (which minimum amounts may be satisfied through aggregation of
all related funds), unless the Agent otherwise consents, such consent not to be
unreasonably withheld;


 


(c)           each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans assigned; and


 


(d)           (i)            subject to Section 9.1B(ii),
the parties to each assignment shall execute and deliver to the Agent an
Assignment Agreement via an electronic settlement system acceptable to the
Agent (or, if previously agreed with the Agent, manually), and shall pay to the
Agent a processing and recording fee of $3,500 (which fee may be waived or
reduced in the reasonable discretion of the Agent), and the Eligible Assignee,
if it shall not be a Lender, shall deliver to the Agent, if required,
applicable tax forms.


 


(ii)           Subject
to acceptance and recording thereof by the Agent pursuant to Section 9.1C,
from and after the effective date specified in each Assignment Agreement, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment Agreement, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
Agreement, be released from its obligations under this Agreement (and, in the case
of an Assignment Agreement covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Section 2.7 with
respect to facts and circumstances occurring prior to the effective date of
such assignment.  An Eligible Assignee
shall not be entitled to receive any greater payment under Section 2.7
than the assigning Lender would have been entitled to receive with respect to
the Loan or portion of the Loan assigned to such Eligible Assignee, unless the
grant to such Eligible Assignee is made with the Borrower’s prior written
consent.  Except in the case of an
assignment to a Lender, an Affiliate of a Lender, or an Approved Fund


 


98

















 


with
respect to a Lender, any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 9.1D.


 


C.            The Register.  The Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in New York a
copy of each Assignment Agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders and principal amounts of
the Loans (each, a “Registered Loan”)
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The Agent will record all transfers of the
Loans, or any portion thereof, in the Register. 
The entries in the Register shall be conclusive, absent manifest error,
and the Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and Lenders at any reasonable time and from time to
time upon reasonable prior notice.


 


D.            Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower, the Agent or any other Lender, sell
participations to any Person (other than a natural person or the Borrower or
Sponsor Guarantor or any of the Affiliates or Subsidiaries of the Borrower or
Sponsor Guarantor) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of the Loans owing to it); provided
that


 


(i)            such
Lender’s obligations under this Agreement shall remain unchanged,


 


(ii)           such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, and


 


(iii)          the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.


 


Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, Modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, Modification or waiver with respect to any action (i) effecting
the extension of the final maturity of the 
Loan allocated to such participation, (ii) effecting a reduction of
the principal amount of or affecting the rate of interest payable on any Loan
or any fee allocated to such participation, or (iii) releasing all or
substantially all of the Collateral other than in connection with payment of
the Loans in full.  Subject to Section 9.1E,
the Borrower agrees that each Participant shall be entitled to the benefits of Section 2.10
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 9.1B; provided that such Participant
agrees to be subject to Section 2.11 as though it were a Lender.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.3 as
though it were a Lender, provided such Participant agrees to be subject
to Section 9.4 as though it were a Lender.


 


E.             Limitations
Upon Participant Rights.  A Participant shall not be entitled to
receive any greater payment under Section 2.10 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. 
Without limiting the generality of the foregoing, a Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.10E unless the Borrower is notified of the
participation sold to such Participant and such


 


99

















 


Participant agrees, for the benefit of the
Borrower, to comply with Section 2.10E(v) as though it were a Lender.


 


F.             Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto. 
Notwithstanding anything to the contrary contained herein, any Lender
that is a Fund may create a security interest in all or any portion of the
Loans owing to it and the Notes, if any, held by it to the trustee for holders
of obligations owed, or Securities issued, by such Fund as security for such
obligations or Securities; provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this Section 9.1,
(i) no such pledge shall release the pledging Lender from any of its
obligations under this Agreement and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under this Agreement and the
Notes even though such trustee may have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise.


 


G.            SPV Lender.  Notwithstanding anything to
the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle (a “SPV”), identified as such in writing from time to time by the
Granting Lender to the Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make the Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPV to make
any Loan, (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof.  The making of a
Loan by an SPV hereunder shall utilize the Loan Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting
Lender.  Each party hereto hereby agrees that no SPV shall be liable for
any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender).  An SPV shall not be
entitled to receive any greater payment under Section 2.10 than the
Granting Lender would have been entitled to receive with respect to the Loan or
portion of the Loan granted to such SPV, unless the grant to such SPV is made
with the Borrowers’ prior written consent.  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPV, it will not institute against, or join any
other Person in instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or
any State thereof.  In addition, notwithstanding anything to the contrary
contained in this Section 9.1, any SPV may (i) with notice to, but
without the prior written consent of, the Borrower and the Agent and without
paying any processing fee therefor assign all or a portion of its interests in
any Loans to the Granting Lender or to any financial institutions (consented to
by the Agent) providing liquidity and/or credit support to or for the account
of such SPV to support the funding or maintenance of Loans and (ii) disclose
on a confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPV.  This Section 9.1 may
not be amended without the written consent of the SPV.


 


H.            Tranche
A-2.  Borrower, at Borrower’s option, may solicit
and obtain a lender, which lender must be an Eligible Assignee, consistent with
Section 9.1 B above, for the purpose of committing to fund the portion of
Tranche A-2 that, as of the Closing Date, is not covered by a Loan Commitment
of a Lender.  Upon execution and delivery
of an Assumption Agreement, agreeing to be bound by the terms of this Agreement
and the Loan Documents, such lender may and shall become a Lender hereunder.


 


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9.2         Expenses;
Indemnity; Damage Waiver.


 


A.            Costs and Expenses.  In addition to (but not in duplication of)
the administrative fee set forth in Section 2.6, and the reimbursement of
costs and expenses the Borrower has heretofore agreed to in writing to pay to
the Agent, the Borrower shall pay: (i) all reasonable, actual
out-of-pocket expenses incurred by the Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Agent and its
Affiliates incurred in the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any
amendments, Modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated); (ii) all out-of-pocket expenses incurred by the Agent or,
following the occurrence and during the continuance of an Event of Default, any
Lender, including documentary, stamp or similar taxes and the fees, charges and
disbursements of any counsel for the Agent or any Lender, in connection with
the enforcement or protection of their rights in connection with this Agreement
and the other Loan Documents, including its rights under this Section 9.2A,
or in connection with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans, and (iii) all reasonable, actual
out-of-pocket expenses incurred by the Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Agent and its
Affiliates, in connection with each Permitted Collateral Asset Sale and loan
disbursement requested pursuant to Section 3.3.


 


B.            Indemnification by the Borrower.  The Borrower shall indemnify Agent (and any
sub-Agent thereof), each Lender and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any outside counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder
or the consummation of the transactions contemplated hereby or thereby, (ii) any
Loan or the use of the proceeds therefrom, (iii)  any actual or alleged
presence or release of Hazardous Materials on or from any property, or any
Environmental Claim related in any way to the Borrower or any of its
Subsidiaries or any guarantor, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including, without
limitation, under applicable laws relating to preference and fraudulent
transfers and conveyances) and regardless of whether any Indemnitee is a party
thereto and whether such matter is initiated by a third party or by the
Borrower or any of its Affiliates, provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.


 


C.            Reimbursement by the Lenders.  To the extent that the Borrower fails to pay
any amount required under Section 9.2A or 9.2B to be paid by it to Agent
(or any sub-Agent thereof) or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Agent (or any such sub-Agent) or such
Related Party, as the case may be, such Lender’s Pro Rata Share (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against Agent (or any such sub-Agent) in its
capacity as such, or against any Related Party of any of the foregoing acting
for Agent (or any such sub- Agent) in connection with such capacity.  The obligations of the Lenders under this Section 9.2C
are subject to the provisions of Section 9.12.


 


101

















 


D.            Waiver of Consequential Damages, Etc.  To the fullest extent permitted by Applicable
Law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any
Loan  or the use of the proceeds
thereof.  No Indemnitee referred to in Section 9.2B
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby, unless such damages are directly caused solely
by the gross negligence or willful misconduct of such Indemnitee as determined
by a court of competent jurisdiction by final and nonappealable judgment.


 


E.             Payments.  All amounts due under this Section 9.2
shall be payable promptly after demand therefor.


 


9.3         Right of Set-Off.


 


Without
limitation of any other rights of the Agent or Lenders, if an Event of
Default shall have occurred and be continuing, subject to the Agent’s consent,
Agent, Lender and each of their respective Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by Applicable
Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by Agent, Lender, or any
such Affiliate to or for the credit or the account of the Borrower against any
and all of the Obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to Agent or Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
any other Loan Document and although such Obligations of the Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such
indebtedness.  Agent and each Lender
agrees promptly to notify the Borrower and the Agent after any such setoff and
application; provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


9.4         Sharing of Payments
by Lenders.


 


If any Lender
shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or other
obligations hereunder resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of its Loans and accrued interest thereon or
other such obligations greater than its Pro Rata Share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify
the Agent of such fact, and (b) purchase (for Cash at face value)
participations in the Loans and such other obligations of the other Lenders, or
make such other adjustments as shall be equitable, to the end that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Loans and other amounts owing them; provided that (i)  if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and (ii)  the
provisions of this paragraph shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiaries thereof (as to which the provisions of this paragraph shall
apply).  The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under Applicable
Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff


 


102

















 


and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.


 


9.5         Amendments and
Waivers.


 


A.            Amendment and Waivers.  No amendment, Modification, termination or
waiver of any provision of this Agreement or of the Notes, or consent to any
departure by the Borrower or any other Loan Party therefrom, shall in any event
be effective without the written concurrence of the Requisite Lenders; provided
that any such amendment, Modification, termination, waiver or consent
which:  (a) reduces or forgives the
principal amount of any of the Loans; (b) reduces or increases the
percentage specified in the definition of the “Requisite Lenders” (it being
understood that, with the consent of the Requisite Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
definition of the “Requisite Lenders” on substantially the same basis as the
Loans which are included on the Closing Date); (c) changes in any manner
any provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of all the Lenders; (d) postpones the scheduled
final maturity date of any of the Loans; (e) postpones the date or reduces
the amount of any scheduled payment (but not prepayment) of principal of any of
the Loans; (f) postpones the date on which any interest, any fees or any
amounts due under Section 2.7B(ii) are payable; (g) decreases
the interest rate borne by any of the Loans (other than any waiver of any
increase in the interest rate applicable to any of the Loans pursuant to Section 2.5E)
or the amount of any fees payable hereunder or any amounts payable under Section 2.7B(ii);
(h) increases the Loan Commitment of any Lender permitted hereunder (other
than with respect to Tranche A-2, up to a maximum amount of $10,000,000, and
subject to the provisions of Section 9.1H herein); (i) releases all
or substantially all of the Collateral or any of the Guaranties (except to the
extent otherwise required or permitted to be released under the terms of the
Loan Documents); and (j) changes in any manner the provisions contained in  Section 7.1 or
this Section 9.5; shall be effective only if evidenced by a writing signed
by or on behalf of all the Lenders to whom Obligations are owed being directly
affected by such amendment, Modification, termination, waiver or consent (the
consent of the Requisite Lenders not being required for any such change); provided,
further that any amendment, Modification, termination, waiver or consent
which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,”
or “Fund,” shall be effective only if evidenced by a written concurrence of the
Requisite Lenders and the Agent.  In addition,
(i) any amendment, Modification, termination or waiver of any of the
provisions contained in Section 3.2, and changes to the “Schedules of
Approved Sales Prices” Agent’s approval rights over “Change Orders”, the “Development
Budget”, “Development Draw Schedule”, “Development Schedule” changes to “Minimum
Sales Prices”, “Payment and Performance Bond” and changes for periods following
the Closing Date shall be effective only if evidenced by a writing signed by or
on behalf of the Agent and the Requisite Lenders, (ii) no amendment,
Modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, (iii) no amendment, Modification, termination or waiver of any
provision of Section 8 or of any other provision of this Agreement which,
by its terms, expressly requires the approval or concurrence of the Agent shall
be effective without the written concurrence of the Agent and (iv) in each
instance where approval of the Agent is required in Sections 2.12B, 5.24, 5.25B
and 9.3, such approval shall also be required from the Requisite Lenders.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances. 
Any amendment, Modification, termination, waiver or consent effected in
accordance with this Section 9.5 shall be binding upon each Lender at the
time outstanding, each future Lender and, if signed by the Borrower, on the
Borrower.


 


B.            Non-Consenting Lenders.  Each Lender grants (x) to the Agent the
right, but not the obligation, to purchase all (but not less than all) of such
Lender’s Loan Commitments and Loans owing to it and the Notes held by it and
all of its rights and obligations hereunder and under the other Loan


 


103

















 


Documents, and (y) to the Borrower the
right to cause an assignment of all (but not less than all) of such Lender’s
Loans owing to it, its participations in the Notes held by it and all of its
rights and obligations hereunder and under the other Loan Documents to Eligible
Assignees, which right may be exercised by the Agent or the Borrower, as the
case may be, if such Lender (a “Non-Consenting
Lender”) refuses to execute any amendment, waiver or consent
which requires the written consent of 
Lenders other than Requisite Lenders and to which the Requisite Lenders,
the Agent and the Borrower has otherwise agreed; provided that such
Non-Consenting Lender shall receive, in connection with such assignments,
payment equal to the aggregate amount of outstanding Loans owed to such Lender
(together with all accrued and unpaid interest, fees and other amounts (other
than indemnities) owed to such Lender). 
Each Lender agrees that if the Agent or the Borrower, as the case may
be, exercises their option hereunder, it shall promptly execute and deliver all
agreements and documentation necessary to effectuate such assignment as set
forth in Section 9.1.  The Borrower
shall be entitled (but not obligated) to execute and deliver such agreement and
documentation on behalf of such Non-Consenting Lender and any such agreement
and/or documentation so executed by the Borrower shall be effective for
purposes of documenting an assignment pursuant to Section 9.1.


 


9.6         Independence of
Covenants.


 


All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the limitations of,
another such covenant shall not avoid the occurrence of a Default or Event of Default
if such action is taken or condition exists.


 


9.7         Notices.


 


A.            Notices Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in Section 9.7B below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows:


 


	
  If to Borrower:

  	
   

  	
  Royal Islands Bahamas Ltd.

  
	
   

  	
   

  	
  One Cumberland Street

  
	
   

  	
   

  	
  P.O. Box N-1991

  
	
   

  	
   

  	
  Nassau, The Bahamas

  
	
   

  	
   

  	
  Attention: Treasurer

  
	
   

  	
   

  	
  Facsimile: (242) 323-0641

  
	
   

  	
   

  	
   

  
	
  with copies
  to:

  	
   

  	
  Cypress
  Equities I, LP

  
	
   

  	
   

  	
  15601 Dallas
  Parkway, Suite 400

  
	
   

  	
   

  	
  Addison,
  Texas 75001

  
	
   

  	
   

  	
  Attention:
  Rick Bower, Senior Vice 

                   President
  of Finance

  
	
   

  	
   

  	
  Facsimile:
  (972) 361-5928

  
	
   

  	
   

  	
   

  
	
  with copies
  to:

  	
   

  	
  RIBL US
  Borrower LLC

  
	
   

  	
   

  	
  790 East
  Broward Boulevard Suite 201-B

  
	
   

  	
   

  	
  Fort
  Landerdale, Florida 33301

  
	
   

  	
   

  	
  Attention:
  Bob Dwors

  
	
   

  	
   

  	
  Facsimile:
  (954) 779-2468

  



 


104

















 


	
  with copies
  to:

  	
   

  	
  Vinson &
  Elkins LLP

  
	
   

  	
   

  	
  Trammell
  Crow Center

  
	
   

  	
   

  	
  2001 Ross
  Avenue, Suite 3700

  
	
   

  	
   

  	
  Dallas,
  Texas 75201

  
	
   

  	
   

  	
  Attention:
  William D. Young, Esq.

  
	
   

  	
   

  	
  Facsimile:
  (214) 999-7805

  
	
   

  	
   

  	
   

  
	
  If to the
  Agent:

  	
   

  	
  iStar
  Financial Inc.

  
	
   

  	
   

  	
  1114 Avenue
  of the Americas

  
	
   

  	
   

  	
  New York,
  New York 10036

  
	
   

  	
   

  	
  Attention:
  Chief Operating Officer

  
	
   

  	
   

  	
  Facsimile:
  (212) 930-9494

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  iStar
  Financial Inc.

  
	
   

  	
   

  	
  1114 Avenue
  of the Americas

  
	
   

  	
   

  	
  New York,
  New York 10036

  
	
   

  	
   

  	
  Attention:
  General Counsel

  
	
   

  	
   

  	
  Facsimile:
  (212) 930-9492

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  iStar Asset
  Services Inc.

  
	
   

  	
   

  	
  180
  Glastonbury Boulevard, Suite 201

  
	
   

  	
   

  	
  Glastonbury,
  Connecticut 06033

  
	
   

  	
   

  	
  Attention:
  President (Loan No. M00150401)

  
	
   

  	
   

  	
  Facsimile:
  (860) 815-5901)

  
	
   

  	
   

  	
   

  
	
  (except with
  respect to notices given under Article 2 hereof) with copies to:

  	
   

  	
  Katten
  Muchin Rosenman LLP

  525 West Monroe Street, Suite 1900

  
	
   

  	
   

  	
  Chicago,
  Illinois 60661

  
	
   

  	
   

  	
  Attention:
  Ann Marie Sink, Esq.

  
	
   

  	
   

  	
  Facsimile:
  (312) 902-1061

  



 


If to a
Lender, to it at its address (or telecopier number) set forth on such Lender’s
signature page attached hereto. 
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given on the same
Business Day as when sent, provided that the sender has received electronic
evidence of receipt.  Notices delivered
through electronic communications to the extent provided in Section 9.7B
below, shall be effective as provided in said Section 9.7B.


 


B.            Electronic Communications.  Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Agent, provided that the foregoing shall not apply to notices
to any Lender pursuant to Section 2.3, if such Lender has notified the
Agent that it is incapable of receiving notices under such Section by
electronic communication.  The Agent or the
Borrower may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may
be limited to particular notices or communications.  Unless the Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgment from the intended recipient
(such as by the “return receipt requested” function, as available, return
e-mail or other written acknowledgment), provided that if such notice or
other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next Business Day


 


105

















 


for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor.  Agent and Lenders each hereby
agrees to receive notices electronically as provided in this Section 9.7B,
provided, that such notices shall not be effective unless notice has
also been properly given by another means as provided in Section 9.7A
above.


 


C.            Change of Address, Etc.  Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto.


 


9.8         Survival of
Representations, Warranties and Agreements.


 


All
representations, warranties and agreements made herein shall survive the
execution and delivery of this Agreement and the making of the Loans hereunder.


 


Notwithstanding
anything in this Agreement or implied by law to the contrary, the agreements of
the Borrower set forth in Sections 2.10, 9.2, and 9.18 and the agreements of
the Lenders set forth in Sections 8.2, 8.3, 8.4, 9.2C, 9.3, 9.4 and 9.19 shall
survive the payment of the Loans and the reimbursement of any amounts drawn or
paid thereunder, and the termination of this Agreement.


 


9.9         Failure or
Indulgence Not Waiver; Remedies Cumulative.


 


No failure or
delay on the part of Agent or any Lender in the exercise of any power, right or
privilege hereunder or under any other Loan Document shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power,
right or privilege.  All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.


 


9.10       Marshalling;
Payments Set Aside.


 


Neither Agent
nor any Lender shall be under any obligation to marshal any assets in favor of
the Borrower or any other party or against or in payment of any or all of the
Obligations.  To the extent that the
Borrower makes a payment or payments to the Agent or the Lenders (or to the
Agent for the benefit of the Lenders), or Agent or the Lenders enforce any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.


 


9.11       Severability.


 


In case any
provision in or obligation under this Agreement or the Notes shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.


 


106

















 


9.12       Obligations Several;
Independent Nature of the Lenders’ Rights.


 


The
obligations of the Lenders hereunder are several and no Lender shall be
responsible for the obligations or Loan Commitments of any other Lender
hereunder.  Nothing contained herein or
in any other Loan Document, and no action taken by the Lenders pursuant hereto
or thereto, shall be deemed to constitute the Lenders as a partnership, an
association, a joint venture or any other kind of entity.  The amounts payable at any time hereunder to
each Lender shall be a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.


 


9.13       Maximum Amount.


 


A.            It is the intention of the Borrower
and the Lenders to conform strictly to the usury and similar laws relating to
interest from time to time in force, and all agreements between the Loan
Parties and their respective Subsidiaries and the Lenders, whether now existing
or hereafter arising and whether oral or written, are hereby expressly limited
so that in no contingency or event whatsoever, whether by acceleration of
maturity hereof or otherwise, shall the amount paid or agreed to be paid in the
aggregate to the Lenders as interest (whether or not designated as interest,
and including any amount otherwise designated but deemed to constitute interest
by a court of competent jurisdiction) hereunder or under the other Loan
Documents or in any other agreement given to secure the Indebtedness or
obligations of the Borrower to the Lenders, or in any other document
evidencing, securing or pertaining to the Indebtedness evidenced hereby, exceed
the maximum amount permissible under applicable usury or such other laws (the “Maximum
Amount”).  If under
any circumstances whatsoever fulfillment of any provision hereof, or any of the
other Loan Documents, at the time performance of such provision shall be due,
shall involve exceeding the Maximum Amount, then, ipso facto, the obligation to
be fulfilled shall be reduced to the Maximum Amount.  For the purposes of calculating the actual
amount of interest paid and/or payable hereunder in respect of laws pertaining
to usury or such other laws, all sums paid or agreed to be paid to the holder
hereof for the use, forbearance or detention of the Indebtedness of the
Borrower evidenced hereby, outstanding from time to time shall, to the extent
permitted by Applicable Law, be amortized, pro-rated, allocated and spread from
the date of disbursement of the proceeds of the Notes until payment in full of
all of such Indebtedness, so that the actual rate of interest on account of
such Indebtedness is uniform through the term hereof.  The terms and provisions of this Section shall
control and supersede every other provision of all agreements between the
Borrower or any endorser of the Notes and the Lenders.


 


B.            If under any circumstances any
Lender shall ever receive an amount which would exceed the Maximum Amount, such
amount shall be deemed a payment in reduction of the principal amount of the
Loans and shall be treated as a voluntary prepayment under Section 2.7A(i) and
shall be so applied in accordance with Section 2.7 hereof or if such
excessive interest exceeds the unpaid balance of the Loans and any other
Indebtedness of the Borrower in favor of such Lender, the excess shall be
deemed to have been a payment made by mistake and shall be refunded to the
Borrower.


 


9.14       Headings.


 


Section and
Section headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.


 


107

















 


9.15       Applicable Law.


 


THIS
AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


9.16       Successors and Assigns.


 


This Agreement
shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to the benefit of the parties hereto and the successors
and assigns of the Lenders (it being understood that the Lenders’ rights of assignment
are subject to Section 9.1). 
Neither the Borrower’s rights or obligations hereunder nor any interest
therein may be assigned or delegated by the Borrower without the prior written
consent of all Lenders.


 


9.17       Consent to
Jurisdiction and Service of Process.


 


A.            SUBMISSION
TO JURISDICTION.  EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN
NEW YORK CITY AND OF THE UNITED STATES DISTRICT COURT SITTING IN NEW YORK CITY,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT.  EACH OF THE PARTIES HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.  NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT
OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


B.            WAIVER
OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN  SECTION 9.17A.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.


 


C.            Service of Process.  Each party hereto irrevocably consents to
service of process in the manner provided for notices in Section 9.7.  Nothing in this Agreement will affect the
right of any party hereto to serve process in any other manner permitted by
Applicable Law.


 


108

















 


9.18       Waiver of Jury Trial.


 


EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


9.19       Confidentiality.


 


Each of the
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to it,
its Affiliates’ and their respective partners, directors, officers, employees,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential as provided
herein), (b) to the extent requested by any regulatory authority
(including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by Applicable Laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder in each case during the existence of an Event of
Default, (f) subject to an agreement containing provisions substantially
the same as those of this Section 9.19, to (i) any assignee or
pledgee of or Participant in, or any prospective assignee or pledgee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower (such consent not to be unreasonably withheld or
delayed) or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Agent or any Lender on a nonconfidential basis from a source
other than the Borrower or any of its Subsidiaries or Affiliates.


 


For purposes
of this Section 9.19, “Information”
means all written or oral information received from the Borrower or any of its
Subsidiaries or Affiliates relating to the Borrower or any of its Subsidiaries
or any of their respective businesses, other than any such information that is
available to the Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower.  Any Person
required to maintain the confidentiality of Information as provided in this Section 9.19
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential
information.


 


9.20       Limitation of
Liability.


 


The Loans and
Obligations hereunder shall be recourse to the Borrower at all times.  Certain obligations of the Borrower and its
Subsidiaries are guaranteed by (i) the Sponsor Guarantor pursuant to the
Recourse Guaranty and the Non-Recourse Guaranty and (ii) the Subsidiary
Guarantors pursuant to the


 


109

















 


Subsidiary Guaranty, respectively. 
Except for the obligations of (i) the Sponsor Guarantor under the
Recourse Guaranty and the Non-Recourse Guaranty, (ii) the Subsidiary
Guarantors under the Subsidiary Guaranty and (iii) the Shareholder Pledgor
under the Pledge Agreement, in no event shall the properties or assets of the
direct or indirect owners of Borrowers, or any directors, officers or managers
thereof be subject to satisfaction of any liabilities or obligations of
Borrower under any Loan Documents.


 


9.21       Counterparts;
Integration; Effectiveness; Electronic Execution.


 


A.            Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract.  This
Agreement and any separate letter agreements with respect to fees payable to
the Agent constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  This Agreement shall become effective when it
shall have been executed by the Agent and when the Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto required pursuant to Section 3, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. 
Delivery of an executed counterpart of a signature page of this
Agreement or any document or instrument delivered in connection herewith by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement or such other document or instrument, as applicable.


 


B.            Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,”
and words of like import in any Assignment Agreement shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any Applicable Law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.


 


9.22       USA Patriot Act
Notification.


 


The following
notification is provided to the Borrower pursuant to Section 326 of the
USA Patriot Act of 2001, 31 U.S.C. Section 5318, as amended:


 


IMPORTANT INFORMATION
ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT.


 


To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each Person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product.


 


What this
means for the Borrower:  When the
Borrower opens an account, if the Borrower is an individual, the Agent and the
Lenders will ask for the Borrower’s name, residential address, tax
identification number, date of birth, and other information that will allow the
Agent and the Lenders to identify the Borrower, and, if the Borrower is not an
individual, the Agent and the Lenders will ask for the Borrower’s name, tax
identification number, business address, and other information that will allow
the Agent and the Lenders to identify the Borrower.  The Agent and the Lenders may also ask, if
the Borrower is an individual, to see the Borrower’s driver’s license or other
identifying documents, and, if the Borrower is not an individual, to see the
Borrower’s legal organizational documents or other identifying documents.


 


110

















 


9.23       Lender Disclosure.  The Borrower, Sponsor Guarantor, Lenders, and
Agent, for themselves and their respective Related Parties (collectively, the “Loan
Group”), hereby acknowledge that each of Behringer Harvard RI Lender, LLC, a
Delaware limited liability company (“Behringer”) and CSSF Master Fund, LP, a
Texas limited partnership (“CSSF”) is a Lender hereunder and that each of
Behringer and CSSF and/or its affiliates also has an interest, directly or
indirectly, in the Borrower.  The Loan
Group agrees that (a) with respect to all matters relating to the Project,
the Loans, the Loan documents, any Loan Parties, and any matters arising under
or in connection with any of the above, neither CSSF or Behringer shall  owe any fiduciary duty or other duty of
loyalty to any of the Loan Group, (b) each of CSSF and Behringer may act
in its own self interest with respect to the Project, the Loans, the Loan
Documents and all matters arising under or in connection with any of the above
)including, but not limited to, exercising all rights and remedies of a Lender
or Loan Party thereunder), regardless of the impact of any of the Loan Parties,
(c) except as otherwise expressly required in this Agreement, neither CSSF
or Behringer shall have any duty to disclose information relating to the
Project, the Loans, the Loan documents or any matters arising under or in
connection with any of the above to any of the Loan Parties or consult with any
of the Loan Parties with respect to the Project, the Loans, the Loan Documents
or any matters arising under or in connection with any of the above, and (d) neither
CSSF or Behringer shall have any liability to any Loan Party for its good faith
reliance on the provisions of this Section 9.23.  The provisions of this Section 9.23 are
in addition to, and not in derogation of, any other exculpation and/or
limitations contained in this Agreement or between the provisions of this Section 9.23
and any other provision of this Agreement or of any of the other Loan Documents,
the provisions of this Section 9.23 shall control.


 


111

















 


IN
WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.


 


THE
BORROWER:


 


	
   

  	
  ROYAL
  ISLAND BAHAMAS LTD,

  
	
   

  	
  a Bahamian company

  
	
   

  
	
   

  
	
   

  	
  By:

  	
  /s/ Brian Parro

  	
   

  
	
   

  	
  Name: Brian Parro

  
	
   

  	
  Title: Director

  
	
   

  
	
   

  
	
   

  	
  ROYAL
  ISLAND GOLF CLUB BAHAMAS LTD,

  
	
   

  	
  a Bahamian company

  
	
   

  
	
   

  
	
   

  	
  By:

  	
  /s/ Brian Parro

  
	
   

  	
  Name: Brian Parro

  
	
   

  	
  Title: Director

  
	
   

  
	
   

  
	
   

  	
  RIBL US
  BORROWER LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  
	
   

  
	
   

  	
  By:

  	
  /s/ Brian Parro

  	
   

  
	
   

  	
  Name: Brian Parro

  
	
   

  	
  Title: Vice President

  
					



 

















 


AGENT AND
LENDERS:


 


	
   

  	
  iSTAR
  FINANCIAL INC.,

  
	
   

  	
  a Maryland corporation, individually as a
  Lender 

  and as the Agent

  
	
   

  	
   

  
	
   

  
	
   

  	
  By:

  	
          /s/
  Daniel Abrams

  	
   

  
	
   

  	
  Name: Daniel Abrams

  
	
   

  	
  Title: Executive Vice President

  
	
   

  
	
   

  	
  Address: 1114 Avenue of the Americas

  
	
   

  	
                  39th
  Floor

  
	
   

  	
                  New
  York, New York 10036

  
	
   

  	
                  Attention:
  Chief Operating Officer

  
	
   

  
	
   

  
	
   

  	
  BEHRINGER HARVARD RI LENDER, LLC,

  
	
   

  	
  a Delaware limited liability company, a Lender

  
	
   

  
	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  	
   

  
	
   

  	
  Name:  Gerald J. Reihsen, III

  
	
   

  	
  Title:  Secretary

  
	
   

  
	
   

  	
  Address: 15601 Dallas Parkway

  
	
   

  	
                  Suite 600

  
	
   

  	
                  Addison,
  Texas 75001

  
	
   

  	
                  Attention:
  James Fant

  
	
   

  
	
   

  
	
   

  	
  CSSF MASTER FUND, LP,

  
	
   

  	
  a Texas limited partnership, a Lender

  
	
   

  
	
   

  	
  By:

  	
    /s/ Warren W. Garden

  	
   

  
	
   

  	
  Name:    Warren W. Garden

  
	
   

  	
  Title: Authorized Agent

  
	
   

  
	
   

  	
  Address: 100 Crescent Court

  
	
   

  	
                  Suite 475

  
	
   

  	
                  Dallas,
  Texas 75201

  
	
   

  	
                  Attention:
  J. Richard Rees

  
					



 

















 


APPENDIX A


 


APPLICABLE MARGINS


 


BASE RATE MARGIN


 


	
  Until Maturity Date

  	
   

  	
  Tranche A-1:

  	
  500 bps

  
	
   

  	
   

  	
  Tranche A-2:

  	
  650 bps

  
	
   

  	
   

  	
  Tranche B:

  	
  800 bps

  
	
   

  	
   

  	
   

  
	
  From Maturity Date to Extended Maturity
  Date

  	
   

  	
  Tranche A-1:

  	
  700 bps 

  
	
   

  	
   

  	
  Tranche A-2:

  	
  850 bps

  
	
   

  	
   

  	
  Tranche B:

  	
  1000 bps

  



 


1

















 


Exhibit A

Legal Description


 


A.            ALL that
Island known as “Royal Island” one of the Islands of the Commonwealth of The
Bahamas situate between Latitude 25° and 26’ and Longitude 76° and 77’ near Egg
Island and in the vicinity of the Northern end of the Island of Eleuthera
another Island in the said Commonwealth.


 


B.            ALL that Cay known as “Rat
Cay” one of the Islands of the Commonwealth of The Bahamas situate
approximately in Latitude 25° and 31’ North and Longitude 76° and 53 1⁄2’ West
near Royal Island and in the vicinity Eleuthera another island in the said
Commonwealth which said Cay has such position shape boundaries marks and
dimensions as are shown on a plan attached to a Crown Grant dated the 12th
April, 1937 in favour of Woodford Thomas Stewart and recorded in the Registry
of Records in the City of Nassau in the said Commonwealth in book R 19 at page 202.


 


C.            ALL that Cay known as “Chicken
Cay” one of the islands of the Commonwealth of The Bahamas containing Seventeen
(17) acres near Royal Island and in the vicinity of Eleuthera another Island in
the said Commonwealth which said Cay has position shape boundaries marks and
dimensions as are shown on a plan attached to a Crown Grant 20th November, 1919
in favour of J. Dorsett, L. Albury and M. Leveaux and recorded in the Registry
of Records in the City of Nassau in the said Commonwealth in book Y 10 at page 296.


 
















 


Exhibit G-1

Bailment Letter


 


[TO BE OBTAINED FROM WAREHOUSEMAN


WHO IS STORING THE MATERIALS]


 


[TO BE PLACED ON THE LETTERHEAD OF WAREHOUSEMAN
[1]]


 


CERTIFIED
MAIL (RETURN RECEIPT REQUESTED)


 


                        ,
20         [2]


 


[Insert Lender’s Name [A]]


c/o
iStar Financial, Inc.


1114
Avenue of the Americas


38th
Floor


New
York, New York 10036


Attention:  Nina B. Matis, Esq.


 


Re:          [Insert
Borrower’s name [B]] – Bailee Letter


 


Dear
Madam:


 


We
hereby acknowledge that
                                  
[Insert Borrower’s name
[B]], a
                        
                        
[Insert type of entity [C]]
(“Borrower”), has entered into a (1) [Development Loan and Security Agreement  –
Confirm Document Title [D]] (“Loan Agreement”) with you and a (2) [Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing – Confirm
Document Title [E]] (“Mortgage”)
in favor of you, pursuant to which documents Borrower has granted to you a
first priority security interest in the materials, including those listed in
Appendix A attached hereto, and proceeds thereof (the “Materials”).  We further acknowledge that, pursuant to our
agreements with Borrower, we have received and are maintaining possession of
the Materials, which are presently kept at our premises located at: 
                                      
[Insert address of facilities [3]].  We further acknowledge that we have received
and hold possession of the Materials for your benefit and that we shall
continue to hold possession of the Materials for your benefit until the first
to occur of (i) we receive written notice from you that your security
interest has been terminated or (ii) the Materials are delivered to the
Borrower’s construction site located at
                                      
[Insert location of
Development [F]].


 


We
hereby waive, surrender and relinquish any rights in or to the Materials,
including, without limitation, any security interests and any liens, including,
without limitation warehouse or similar liens, either as provided by applicable
law or to which we may otherwise be entitled. 
We agree that no negotiable warehouse receipts or documents of title
will be issued covering the Materials.  We
also agree that we have not acquired any rights in the Materials sufficient to
transfer an interest or grant a security interest in or to the Materials.


 


Borrower
has informed us that, according to the terms of the Loan Agreement and the
Mortgage, you have the right to inspect the Materials and, upon default by
Borrower, the right to take possession of the Materials upon payment in full of
all storage charges incurred by the Borrower and owing to us.  We agree to permit you and/or your
representative access to the Materials at your request without first receiving
the consent or permission of Borrower. 
Additionally, we give you and your representative the right to remove
the Materials upon our receipt of notice from you of Borrower’s default,
without first 


 


1

















 


receiving
the consent or permission of Borrower, after payment of any outstanding storage
charges incurred by the Borrower.


 


	
   

  	
  Very
  truly yours,

  
	
   

  
	
   

  	
      [4]                               

  	
  ,
  a

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
                [5]

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


2

















 


APPENDIX A


 


MATERIALS


 


[6]


 


3

















 


Instructions to Warehouseman on How to Complete


Exhibit G-1


 


The numbered items below
refer to the bracketed numbers set forth in the form of Exhibit G-1
to which these instructions are attached.


 


To complete this letter, the
following items must be completed by the warehouseman who is storing Materials.


 


	
  Item

  	
   

  	
  Instructions

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Delete this note line, and all lines above it and
  have completed letter put on warehouseman’s letterhead.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Insert date the letter is executed by you, the
  warehouseman, and remove bracketed number.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Insert address where Materials are being stored and
  remove bracketed text.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Insert your firm’s complete name, state of
  formation, and type of entity (i.e. ABC Storage, Inc., a New York
  corporation; 123 Warehouse LLC, a Delaware limited liability company), and
  remove brackets and number.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Have a person with authority to bind your firm
  execute this letter, insert such person’s name and title in space indicated,
  and remove brackets and number.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Add or attach a complete list of all Materials being
  stored for this project onto or as Appendix A and remove brackets and number.

  



 


4

















 


Instructions to Attorney on How to Complete


Exhibit G-1


 


The lettered items below
refer to the bracketed letters set forth in the form of Exhibit G-1
to which these instructions are attached.


 


The following items must be
completed by the Attorney who is drafting the Loan Agreement to which this
exhibit is attached (or otherwise these items should be completed before
sending on to warehouseman).


 


	
  Item

  	
   

  	
  Instructions

  
	
   

  	
   

  	
   

  
	
  A.

  	
   

  	
  Insert Lender’s complete name and remove brackets
  and related text.

  
	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Insert Borrower’s complete name and remove brackets
  and related text (2 places).

  
	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Insert Borrower’s state of formation and type of
  entity (i.e. a New York corporation, a Delaware limited liability company)
  and remove brackets and related text.

  
	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Insert exact title of loan agreement and remove
  brackets and related text.

  
	
   

  	
   

  	
   

  
	
  E.

  	
   

  	
  Insert exact title of mortgage or deed of trust and
  remove brackets and related text.

  
	
   

  	
   

  	
   

  
	
  F.

  	
   

  	
  Insert location of development/construction site and
  remove brackets and related text.

  



 


5

















 


Exhibit G-2

Bailment Letter


 


[TO BE OBTAINED FROM CONTRACTOR OR MANUFACTURER
WHICH MANUFACTURED OR SUPPLIED MATERIALS AND IS STORING THEM AT THEIR FACILITY
OR ON ITS LOT]


 


[TO BE PLACED ON THE LETTERHEAD OF CONTRACTOR OR
MANUFACTURER [1]]


 


CERTIFIED
MAIL (RETURN RECEIPT REQUESTED)


 


                        ,
20         [2]


 


[Insert Lender’s Name [A]]


c/o
iStar Financial, Inc.


1114
Avenue of the Americas


38th
Floor


New
York, New York 10036


Attention:  Nina B. Matis, Esq.


 


Re:          [Insert
Borrower’s name [B]] – Bailee Letter


 


Dear
Madam:


 


We
hereby acknowledge that (i) we have manufactured or supplied the materials
listed in Appendix A attached hereto, (ii) we have not yet been paid
in full for such materials, (iii) we are owed
$      [3]       
as payment for such materials, which amount is inclusive of applicable
retainage, if any, (iv) upon our receipt of payment in the amount set
forth above (in clause iii), title shall immediately transfer to Borrower, and (v) we
are storing, and after receipt of the payment in the amount set forth above (in
clause iii) we shall continue to store such materials at our premises located
at: 
                                            
[Insert address of
facilities [4]]. 
We further hereby acknowledge that
                                  
[Insert Borrower’s name [B]],
a
                        
                        
[Insert type of entity
[C]] (“Borrower”), has
entered into a (1) [Development
Loan and Security Agreement  – Confirm Document Title [D]] (“Loan Agreement”) with you and a (2) [Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing – Confirm
Document Title [E]] (“Mortgage”)
in favor of you, pursuant to which documents Borrower has granted to you a first
priority security interest in the materials, including those listed in Appendix
A attached hereto, and proceeds thereof (the “Materials”).  Upon our receipt of the payment referenced in
clause (iii) above, we shall continue to hold possession of the Materials
for your benefit until the first to occur of (a) we receive written notice
from you that your security interest has been terminated or (b) the
Materials are delivered to the Borrower’s construction site located at
                                      
[Insert location of
Development [F]].


 


Upon
our receipt of the payment referenced in clause (iii) above, we shall be
deemed to have waived, surrendered and relinquished any rights in or to the
Materials, including, without limitation, any security interests and any liens,
including, without limitation warehouse or similar liens, either as provided by
applicable law or to which we may otherwise be entitled.  We agree that no negotiable warehouse
receipts or documents of title will be issued covering the Materials.  Upon our receipt of the payment referenced in
clause (iii) above, we shall be deemed to have agreed that we have not
acquired and shall not acquire any rights in the Materials sufficient to
transfer an interest or grant a security interest in or to the Materials.


 


1

















 


Borrower
has informed us that, according to the terms of the Loan Agreement and the
Mortgage, you have the right to inspect the Materials and, upon default by
Borrower, the right to take possession of the Materials upon payment in full of
all storage charges incurred by the Borrower and owing to us.  We agree to permit you and/or your
representative access to the Materials at your request without first receiving
the consent or permission of Borrower. 
Additionally, following our receipt of the payment referenced in clause (iii) above,
we give you and your representative the right to remove the Materials upon our
receipt of notice from you of Borrower’s default, without first receiving the
consent or permission of Borrower, after payment of any outstanding storage
charges incurred by the Borrower.


 


	
   

  	
  Very
  truly yours,

  
	
   

  
	
   

  	
      [5]                               

  	
  ,
  a

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
                [6]

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


2

















 


APPENDIX A


 


MATERIALS


 


[7]


 


3

















 


Instructions to Contractor or Manufacturer to Complete


Exhibit G-2


 


The numbered items below
refer to the bracketed numbers set forth in the form of Exhibit G-2
to which these instructions are attached.


 


To complete this letter, the
following items must be completed by the Contractor or Manufacturer who is
storing the Materials at a facility they own or control.


 


	
  Item

  	
   

  	
  Instructions

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Delete this note line, and all lines above it and
  have completed letter put on Contractor’s or Manufacturer’s letterhead.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Insert date the letter is executed by you, the
  Contractor or Manufacturer, and remove bracketed number.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Insert amount owed for just the Materials. Do not
  include installation or delivery/rigging costs and remove bracketed number.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Insert address where Materials are being stored and
  remove brackets and related text.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Insert your firm’s complete name, state of
  formation, type of entity (i.e., ABC Curtain Wall, Inc., a New York
  corporation; 123 Heating LLC, a Delaware limited liability company), and
  remove brackets and number.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Have a person with authority to bind your firm
  execute this letter, insert such person’s name and title in space indicated,
  and remove brackets and number.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Add or attach complete list of Materials being
  stored for this project onto or as Appendix A and remove brackets and
  number.

  



 


4

















 


Instructions to Attorney on How to Complete


Exhibit G-2


 


The lettered items below
refer to the bracketed letters set forth in the form of Exhibit G-2
to which these instructions are attached.


 


The following items must be
completed by the Attorney who is drafting the Loan Agreement to which this
exhibit is attached (or otherwise these items should be completed before
sending on to Contractor or Manufacturer).


 


	
  Item

  	
   

  	
  Instructions

  
	
   

  	
   

  	
   

  
	
  A.

  	
   

  	
  Insert Lender’s complete name and remove brackets
  and related text.

  
	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Insert Borrower’s complete name and remove brackets
  and related text (2 places).

  
	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Insert Borrower’s state of formation and type of
  entity (i.e. a New York corporation, a Delaware limited liability company)
  and remove brackets and related text.

  
	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Insert exact title of loan agreement and remove
  brackets and related text.

  
	
   

  	
   

  	
   

  
	
  E.

  	
   

  	
  Insert exact title of mortgage or deed of trust and
  remove brackets and related text.

  
	
   

  	
   

  	
   

  
	
  F.

  	
   

  	
  Insert location of development/construction site and
  remove brackets and related text.

  



 


5

















 


Schedule 1.4(A)

Plans and Specifications


 


1

















 


Schedule
1.4(C)

Request for Advance


 


	
  Borrower’s
  Sworn Statement

  
	
   

  
	
  Lender: iStar Financial

  	
   

  	
  Asset
  Mgr

  	
   

  	
  Name &
  Tel No.

  	
   

  	
  Borrower’s
  Legal

  	
   

  	
  Name

  
	
   

  	
   

  	
  Servicer

  	
   

  	
  Name &
  Tel No.

  	
   

  	
  Entity:

  	
   

  	
  Addrs

  
	
   

  	
   

  	
  Prj
  Dvlpmnt

  	
   

  	
  Name &
  Tel No.

  	
   

  	
   

  	
   

  	
  Addrs

  
	
   

  	
   

  	
  Form Setup

  	
   

  	
  Name &
  Tel No.

  	
   

  	
   

  	
   

  	
  City/St/Zip

  
	
  Borrower: Contact

  	
   

  	
  Signatory

  	
   

  	
  Name

  	
   

  	
  Borrower’s

  	
   

  	
  Name & Tel No.

  
	
   

  	
   

  	
   

  	
   

  	
  Tel
  No.

  	
   

  	
  Disbursement

  	
   

  	
  Addrs

  
	
   

  	
   

  	
  Authorized

  	
   

  	
  Name

  	
   

  	
  Contact:

  	
   

  	
  Addrs

  
	
   

  	
   

  	
  Representative

  	
   

  	
  Tel
  No.

  	
   

  	
   

  	
   

  	
  City/St/Zip

  
	
  Loan
  Agreement

  	
   

  	
  Loan
  No.:

  	
   

  	
  1234

  	
   

  	
  Project
  short name:

  	
   

  	
  Project
  Short Name

  
	
  For
  reference only -

  	
   

  	
  Dated:

  	
   

  	
  May 2,
  2006

  	
   

  	
   

  	
   

  	
   

  
	
  Construction
  Agreement: For reference

  only, the Agreement
  is dated:

  	
   

  	
  May 2,
  2006

  	
   

  	
  Project
  name & location:

  	
   

  	
  Name

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Addrs

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Addrs

  
	
  Borrower’s
  requested disbursement is Number: 1

  	
   

  	
   

  	
   

  	
  City/St/Zip

  
	
  Contractor’s
  payment
  application                        #

  	
   

  	
  Desired
  Disbursement Date:

  
										



 


Borrower hereby requests a
disbursement of Loan proceeds in the following amounts and for the following
purposes:


 


	
  Requested disbursement for Construction Costs

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Requested disbursement for other Hard Costs

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Requested disbursement for Soft Costs

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total of disbursements:

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less Equity and Other Funds

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Funding Requested:

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less Interest Reserve (Budget Line # 13)

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less Loan fees and expenses

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL AMOUNT TO BE FORWARDED

  	
   

  	
  $

  	
  —

  	
   

  



 


	
  Attached hereto are the following (check
  applicable):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  o

  	
  BSS Disbursement Worksheet, setting forth on a line
  by line basis, the amount of this requested disbursement, reconciled against,
  and consistent with the BSS Disbursement Summary & Budget, also
  attached.

  	
   

  	
  o

  	
  If applicable, Application for Payment executed by
  Contractor, certified by Design Professional of Record, and reviewed and
  approved by Borrower’s Representative, including all attachments noted as iStar
  Required Documents.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
  All Executed and Pending Contracts, since last sworn
  statement.

  	
   

  	
  o

  	
  Copies of any invoices evidencing or creating all
  Soft Costs

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
   

  	
   

  	
  o

  	
  Copy of active BSS Error Report is REQUIRED to be
  attached for this disbursement

  



 


Certification by Borrower


 


As of the date of this
Borrower’s Sworn Statement, Borrower hereby represents, warrants, and certifies
to Lender


 


(i) that all conditions
precedent to the advance requested hereby set forth in the Loan Documents, to
the extent not waived in writing by Lender, have been satisfied as required by
such Loan Documents.


 


(ii) Borrower is
requesting the funds described above and in the attachments hereto, which funds
(a) Borrower is entitled to receive under the Loan Documents and (b) shall
be used and applied for the uses and purposes set forth above and in the
attachments hereto, and


 


(iii) that each party
which is to receive proceeds from this request is entitled to the sums being
requested.  All capitalized terms used
but not defined herein shall have the meaning ascribed thereto in the
[Development] Loan and Security Agreement between Borrower and Lender
referenced above.


 


	
  State

  	
  Borrower:

  	
   

  	
   

  
	
  County of

  	
   

  	
   

  	
   

  
	
  Subscribed and Sworn before me this
           day 

  	
   

  	
   

  	
   

  
	
  of
                            ,
  20    

  	
  a

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Please
  enter the Desired Disbursement Date above

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  Notary Public (Seal)

  	
  Title:

  	
   

  	
   

  
	
  My Commission expires:

  	
  Date Printed:

  	
   

  	
  1/11/07

  	
   

  
						



 


1

















 


	
  Borrower’s Disbursement 

  	
   

  	
   

  	
   

  	
  BSS
  Disbursement Worksheet

  
	
   

  	
  Reference Number:

  	
   

  	
  1

  	
   

  	
   

  
	
  Contractor’s Pay Application #:

  	
   

  	
  0

  	
   

  	
  Project
  Short Name

  
	
  Period from:

  	
   

  	
  1/1/00

  	
   

  	
   

  
	
  Period to:

  	
   

  	
  1/1/01

  	
   

  	
   

  
						



 


	
   

  	
  To enter a new application
  number, revision, or

  	
   

  
	
   

  	
  date data for listing
  above, run “Save

  	
   

  
	
   

  	
  Disbursement Info” macro
  via toolbar Icon.

  	
   

  



 


ENTER CONTRACTOR’S
APPLICATION NUMBER AND DISBURSEMENT DATES ABOVE, THEN

BELOW, ONLY IN FORM COLUMNS [A], [B], and [C], ENTER DETAILS OF REQUESTS


 


Cells that are gray can be
selected and filled-in, or after selecting:


 


·                 For each new Request: Use “Insert Line”
icon or <Control> and “n” to insert a new role below selected cell


 


·                 For each new Contract: Use “Insert
Sub-category” icon or <Control> + <Shift> and “N” to insert a new
sub-category under that Budget line item.


 


LAND


 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &
  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  1  Acquisition Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.01
  Acquisition

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


HARD COSTS


 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  2
  General Construction Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.01
  General Construction

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  3
  Construction Manager Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.01
  Construction Manager

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


SOFT COSTS


 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  4  Reports (appraisal, environ., acct.) Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.01
  Reports (appraisal, environ., acct.)

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


2

















 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  5
  Municipal Fees Budget

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.01
  Municipal Fees

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


3

















 


	
  Borrower’s Disbursement 

  	
   

  	
   

  	
   

  	
  BSS
  Disbursement Worksheet

  
	
   

  	
  Reference Number:

  	
   

  	
  1

  	
   

  	
   

  
	
  Contractor’s Pay Application #:

  	
   

  	
  0

  	
   

  	
   

  
						



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  6
  Insurance Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.01
  Insurance

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  7
  Architect/Engineering/Space  Planning
  Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.01
  Architect/Engineering/Space 

     Planning

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  8 Taxes
  During Construction Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.01
  Taxes During Construction

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  9
  Legal/Other Consultants Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.01
  Legal/Other Consultants

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  10 Dev.
  Fee/Const. Oversight/ 

  Gen. Conditions Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.01
  Dev. Fee/Const. Oversight/

      Gen. Conditions

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


4

















 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &
  

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  11
  Miscellaneous Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.01
  Miscellaneous

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &
  

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  12
  Brokerage Fees Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.01
  Brokerage Fees

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


5

















 


	
  Borrower’s Disbursement 

  	
   

  	
   

  	
   

  	
  BSS
  Disbursement Worksheet

  
	
   

  	
  Reference Number:

  	
   

  	
  1

  	
   

  	
   

  
	
  Contractor’s Pay Application #:

  	
   

  	
  0

  	
   

  	
   

  
						



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &
  

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  13
  Interest Reserve Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.01
  Interest Reserve

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &
  

  Prior

  Disbursements

  	
   

  	
  This
  Request

  	
   

  	
  #

  	
   

  	
  Balance
  to

  Complete

  	
   

  	
  Percent

  Complete

  	
   

  
	
  97
  Lender’s Monthly Expenses Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  97.01
  Lender’s Monthly Expenses

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


6

















 


	
  Borrower’s Disbursement 

  	
   

  	
   

  	
   

  	
  BSS
  Disbursement Worksheet

  
	
   

  	
  Reference Number:

  	
   

  	
  1

  	
   

  	
   

  
	
  Contractor’s Pay Application #:

  	
   

  	
  0

  	
   

  	
   

  
						



 


	
  CONTINGENCY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #

  	
   

  	
  Balance 

  Remaining

  	
   

  	
  Percent

  Expended

  	
   

  
	
  98 Hard
  Costs Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  98.1
  Hard Costs Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #

  	
   

  	
  Balance 

  Remaining

  	
   

  	
  Percent

  Expended

  	
   

  
	
  99 Soft
  Costs Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  99.1
  Soft Costs Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &
  Prior

  Disbursements

  	
   

  	
  This Deposit

  	
   

  	
  #

  	
   

  	
  Balance

  Available

  	
   

  	
  Percent

  Available

  	
   

  
	
  100
  Sales Deposits Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  100
  Sales Deposits

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
																									



 


	
  [A]

  	
   

  	
  [B]

  	
   

  	
  [C]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All
  Change Orders

  & Reallocations

  	
   

  	
  Current
  CO &

  Reallocations

  	
   

  	
  Current &
  

  Prior

  Disbursements

  	
   

  	
  This Deposit

  	
   

  	
  #

  	
   

  	
  Balance

  Available

  	
   

  	
  Percent

  Available

  	
   

  
	
  101
  Equity Contingency Budget

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  101
  Equity Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction
  description 1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  
	
  No Transfers Needed

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roll Up
  Total

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0

  	
  %

  



 






PREPARED
BY:                                                                                                      


CONTACT PHONE NUMBER AND EMAIL ADDRESS:  (                )                                             @                            


 


7
















 


	
  Loan
  Number # 1234

  	
   

  
	
  Borrower’s
  Disbursement #:

  	
  1

  	
   

  
	
  Contractor’s
  Pay Application #:

  	
  0

  	
   

  	
  BSS Disbursement Summary & Current Budget

  
	
  Period
  from:

  	
  1/1/00

  	
   

  	
  Project Short Name

  
	
  Period
  to:

  	
  1/1/01

  	
   

  	
  SAMPLE FORM ONLY, iStar will customize to specific 

  
	
  Contractor’s
  Contract Date (ref. only):

  	
  5/2/06

  	
   

  	
  Project’s budget

  
	
  Net
  Saleable or Rentable Square Footage:

  	
  0

  	
   

  



 


	
   

  	
   

  	
  Cost per SF

  	
   

  	
  Commitment

  Budget

  	
   

  	
  Prior

  Change

  Orders &

  Reallocations

  	
   

  	
  Total

  Change

  Orders &

  Reallocations

  	
   

  	
  Current

  Adjusted

  Budget

  	
   

  	
  Prior

  Disbursements

  Requested

  	
   

  	
  Current

  Disbursements

  Requested

  	
   

  	
  Total

  Disbursements

  Thru This Date

  	
   

  	
  Balance to

  Complete

  	
   

  	
  % Complete

  To Date

  	
   

  
	
  Hard
  Costs

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LAND

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
  Acquisition

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
   

  	
  CONSTRUCTION

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  2

  	
  General
  Construction

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  3

  	
  Construction
  Manager

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  TOTAL
  CONSTRUCTION

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  TOTAL
  HARD COSTS

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  Soft
  Costs

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  Reports
  (appraisal, environ, acct.)

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  5

  	
  Municipal Fees

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  6

  	
  Insurance

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  7

  	
  Architect/Engineering/Space
  Planning

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  8

  	
  Taxes During
  Construction

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  9

  	
  Legal/Other
  Consultants

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  10

  	
  Dev. Fee/Const.
  Oversight/Gen. Conditions

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  11

  	
  Miscellaneous

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  12

  	
  Brokerage Fees

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  13

  	
  Interest Reserve

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  97

  	
  Lender’s Monthly
  Expenses

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  TOTAL
  SOFT COSTS

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  98

  	
  Hard Costs
  Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  99

  	
  Soft Costs Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  TOTAL
  PROJECT BUDGET

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  100

  	
  Sales Deposits

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  101

  	
  Equity
  Contingency

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  



 


8

















 


	
  For
  Servicing Use Only

  	
   

  
	
  Loan
  Number  # 1234

  	
   

  
	
  Borrower’s Disbursement #:1

  	
   

  



 


	
  Project’s Sources and Uses

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sources

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial Advance

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  iStar Advance

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  <>Advance

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Total Advance

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial Equity

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Equity from Sales Deposits Prior Periods*

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Addtl Equity from Deposits this Period

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Addl Equity Prior Periods

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Addl Equity this Period

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Total Equity

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Loan Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  iStar Advance

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  <>Loan

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Debt

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Sources

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Uses

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Adjusted Project Cost

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Project is in Balance

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






	
  *Deposit Rules

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
  a) Minimum Percentage for Deposit
  Reserve

  	
   

  	
  10.0

  	
  %

  	
   

  	
   

  
	
  b) Maximum Percentage of Deposits
  available

  	
   

  	
  20.0

  	
  %

  	
   

  	
   

  
	
  c) Minimum Initial Equity Amount

  	
   

  	
  $

  	
  2,500,000

  	
   

  	
   

  	
   

  
								



 


	
  Project Short Name

  
	
  Details
  for This Disbursement

  



 


	
   

  	
   

  	
  Available Funds

  	
   

  	
  Basis of Allocation

  	
   

  	
  Prior

  Investment

  	
   

  	
  Current

  Request

  	
   

  	
  Expended

  to Date

  	
   

  	
  Bal to

  Compl

  	
   

  	
  % Compl

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Advances

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  iStar Advance

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  <>Advance

  	
   

  	
  $

  	
  —

  	
   

  	
  Allocation is at 50

  	
  %

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Adjusted Equity

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  Sales Deposits:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current Addition

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Equity Contingency:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current Addition

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loans

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  iStar Advance

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
  <>Loan

  	
   

  	
  $

  	
  —

  	
   

  	
  Allocation is at 100

  	
  %

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Project

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  0.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Add
  amount of Sales Deposits transferred

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Add
  amount of Equity Contingency transferred

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Less
  Expenses

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Less
  Interest funded from Int. Res. (in line nbr.)  13

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Amount:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Total N/A

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  Servicing
  Use Only:

  
	
   

  	
   

  	
   

  
	
   

  	
  Inspecting
  Consultant Report

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Draw
  Amount Approved

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Project
  Budget

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Balance
  to Finish

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title
  Insurance:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Hard
  Costs Contingency is in balance

  
	
   

  	
  Soft
  Costs Contingency is in balance

  



 


9

















 


	
  Owner Insurance Log

  



 


	
  Owner/Borrower
  (address):

  	
  Project

  



 


	
  BSS LINE

  NO.

  	
   

  	
  Design Professional/Consultant/Vendor

  	
   

  	
  Brief Description
  of Services

  	
   

  	
  Type of Bond,
  Insurance

  or Certificate

  	
   

  	
  Document

  Issued (Y/N)

  	
   

  	
  Date of

  Insurance

  Expiration

  	
   

  	
  Comments (Note
  other additional

  insureds)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


10

















 


	
  Non-Compliance Log

  



 


	
  Owner/Borrower
  

  	
  Project

  



 


	
  Failing Test Result/Nonconforming Item

  	
   

  	
  Resolution

  	
   

  
	
  Tracking

  No.

  	
   

  	
  Date

  	
   

  	
  Report No.

  	
   

  	
  Comments

  	
   

  	
  Date

  	
   

  	
  Report No.

  	
   

  	
  Comments

  	
   

  	
  Resolved

  	
   

  
	
  1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


11

















 


	
  Modified AIA Form G702 – Contractor’s Application and
  Certification for Payment

  
	
   

  
	
  Owner/Borrower
  (address):

  	
  Project
  (address):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Contractor
  (address):

  	
  Architect
  (address):

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Contractor’s

  	
   

  	
  Period

  	
   

  
	
  Contract for:

  	
   

  	
  Contract Date

  	
   

  	
  Job No.

  	
   

  	
  Application No.

  	
   

  	
  From

  	
   

  	
  To

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


CHANGE ORDER SUMMARY


 


	
   

  	
   

  	
  $ 0

  	
   

  
	
   

  	
   

  	
  ADDITIONS

  	
   

  	
  DEDUCTIONS

  	
   

  
	
  Total changes approved in previous months

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Changes approved this Month:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTALS   

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
  NET CHANGE BY CHANGE ORDERs

  	
   

  	
  $0

  	
   

  
								



 


CONTRACTOR’S APPLICATION FOR PAYMENT


 


	
  Application is made for payment, as shown
  below, in connection with the Contract, identified above.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.CONTRACT SUM

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.NET CHANGE BY CHANGE ORDERS

  	
   

  	
  OK

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.CONTRACT SUM TO DATE (Line 1+2)

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.TOTAL COMPLETED & STORED TO DATE

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.RETAINAGE

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.TOTAL EARNED LESS RETAINAGE (Line 4 Less
  Line 5 Total)

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.LESS PREVIOUS CERTIFICATES FOR PAYMENT
  (Line 6 on prior G702)

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.CURRENT PAYMENT DUE

  	
   

  	
  OK

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.BALANCE TO FINISH, INCLUDING RETAINAGE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (Line 3 less Line 6)

  	
   

  	
  $

  	
  0

  	
   

  	
  OK

  	
   

  
								



 


	
  Attached
  hereto are the following (check applicable):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  o    Contractor’s, Architect of Record’s, and
  Borrower’s Representative’s notarized signatures on Mod AIA Form G702
  Certificate for Payment (on following page)



  o    iStar’s Modified AIA Form G703
  Continuation Sheet — Contractor’s Application & Certification for
  Payment



  o    Subcontractor, suppliers &
  materialmen pay applications and/or invoices substantiating individual lines
  of the Schedule of Values



  o    Lien Waiver Log and Lien Waivers for
  Contractor, each sub or material supplier



  o    Contractor’s Contingency Transfer Log (iStar
  Interactive Form)



  o    Contractor’s Stored Materials Log (iStar
  Interactive Form)



  o    Bailee’s Letter, Bill of Sale, Insurance
  Certificate, etc. for each material stored off-site being requisitioned this
  pay application



  o    Insurance and P&P Bond Log

  	
   

  	
   

  o    Contractor’s General Conditions Worksheet



  o    Change Order Log & CO’s (executed
  cover sheet only for iStar, full CO with all backup for Inspecting
  Consultant)



  o    Pending CO Log, Construction Change
  Directive (CCD) Log and/or Cost Issue Log



  o    Request For Information (RFI) Log including
  Drawing & Specification Change Log



  o    Shop Drawing & Submittal Log



  o    Updated construction Schedule (changes made
  since last pay application)



  o    Copies of all new Permits &/or
  Development Authority Approvals, Municipal &/or Threshold
  Inspections, etc. either obtained by Contractor(s) or Borrower



  o    Project Team Directory including all subs,
  consultants, etc. (changes made since last pay app)

  
	
   

  
	
  Balance of page Intentionally left Blank

  



 


12

















 


	
  Contractor’s
  Certificate for PAYMENT

  
	
  This
  Certificate is delivered to Owner/Borrower, pursuant to the terms of a
  Construction Loan Agreement (the “Loan Agreement”) between Owner/Borrower and
  iStar Financial, Inc. (“Lender”) and pursuant to the agreement for
  construction of the Project between Owner and Contractor (the “Construction
  Contract”).  As of the date of this
  Application, Contractor hereby represents and warrants to Borrower as
  follows:

  
	
  (1)   the
  Contractor has carried out and supervised the construction of the Project to
  date;

  
	
  (2)   to the
  best of Contractor’s knowledge, information and belief, the Work (as defined
  in the Construction Contract) covered by this Application has been completed
  substantially in accordance with the Contract Documents (as defined in the
  Construction Contract) and all applicable building codes;

  
	
  (3)   all
  amounts have been paid to the Contractor for Work of which previous
  Applications were issued and payments have been received from the
  Owner/Borrower,

  
	
  (4)   current
  payments shown herein are now due and payable;

  
	
  (5)   no
  default has occurred under the terms of the Construction Contract as of the
  date hereof;

  
	
  (6)   the
  lien waiver log attached is an accurate and complete schedule of all lien
  waivers heretofore delivered;

  
	
  (7)   construction
  of the Project is being diligently prosecuted substantially in accordance
  with the Construction Schedule attached hereto;

  
	
  (8)   the
  change order log attached is an accurate and complete schedule of all change
  orders pending or agreed to by the parties since the date of the last
  Application, and the Contractor’s knowledge, no other change order or
  amendment, modification or supplement is currently required to the Contract
  Documents, or the Construction Schedule, to substantially complete the
  Project on, or before, the substantial completion date set forth in the
  Construction Contract;

  
	
  (9)   the
  drawing changes log attached sets forth all changes and modifications to the
  Contract Documents, including field changes and drawing revisions, since the
  date of the last Application; and 

  
	
  (10) minutes of all
  meetings among Contractor, Owner/Borrower and Architect since the date of the
  last Application are those attached.

  



 


	
   

  	
  Contractor: 

  	
   

  
	
  State

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  County
  of

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subscribed
  and Sworn before me this
             day of
                      ,
  200    

  	
  Name: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  
	
  Notary
  Public (Seal)

  	
  My
  Commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dated: 

  	
   

  	
   

  



 


	
  Architect
  of Record’s Certificate for Payment

  
	
   

  
	
  In
  accordance with the Contract Documents, based on limited on-site observations
  and the documents comprising the application for payment, the Architect
  certifies to the Owner/Borrower that to the best of the Architect’s
  knowledge, information and belief the Work has progressed as indicated, the
  quality of the Work is substantially in accordance with the Contract
  Documents, and the Contractor is entitled to payment of the AMOUNT CERTIFIED.

  
	
   

  
	
  AMOUNT CERTIFIED$

  
	
   

  
	
  To
  the best of the Architect’s knowledge the AMOUNT CERTIFIED is payable only to
  the Contractor named herein.  Issuance,
  payment and acceptance of payment are without prejudice to any rights of the
  Borrower/Owner or Contractor under the Contract Documents.  Architect hereby represents to
  Borrower/Owner that:

  
	
   

  
	
  (1)   construction
  of the Project appears to be being diligently prosecuted in accordance with
  the Construction Schedule attached hereto;

  
	
   

  
	
  (2)   the
  Change Order Log attached is an accurate and complete schedule of all change
  orders contemplated, initiated and/or approved by the undersigned and/or
  Owner/Borrower;

  
	
   

  
	
  (3)   the
  Drawing Changes Log attached sets forth all changes and modifications to the
  Contract Documents executed by the undersigned, since the date of the last
  Application; and

  
	
   

  
	
  (4)   the
  Contract Documents, as revised and so indicated in the Drawings Changes Log
  are complete in all material respects to construct the Project.

  



 


	
   

  	
  Architect: 

  	
   

  
	
  State

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  County
  of

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subscribed
  and Sworn before me this
             day of
                      ,
  200    

  	
  Name: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  
	
  Notary
  Public (Seal)

  	
  My
  Commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dated: 

  	
   

  	
   

  



 


	
  Owner’s/Borrower’s
  Authorized Representative Certificate for Payment

  
	
   

  
	
  The
  Owner’s/Borrower’s Authorized Representative has thoroughly reviewed and
  approved the documents comprising the application for payment, and to the
  best of the Representative’s knowledge, information and belief, the
  Contractor is entitled to payment of the AMOUNT CERTIFIED above.

  



 


	
  Authorized Representative: 

  	
   

  
	
  State

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  County
  of

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subscribed
  and Sworn before me this
             day of
                      ,
  200    

  	
  Name: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  
	
  Notary
  Public (Seal)

  	
  My
  Commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dated: 

  	
   

  	
   

  



 


13

















 


	
  Contractor’s Application & Certification for Payment –
  Modified AIA Form G703 Continuation Sheet

  
	
   

  
	
  Owner/Borrower
  (address):

  	
  Owner
  info entered on Contr G702 Form is automatically copied to here

  	
  Project
  (address):

  	
  Proj.
  info entered on Contr G702 Form is automatically copied to here

  
	
   

  	
   

  	
   

  	
   

  
	
  Contractor
  (address):

  	
  Contractor
  info entered on Contr G702 Form is automatically copied to here

  	
  Architect
  (address):

  	
  Architect
  info entered on Contr G702 Form is automatically copied to here

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Contract For:

  	
  Contract Date

  	
  Job
  Number

  	
  Contractor’s Application No..

  	
  User Notes and Tips

  	
  Period:

  
	
   

  	
  Copied from G702

  	
  Copied from G702

  	
  Copied from G702

  	
  Copied from G702

  	
   

  	
   

  	
   

  
										



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  D

  	
   

  	
  E

  	
   

  	
  F

  	
   

  	
  G

  	
   

  	
  H

  	
   

  	
  I

  	
   

  	
  J

  	
   

  	
  K

  	
   

  	
  L

  	
   

  	
  M

  	
   

  
	
  Schedule

  Line No.

  	
   

  	
  Line Item

  Description

  (Trade)

  	
   

  	
  Name of

  Contractor

  (or enter

  Unsigned)

  	
   

  	
  Original

  Schedule

  of Values

  	
   

  	
  Schd of

  Value

  Budget

  Revisions

  (Buy-out)

  	
   

  	
  Contractor

  Contingency

  Usage

  	
   

  	
  Actual

  Contract

  Amount

  	
   

  	
  Previously

  Executed

  Owner

  Change

  Orders

  	
   

  	
  Owner

  Change

  Orders in

  Current

  Period

  	
   

  	
  Adjusted

  Contract

  Amount

  	
   

  	
  Prior

  Paid

  Work

  Completed

  &

  Materials

  Installed

  	
   

  	
  Prior Paid

  Stored

  Materials (Not now

  installed)

  	
   

  	
  Work

  Complete this

  Request (this

  Payment)

  	
   

  
	
  

  	
   

  	
  

  	
   

  	
  

  	
   

  	
  

  	
   

  	
  (See Log)

  	
   

  	
  (See Log)

  	
   

  	
  D-E-F

  	
   

  	
   

  	
   

  	
  

  	
   

  	
  G+H+I

  	
   

  	
   

  	
   

  	
  (See Log)

  	
   

  	
  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  N

  	
   

  	
  O

  	
   

  	
  P

  	
   

  	
  Q

  	
   

  	
  R

  	
   

  	
  S

  	
   

  	
  T

  	
   

  	
  U

  	
   

  	
  V

  	
   

  	
  W

  	
   

  	
  X

  	
   

  	
  Y

  	
   

  
	
  Added Stored

  Materials

  This

  Request

  	
   

  	
  Total

  Completed

  and Stored

  to Date

  	
   

  	
  Balance to

  Become

  Due w/o

  Retainage

  	
   

  	
  Percent

  Complete

  	
   

  	
  Retainage

  %

  	
   

  	
  Previously

  held

  retainage

  	
   

  	
  Retainage

  Held This

  Period

  	
   

  	
  Retainage

  Previously

  Released

  	
   

  	
  Retainage

  Released

  This Period

  	
   

  	
  Total Net

  Retain-age

  	
   

  	
  Net  Request

  This Period

  	
   

  	
  Balance to

  Become Due

  Including

  Retainage

  	
   

  
	
  (See Log)

  	
   

  	
  K-L-M-N

  	
   

  	
  J-O

  	
   

  	
  O/J

  	
   

  	
  

  	
   

  	
   

  	
   

  	
  (M-N)-R

  	
   

  	
   

  	
   

  	
  

  	
   

  	
  S-T-(U)-(V)

  	
   

  	
  M-N-V-(T)

  	
   

  	
  P-W

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


14

















 


	
  Contractor’s Contingency Transfer Log

  For use with the G703 Form

  



 


	
  Owner/Borrower
  (address):

  Owner info entered
  on Contr G702 Form is automatically copied to here

  	
   

  	
  Project
  (address):

  Proj. info entered
  on Contr G702 Form is automatically copied to here

  
	
   

  	
   

  	
   

  
	
  Contractor
  (address):

  Contractor info
  entered on Contr G702 Form is automatically copied to here

  	
   

  	
  Architect
  (address):
 Architect info entered on Contr G702
  Form is automatically copied to here

  
	
   

  	
   

  	
   

  



 


	
  Transaction Description

  	
   

  	
  G703 LINE NO.

  	
   

  	
  Buy-Out?

  (Y/N)

  	
   

  	
  Transferred Amt

  [Positive amts go to G703]

  	
   

  	
  Running Total

  	
   

  	
  Comments

  	
   

  
	
  Original Contingency
  Amount

  	
   

  	
  0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  
	
  Owner’s Change
  Orders to Contr’s Contingency

  	
   

  	
  0

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  Sum of ‘H’ & ‘I’ on Contr’s

  Contingency, line #0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Amounts Transferred to
  G703  

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  



 


15

















 


	
  Contractor’s Stored Material Log

  For use with G703 Form

  



 


	
  Owner/Borrower
  (address):

  Owner info entered
  on Contr G702 Form is automatically copied to here

  	
   

  	
  Project
  (address):  
 Proj. info entered on Contr G702
  Form is automatically copied to here

  
	
   

  	
   

  	
   

  
	
  Contractor
  (address):

  Contractor info
  entered on Contr G702 Form is automatically copied to here

  	
   

  	
  Architect
  (address):

  Architect info
  entered on Contr G702 Form is automatically copied to here

  
	
   

  	
   

  	
   

  



 


	
  G-703

  LINE NO.

  	
   

  	
  SUBCONTRACTOR

  and/or SUPPLIER

  and/or Warehouseman

  	
   

  	
  DESCRIPTION OF

  MATERIAL STORED

  (Attach Invoices, Listings,

  and/or Document(s)

  	
   

  	
  STORAGE

  LOCATION

  	
   

  	
  STORED

  MATERIALS

  PRIOR PAID

  	
   

  	
  MTLS INSTALLED

  THIS REQUEST

  	
   

  	
  ADDED MTLS

  STORED THIS

  REQUEST

  	
   

  	
  CURRENT VALUE OF

  STORED MTLS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  	
   

  	
   

  	
  $

  	
  —

  	
   

  
	
  The cap for the Total
  Value of Stored Materials is set at $500,000 

  	
   

  	
  Totals

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  	
  $

  	
  —

  	
   

  
																				



 


16

















 


	
  Contractor’s Bond & Insurance Log

  



 


	
  Owner/Borrower
  (address):

  Owner info entered
  on Contr G702 Form is automatically copied to here

  	
   

  	
  Project

  Proj. info entered
  on Contr G702 Form is automatically copied to here

  
	
   

  	
   

  	
   

  
	
  Contractor
  (address):

  Contractor info
  entered on Contr G702 Form is automatically copied to here

  	
   

  	
  Architect
  (address):

  Architect info
  entered on Contr G702 Form is automatically copied to here

  
	
   

  	
   

  	
   

  



 


	
  G703

  LINE NO.

  	
   

  	
  Contractor Name

  	
   

  	
  Contract Amount

  	
   

  	
  Trade Description

  	
   

  	
  Bond

  Required

  (Y/N)

  	
   

  	
  Date of

  Bond

  Issuance

  	
   

  	
  Insurance

  Certificate

  Issued (Y/N)

  	
   

  	
  Date of

  Insurance

  Expiration

  	
   

  	
  Comments

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


17

















 


	
  Permit Log

  



 


	
  Owner/Borrower
  (address):  
 Owner info entered on Contr G702
  Form is automatically copied to here

  	
   

  	
  Project
  (address):  
 Project info entered on Contr G702
  Form is automatically copied to here

  
	
   

  	
   

  	
   

  
	
  Contractor
  (address):  
 Contractor info entered on Contr G702
  Form is automatically copied to here

  	
   

  	
  Architect
  (address):  
 Architect info entered on Contr G702
  Form is automatically copied to here

  
	
   

  	
   

  	
   

  



 


	
  PERMIT/APPROVAL

  	
   

  	
  AGENCY

  	
   

  	
  REGULATED ACTIVITY

  	
   

  	
  STATUS

  	
   

  	
  PERMIT/APPROVAL ISSUANCE DATE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


18





















 


Schedule 5.6B


 


Borrower shall at all times
provide, maintain and keep in force or cause to be provided, maintained and
kept in force, at no expense to Agent, the following policies of insurance with
respect to the Mortgaged Property and Borrower, as applicable:


 


(1)          During
Construction –


a.  Owner’s Requirements:


 


(i)            From the
closing of the loan until replaced by permanent property insurance, Builder’
Risk coverage shall be provided under a Contractors “All Risk” insurance
policy, in an amount not less than $250,000,000 any one loss and in the
aggregate. The policy shall include coverage for: (1) Named windstorm
including storm surge with sub-limits of $120,000,000 each and every loss,
(2) flood and earthquake with sub-limits each not less than $50,000,000
each and every loss, and (3) Loss suffered with respect to Borrower’s
materials, equipment, machinery, and supplies whether on-site, in transit, or
stored off site.


 


(ii)           Foreign
commercial general liability and umbrella liability coverage, including but
not limited to, coverage for personal and advertising injury, bodily injury,
property damage, with combined limits of not less than $50,000,000 per
occurrence and in the annual aggregate. 
The policies described in this paragraph shall cover, without
limitation: independent contractors, contractual liability and
products-completed operations liability coverage. The completed operations
coverage should be maintained for seven years. 
Borrower shall add Agent, its directors, officers, employees and agents
as additional insured.


 


(iii)          Commercial
Auto Liability - covering all owned, borrowed, hired and non-owned vehicles
with minimum limits of $1,000,000 per occurrence.


 


(iv)          Foreign
voluntary workers’ compensation and employers’ liability insurance in the
amount of $1,000,000 per accident, $1,000,000 per employee and $1,000,000 per
policy limit covering Borrower and its employees at the site.


 


b. OCIP - Borrower shall provide
the foreign commercial general liability, automobile liability, and umbrella
liability policies stated above through the purchase of a Wrap-up, such as an
Owner Controlled Insurance Program. This program shall provide coverage for all
parties engaged in construction operations at the Project with limits approved
by Agent.


 


c. Contractor and Subcontractor Requirements
- Contractors and subcontractors participating in the OCIP shall provide and
maintain the insurance coverage required in the Borrower’s OCIP manual.


 


(2)          General
Requirements of Insurance Policies.


 


a.  All insurance policies shall
be issued by an insurer or insurers with an A.M. Best rating of A-, VI or
better and/or a Standard and Poor’s rating of “A”, or equivalent rating from
another agency acceptable to the Agent and be authorized in the state where the
Project is located.


 


b.  The borrower’s Contractors
“all-risk” policy shall name Agent as an insured.


 


1

















 


c. The foreign commercial general liability, automobile liability and
umbrella liability policies of the Borrower shall name Lender, its
subsidiaries, successors, assigns, directors, officers, and employees as
Additional Insured-Mortgagee.


 


d. Borrower shall pay the premiums for the insurance policies as the
same become due and payable.  Borrower
shall deliver to the Agent copies of the insurance policies required to be
maintained within sixty (60) days after the Closing Date.  Borrower shall deliver a certificate or other
evidence of insurance acceptable to Agent evidencing the insurance required
hereunder on the closing date, together with receipts for the payment of
premiums. Not later than fifteen (15) days prior to the expiration date of each
of the insurance policies the Borrower shall deliver to the Agent a certificate
of insurance evidencing renewal of coverage as required herein.  Within ten (10) days after such renewal,
Borrower shall deliver to the Agent evidence of payment of premium satisfactory
to the Agent.  Not later than ninety (90)
days after the renewal of each of the insurance policies, Borrower shall
deliver to Agent an original or certified copy (as required pursuant to this
Section) of a renewal policy or policies.


 


e.  Each insurance policy shall
contain a provision whereby the insurer agrees that so long as the Loan is
outstanding, such policy shall not be canceled or fail to be renewed, lapsed or
materially changed without in each case, at least thirty (30) days prior
written notice to the Agent, except ten (10) days for non-payment of
premium.


 


f.  The interests of Agent shall
not be invalidated by any action or inaction of Borrower, and such policies
shall insure Agent regardless of any breach or violation by Borrower, of any
warranties, declarations or conditions in such policies.


 


g. Any insurance maintained pursuant to this Agreement may be evidenced
by blanket insurance policies covering the premises and other properties or
assets of the Borrower or its affiliates; provided that any such policy shall
in all other respects comply with the requirements of this section.  Agent, in its reasonable discretion, shall
determine whether such blanket policies contain sufficient limits of insurance.


 


h. Any insurance carried by Agent shall be for its sole benefit and
shall not inure to the benefit of the Borrower and Insurance required from
Borrower shall be primary to any available, if any, to Agent.


 


i. All required policies shall provide that insurers have waived rights
of subrogation against Agent  The
required insurance shall be primary without right of contribution from any
insurance, which may be carried by Agent.


 


j. The required limits listed above are minimum limits established by
Agent and nothing contained herein shall be construed to mean the required
limits are adequate or appropriate to protect the Borrower from greater loss.


 


2

















 


Schedule 12.1

Development Budget


 


1

















 


Schedule 12.2

Development Draw Schedule


 


1





















 


Schedule
12.3

Development Schedule


 


1





















 


Schedule
13

Entitlements Documents


 


1