exv10w1









Exhibit 10.1









LOAN AGREEMENT

by and among




VICTORIA WARD, LIMITED

and the other Entities included in the definition of “Borrower”,

as Borrower,



and



WELLS FARGO BANK, NATIONAL ASSOCIATION

as Administrative Agent,



and



THE FINANCIAL INSTITUTIONS NOW OR HEREAFTER SIGNATORIES HERETO AND THEIR

ASSIGNEES PURSUANT TO SECTION 15.14, as Lenders,



WELLS FARGO SECURITIES, L.L.C.,

as Sole Lead Arranger and Sole Bookrunner,




Entered into as of September 29, 2011



WFB LOAN NO. 1004573



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 DEFINED TERMS
	 	 	1	 
	1.2 SCHEDULES AND EXHIBITS INCORPORATED
	 	 	15	 
	 
	 	 	 	 
	ARTICLE 2. LOAN
	 	 	15	 
	 
	 	 	 	 
	2.1 LOAN
	 	 	15	 
	(a) Initial Facility Amount; Initial Advance
	 	 	15	 
	(b) Earnout Holdback; Subsequent Advances
	 	 	15	 
	2.2 LOAN FEES
	 	 	16	 
	2.3 LOAN DOCUMENTS
	 	 	16	 
	2.4 EFFECTIVE DATE
	 	 	16	 
	2.5 MATURITY DATE
	 	 	16	 
	2.6 INTEREST ON THE LOAN
	 	 	16	 
	(a) Interest Payments
	 	 	16	 
	(b) Default Interest
	 	 	16	 
	(c) Late Fee
	 	 	16	 
	(d) Computation of Interest
	 	 	17	 
	(e) Effective Rate
	 	 	17	 
	(f) One-Month LIBO Rate Taxes, Regulatory Costs and Reserve Percentages
	 	 	18	 
	(g) One-Month LIBO Price Adjustment
	 	 	18	 
	(h) Purchase, Sale and Matching of Funds
	 	 	19	 
	(i) Usury
	 	 	19	 
	2.7 PAYMENTS
	 	 	20	 
	(a) Manner and Time of Payment
	 	 	20	 
	(b) Payments on Non-Business Days
	 	 	20	 
	(c) Prepayment
	 	 	20	 
	2.8 COLLATERAL POOL; REMARGIN RIGHT
	 	 	22	 
	(a) Collateral Pool
	 	 	22	 
	(b) Remargin Right
	 	 	22	 
	2.9 FULL REPAYMENT AND RECONVEYANCE
	 	 	23	 
	2.10 LENDERS’ ACCOUNTING
	 	 	23	 
	2.11 PROPERTY RELEASES
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 3. DISBURSEMENT
	 	 	25	 
	 
	 	 	 	 
	3.1 CONDITIONS PRECEDENT
	 	 	25	 
	3.2 CONDITIONS PRECEDENT TO ADVANCES OF UNFUNDED INITIAL FACILITY
	 	 	25	 
	3.3 CONDITIONS PRECEDENT TO ADVANCES OF EARNOUT HOLDBACK
	 	 	26	 
	3.4 ACCOUNT, PLEDGE AND ASSIGNMENT, AND DISBURSEMENT AUTHORIZATION
	 	 	27	 
	3.5 LOAN DISBURSEMENTS
	 	 	27	 
	3.6 FUNDS TRANSFER DISBURSEMENTS
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 4. IMPOUNDS
	 	 	28	 
	 
	 	 	 	 
	4.1 TAX IMPOUND
	 	 	28	 
	4.2 INSURANCE IMPOUND.
	 	 	29	 
	4.3 GENERAL
	 	 	29	 
	4.4 GRANT OF SECURITY INTEREST IN IMPOUNDS, ACCOUNTS; APPLICATION OF FUNDS

	 	 	29	 
	 
	 	 	 	 
	ARTICLE 5. CONSTRUCTION
	 	 	30	 
	 
	 	 	 	 
	5.1 CONSTRUCTION OF ADDITIONAL IMPROVEMENTS
	 	 	30	 
	5.2 CONTRACTOR/CONSTRUCTION INFORMATION
	 	 	30	 






i









 






	 	 	 	 	 
	 	 	Page	 
	5.3 PROHIBITED CONTRACTS
	 	 	30	 
	5.4 LIENS AND STOP NOTICES
	 	 	31	 
	5.5 ASSESSMENTS AND COMMUNITY FACILITIES DISTRICTS
	 	 	31	 
	5.6 DELAY
	 	 	31	 
	5.7 INSPECTIONS
	 	 	31	 
	5.8 SURVEYS
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 6. INSURANCE
	 	 	31	 
	 
	 	 	 	 
	6.1 TITLE INSURANCE
	 	 	31	 
	6.2 PROPERTY INSURANCE
	 	 	32	 
	6.3 FLOOD HAZARD INSURANCE
	 	 	32	 
	6.4 LIABILITY INSURANCE
	 	 	32	 
	6.5 OTHER COVERAGE
	 	 	32	 
	6.6 GENERAL
	 	 	32	 
	6.7 COLLATERAL PROTECTION INSURANCE NOTICE
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 7. REPRESENTATIONS AND WARRANTIES
	 	 	33	 
	 
	 	 	 	 
	7.1 AUTHORITY/ENFORCEABILITY
	 	 	33	 
	7.2 BINDING OBLIGATIONS
	 	 	33	 
	7.3 FORMATION AND ORGANIZATIONAL DOCUMENTS
	 	 	33	 
	7.4 NO VIOLATION
	 	 	33	 
	7.5 COMPLIANCE WITH LAWS; USE
	 	 	33	 
	7.6 LITIGATION
	 	 	34	 
	7.7 FINANCIAL CONDITION
	 	 	34	 
	7.8 NO MATERIAL ADVERSE CHANGE
	 	 	34	 
	7.9 ACCURACY
	 	 	34	 
	7.10 TAX LIABILITY
	 	 	34	 
	7.11 TITLE TO ASSETS; NO LIENS
	 	 	34	 
	7.12 MANAGEMENT AGREEMENT
	 	 	34	 
	7.13 UTILITIES
	 	 	34	 
	7.14 COMPLIANCE
	 	 	35	 
	7.15 AMERICANS WITH DISABILITIES ACT COMPLIANCE
	 	 	35	 
	7.16 BUSINESS LOAN
	 	 	35	 
	7.17 OFAC
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPECIAL PURPOSE ENTITY (“SPE”)
STATUS
	 	 	35	 
	 
	 	 	 	 
	8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPECIAL PURPOSE ENTITY
(“SPE”) STATUS
	 	 	35	 
	(a) Limited Purpose
	 	 	35	 
	(b) Limitations on Debt, Actions
	 	 	35	 
	(c) Separateness Covenants
	 	 	36	 
	(d) SPE Covenants in Borrower Organizational Documents
	 	 	36	 
	(e) Additional Special Covenants
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 9. HAZARDOUS MATERIALS
	 	 	37	 
	 
	 	 	 	 
	9.1 SPECIAL REPRESENTATIONS AND WARRANTIES
	 	 	37	 
	(a) Hazardous Materials
	 	 	37	 
	(b) Hazardous Materials Laws
	 	 	37	 
	(c) Hazardous Materials Claims
	 	 	38	 
	9.2 HAZARDOUS MATERIALS COVENANTS
	 	 	38	 
	(a) No Hazardous Activities
	 	 	38	 
	(b) Compliance
	 	 	38	 
	(c) Notices
	 	 	38	 
	(d) Remedial Action
	 	 	38	 
	9.3 INSPECTION BY ADMINISTRATIVE AGENT
	 	 	38	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	9.4 HAZARDOUS MATERIALS INDEMNITY
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 10. COVENANTS OF BORROWER
	 	 	39	 
	 
	 	 	 	 
	10.1 EXPENSES
	 	 	39	 
	10.2 ERISA COMPLIANCE
	 	 	39	 
	10.3 LEASING
	 	 	40	 
	10.4 APPROVAL OF LEASES
	 	 	40	 
	10.5 SUBDIVISION MAPS
	 	 	42	 
	10.6 OPINION OF LEGAL COUNSEL
	 	 	42	 
	10.7 FURTHER ASSURANCES
	 	 	42	 
	10.8 MERGER, CONSOLIDATION, TRANSFER OF ASSETS
	 	 	42	 
	10.9 ASSIGNMENT
	 	 	42	 
	10.10 MANAGEMENT OF PROPERTY
	 	 	43	 
	10.11 APPRAISAL
	 	 	43	 
	10.12 NOTICE OF CHANGE IN MANAGEMENT
	 	 	43	 
	10.13 REQUIREMENTS OF LAW
	 	 	43	 
	10.14 LIMITATIONS ON DISTRIBUTIONS, ETC.
	 	 	43	 
	10.15 DERIVATIVE DOCUMENTS
	 	 	43	 
	10.16 CASH MANAGEMENT AGREEMENT; DEBT YIELD TEST
	 	 	43	 
	10.17 CONSTRUCTION AGREEMENTS; PLANS
	 	 	45	 
	10.18 AUAHI CONDOMINIUM PARKING
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 11. REPORTING COVENANTS
	 	 	46	 
	 
	 	 	 	 
	11.1 FINANCIAL STATEMENTS
	 	 	46	 
	(a) Borrower Annual Financial Statements
	 	 	46	 
	(b) Borrower Quarterly Financial Statements
	 	 	46	 
	(c) Guarantor Financial Statements
	 	 	46	 
	(d) Other Information
	 	 	47	 
	11.2 BOOKS AND RECORDS
	 	 	47	 
	11.3 LEASING REPORTS
	 	 	47	 
	11.4 OPERATING STATEMENTS FOR PROPERTY
	 	 	47	 
	11.5 KNOWLEDGE OF DEFAULT; ETC.
	 	 	47	 
	11.6 LITIGATION, ARBITRATION OR GOVERNMENT INVESTIGATION
	 	 	47	 
	11.7 ENVIRONMENTAL NOTICES
	 	 	47	 
	11.8 CERTIFICATE OF BORROWER
	 	 	48	 
	11.9 OTHER INFORMATION
	 	 	48	 
	11.10 FORM; WARRANTY
	 	 	48	 
	 
	 	 	 	 
	ARTICLE 12. DEFAULTS AND REMEDIES
	 	 	48	 
	 
	 	 	 	 
	12.1 DEFAULT
	 	 	48	 
	(a) Monetary
	 	 	48	 
	(b) Performance of Obligations
	 	 	48	 
	(c) Construction; Use
	 	 	49	 
	(d) Attachment; Condemnation’ Liens
	 	 	49	 
	(e) Representations and Warranties
	 	 	49	 
	(f) Bankruptcy; Insolvency; Dissolution
	 	 	49	 
	(g) Change in Management or Control
	 	 	49	 
	(h) Loss of Priority
	 	 	50	 
	(i) Hazardous Materials
	 	 	50	 
	(j) Prohibited Transfers
	 	 	50	 
	(k) Default Under Unsecured Indemnity Agreement
	 	 	50	 
	(l) Default Under Guaranty
	 	 	50	 
	(m) Default Under Swap Agreement; Voluntary Termination
	 	 	50	 
	12.2 ACCELERATION UPON DEFAULT; REMEDIES
	 	 	51	 
	12.3 DISBURSEMENTS TO THIRD PARTIES
	 	 	51	 
	12.4 ADMINISTRATIVE AGENT’S COMPLETION OF CONSTRUCTION
	 	 	51	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	12.5 ADMINISTRATIVE AGENT’S CESSATION OF CONSTRUCTION
	 	 	51	 
	12.6 REPAYMENT OF FUNDS ADVANCED
	 	 	51	 
	12.7 RIGHTS CUMULATIVE, NO WAIVER
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 13. DUE ON SALE/ENCUMBRANCE
	 	 	52	 
	 
	 	 	 	 
	13.1 PROPERTY TRANSFERS
	 	 	52	 
	(a) Prohibited Property Transfers
	 	 	52	 
	(b) Permitted Transfers
	 	 	52	 
	13.2 EQUITY TRANSFERS
	 	 	52	 
	(a) Prohibited Equity Transfers
	 	 	52	 
	(b) Permitted Equity Transfers
	 	 	52	 
	(c) SPE Status
	 	 	53	 
	13.3 CERTIFICATES OF OWNERSHIP
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 14. THE ADMINISTRATIVE AGENT; INTERCREDITOR PROVISIONS
	 	 	53	 
	 
	 	 	 	 
	14.1 APPOINTMENT AND AUTHORIZATION
	 	 	53	 
	14.2 WELLS FARGO AS LENDER
	 	 	54	 
	14.3 LOAN DISBURSEMENTS
	 	 	54	 
	14.4 DISTRIBUTION AND APPORTIONMENT OF PAYMENTS; DEFAULTING LENDERS
	 	 	55	 
	14.5 PRO RATA TREATMENT
	 	 	56	 
	14.6 SHARING OF PAYMENTS, ETC.
	 	 	57	 
	14.7 COLLATERAL MATTERS; PROTECTIVE ADVANCES
	 	 	57	 
	14.8 POST-FORECLOSURE PLANS
	 	 	58	 
	14.9 APPROVALS OF LENDERS
	 	 	59	 
	14.10 NOTICE OF DEFAULTS
	 	 	59	 
	14.11 ADMINISTRATIVE AGENT’S RELIANCE, ETC.
	 	 	59	 
	14.12 INDEMNIFICATION OF ADMINISTRATIVE AGENT
	 	 	60	 
	14.13 LENDER CREDIT DECISION, ETC.
	 	 	60	 
	14.14 SUCCESSOR ADMINISTRATIVE AGENT
	 	 	61	 
	14.15 NO SET-OFFS
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 15. MISCELLANEOUS PROVISIONS
	 	 	62	 
	 
	 	 	 	 
	15.1 INDEMNITY
	 	 	62	 
	15.2 ADDITIONAL SECURITY INTERESTS
	 	 	62	 
	15.3 FORM OF DOCUMENTS
	 	 	62	 
	15.4 NO THIRD PARTIES BENEFITED
	 	 	62	 
	15.5 NOTICES
	 	 	62	 
	15.6 ATTORNEY-IN-FACT
	 	 	63	 
	15.7 ACTIONS
	 	 	63	 
	15.8 RIGHT OF CONTEST
	 	 	63	 
	15.9 RELATIONSHIP OF PARTIES
	 	 	63	 
	15.10 DELAY OUTSIDE LENDER’S CONTROL
	 	 	63	 
	15.11 ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT
	 	 	63	 
	15.12 IMMEDIATELY AVAILABLE FUNDS
	 	 	64	 
	15.13 AMENDMENTS AND WAIVERS
	 	 	64	 
	(a) Generally
	 	 	64	 
	(b) Unanimous Consent
	 	 	64	 
	(c) Amendment of Administrative Agent’s Duties, Etc.
	 	 	65	 
	15.14 SUCCESSORS AND ASSIGNS
	 	 	65	 
	(a) Generally
	 	 	65	 
	(b) Participations
	 	 	65	 
	(c) Assignments
	 	 	65	 
	(d) Tax Withholding
	 	 	66	 
	(e) Federal Reserve Bank Assignments
	 	 	66	 
	(f) Information to Assignee, Etc.
	 	 	66	 
	15.15 ADDITIONAL COSTS — LIBOR
	 	 	67	 






iv









 






	 	 	 	 	 
	 	 	Page	 
	(a) Capital Adequacy
	 	 	67	 
	(b) Additional Costs
	 	 	67	 
	(c) Lender’s Suspension of LIBOR Loans
	 	 	67	 
	(d) Notification and Determination of Additional Costs
	 	 	67	 
	15.16 SIGNS
	 	 	68	 
	15.17 LENDER’S AGENTS
	 	 	68	 
	15.18 TAX SERVICE
	 	 	68	 
	15.19 WAIVER OF RIGHT TO TRIAL BY JURY
	 	 	68	 
	15.20 SEVERABILITY
	 	 	68	 
	15.21 TIME
	 	 	68	 
	15.22 HEADINGS
	 	 	68	 
	15.23 GOVERNING LAW
	 	 	69	 
	15.24 USA PATRIOT ACT NOTICE; COMPLIANCE
	 	 	69	 
	15.25 ELECTRONIC DOCUMENT DELIVERIES
	 	 	69	 
	15.26 INTEGRATION; INTERPRETATION
	 	 	69	 
	15.27 JOINT AND SEVERAL LIABILITY
	 	 	70	 
	15.28 COUNTERPARTS
	 	 	70	 





EXHIBITS AND SCHEDULES




SCHEDULE 1.1 — PRO RATA SHARES

SCHEDULE 7.6 — LITIGATION DISCLOSURE

SCHEDULE 8.1 — ENVIRONMENTAL REPORTS




EXHIBIT A — DESCRIPTION OF PROPERTY

EXHIBIT A-1 — DESCRIPTION OF WARD CENTRE PROPERTY

EXHIBIT A-2 — DESCRIPTION OF WARD ENTERTAINMENT CENTER PROPERTY

EXHIBIT A-3 — DESCRIPTION OF WARD GATEWAY PROPERTY

EXHIBIT A-4 — DESCRIPTION OF WARD INDUSTRIAL PROPERTY

EXHIBIT A-5 — DESCRIPTION OF WARD PLAZA PROPERTY

EXHIBIT A-6 — DESCRIPTION OF WARD VILLAGE PROPERTY

EXHIBIT A-7 — DESCRIPTION OF WARD VILLAGE SHOPS

EXHIBIT A-8 — DESCRIPTION OF WARD WAREHOUSE PROPERTY

EXHIBIT A-9 — DESCRIPTION OF WARE VILLAGE RETAIL SHOPS

EXHIBIT A-10 — DESCRIPTION OF AUAHI CONDOMINIUM LAND

EXHIBIT A-11 — DESCRIPTION OF AUAHI SHOPS

EXHIBIT B — DOCUMENTS

EXHIBIT C — DISBURSEMENT PLAN

EXHIBIT D — FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

EXHIBIT E — FORM OF PROMISSORY NOTE

EXHIBIT F — SITE PLAN

EXHIBIT G — TRANSFER AUTHORIZER DESIGNATION





v











 





LOAN AGREEMENT



THIS LOAN AGREEMENT (“Agreement”) dated as of September 29, 2011 by and among VICTORIA WARD,
LIMITED, a Delaware corporation (“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited
liability company (“Ward Center”), VICTORIA WARD ENTERTAINMENT CENTER L.L.C., a Delaware limited
liability company (“Ward Entertainment”), WARD PLAZA-WAREHOUSE, LLC, a Delaware limited liability
company (“Ward Plaza”), WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited liability company
(“Ward Gateway”, together with Parent, Ward Center, Ward Entertainment and Ward Plaza, hereinafter
collectively referred to as “Borrower”), each of the financial institutions initially a signatory
hereto together with their assignees under Section 15.14 (“Lenders”) and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association (“Wells Fargo”), as contractual representative of the
Lenders to the extent and in the manner provided in Article 14 (in such capacity, the
“Administrative Agent”). Wells Fargo Securities, L.L.C., is the Sole Lead Arranger and Sole
Bookrunner (the “Arranger”).




R E C I T A L S





	A.	 	Borrower owns certain real property described in Exhibit A hereto and all
improvements now or hereafter existing thereon (collectively, the “Property”).






	B.	 	Borrower desires to borrow from Lenders, and Lenders agree to loan to Borrower, the amounts
described below.




NOW, THEREFORE, Borrower, Administrative Agent and Lenders agree as follows:




ARTICLE 1. DEFINITIONS



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




     “Accounts” — means, collectively, the Lockbox Account, the Operating Account, the Excess Cash
Flow Reserve Account, the Restricted Account and any other accounts of Borrower with Administrative
Agent as may be required by this Agreement, the Cash Management Agreement or any of the other Loan
Documents.



     “ADA” — means the Americans with Disabilities Act, of July 26, 1990, Pub. L. No. 101-336, 104
Stat. 327, 42 U.S.C. § 12101, et seq., as amended from time to time.



     “Additional Improvements” means the Ward Village Retail Shops currently under construction as
of the Effective Date, any Tenant Improvements required to be constructed by a Borrower under any
Approved Leases and any other capital improvements constructed by Borrower on any of the Property
during the term of the Loan.



     “Administrative Agent” — means Wells Fargo Bank, National Association, or any successor
Administrative Agent appointed pursuant to Section 14.14.



     “Advance” — means any advance of Loan proceeds under this Agreement, including without
limitation, any Advance from the Unfunded Initial Facility or the Earnout Holdback.



     “Affiliate” — means, with respect to any Person, (a) in the case of any such Person which is
a partnership or limited liability company, any partner or member in such partnership or limited
liability company, respectively, (b) any other Person which is directly or indirectly Controlled
by, Controls or is under common Control with such Person or one or more of the Persons referred to
in the preceding clause (a), (c) any other Person who is an officer, director, trustee or employee
of, or partner in, such Person or any Person referred to in the preceding clauses (a) and (b), (d)
any other Person who is a member of the immediate family of such Person or of any Person referred
to in the preceding clauses (a) through (c), and (e) any other Person that is a trust solely for
the benefit of one or more Persons referred



1









 




to in clause (d) and of which such Person is sole trustee; provided, however,
in no event shall Administrative Agent or any Lender or any of their Affiliates be an Affiliate of
Borrower.




     “Agreement” — shall have the meaning given to such term in the preamble hereto.



     “Anchor Lease” — means the Leases in effect as of the Effective Date covering a part of the
Property with the following tenants (and the respective Property covered by such Lease):
Consolidated Entertainment (Ward Entertainment Center Property), Sports Authority (Ward Gateway
Property), Dave & Busters (Ward Entertainment Center Property), Nordstrom Rack (Ward Village
Property), Office Depot (Ward Village Property), Ross Stores (Ward Gateway Property), Pier 1 (Ward
Village Shops), Bank of Hawaii (Ward Plaza Property), Marukai Marketplace (Ward Industrial
Property), Famous Footwear (Ward Centre Property) and any Lease executed covering the space
previously occupied by Border’s Books (Ward Centre Property).



     “Applicable Margin” — means two and one-half percent (2.5%).



     “Application for Payment” — shall have the meaning given to such term in Exhibit C
attached hereto.



     “Appraisal” — means a written appraisal prepared by an independent MAI appraiser acceptable
to Administrative Agent and subject to Administrative Agent’s customary independent appraisal
requirements and prepared in compliance with all applicable regulatory requirements, including the
Financial Institutions Recovery, Reform and Enforcement Act of 1989, as amended from time to time,
subject to review and adjustment consistent with Administrative Agent’s standard practices.



     “Appraised Value” means the “value as currently improved” for the Property as indicated by an
Appraisal approved by Administrative Agent and prepared by an appraiser designated by
Administrative Agent, in Administrative Agent’s sole discretion; provided, however,
that solely for the purpose of determining the amount of the disbursement of any portion of the
Earnout Holdback as provided in this Agreement, the Ward Village Retail Shops under construction as
of the Effective Date shall be valued on an “as-stabilized” basis.



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



     “Approved Lease Form” — means the standard lease form or forms for the Property approved by
Administrative Agent from time to time, and which shall include estoppel, subordination, attornment
and mortgagee protection provisions satisfactory to Administrative Agent in Administrative Agent’s
sole discretion.



     “Approved Leases” — shall have the meaning given to such term in Section 10.4(b).
Notwithstanding anything to the contrary contained in this Agreement, for purposes of computing Net
Operating Income or In Place NOI, a Lease shall only be an Approved Lease so long as the tenant
under the Lease in question is currently paying rent or is expected to commence payment of rent
within six (6) months from the date in question, and a Lease shall also cease to be an Approved
Lease if (i) the tenant under such Lease becomes insolvent or becomes subject to a voluntary or
involuntary petition under any bankruptcy proceeding, (ii) a material default by the tenant has
occurred and is existing under such Lease or (iii) such Lease has expired or been terminated.



     “Assignee” — shall have the meaning given to such term in Section 15.14(c).



     “Assignment and Assumption Agreement” — means an Assignment and Assumption Agreement among a
Lender, an Assignee and the Administrative Agent, substantially in the form of Exhibit D.



     “Auahi Condominiums” — has the meaning given to such term in the paragraph immediately below.



2









 





     “Auahi Condominium Land” — means a portion of the Property defined as Ward Village Shops
located along Auahi Street generally where the existing Pier 1 store is located and being depicted
generally on Exhibit A-10 attached hereto, which Borrower intends to redevelop into high
rise residential condominiums (“Auahi Condominiums”), but which does not and shall not otherwise
include any portion of the Ward Village Retail Shops, the WVRS Parking Garage or the Auahi Shops
intended to be developed in Ward Village Shops or fee title to any portions of the WVRS Parking
Garage (provided, however, the Auahi Condominiums, if developed, may have certain parking rights in
the WVRS Parking Garage as more particularly described in Section 10.18 of this Agreement).



     “Auahi Shops” — means that portion of the Property defined as Ward Village Shops generally
located along Auahi Street and being depicted generally on Exhibit A-11 attached hereto
(but not including the Auahi Condominium Land or the WVRS Parking Garage), which Borrower intends
to redevelop into one or two buildings containing approximately 50,000 rentable square feet of
retail space in the aggregate, but which does not include the WVRS Parking Garage, Ward Village
Retail Shops or the Auahi Condominiums Land intended to be developed in Ward Village Shops.



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



     “Borrower” — shall have the meaning given to such term in the preamble hereto, and shall
refer to a Borrower individually or all of the Borrowers collectively, as the context may require.
Each Borrower is a special purpose entity (as required by Section 8.1 hereof) and is majority owned
and 100% Controlled by Guarantor and its Affiliates.



     “Business Day” — means (a) any day of the week other than Saturday, Sunday or other day on
which the offices of Administrative Agent in San Francisco, California are authorized or required
to close and (b) with reference to the One-Month LIBO Rate or LIBOR Market Index Rate, any such day
that is also a day on which dealings in Dollar deposits are carried out in the London interbank
market. Unless specifically referenced in this Agreement as a Business Day, all references to
“days” shall be to calendar days.



     “Cash Management Agreement” — means that certain Cash Management Agreement dated of even date
with this Agreement entered into by and between Borrower and Administrative Agent, for the benefit
of the Lenders.



     “Cash Trap Event Period” — has the meaning given to such term in Section 10.16(b).



     “Charges” shall mean all fees, charges and/or any other things of value, if any, contracted
for, charged, received, taken or reserved by Lenders in connection with the transactions relating
to the Notes and the other Loan Documents, which are treated as interest under applicable law.



     “Collateral” — means the Property and any personal property or other collateral with respect
to which a Lien or security interest was granted to Administrative Agent, for the benefit of
Lenders, pursuant to the Loan Documents.



     “Collateral Pool” — means, as of a particular Determination Date, all of the Property which
is then subject to a Mortgage and is Collateral for the Loan.



     “Commitment” — means, as to each Lender, such Lender’s obligation to make disbursements
pursuant to Article III and Section 14.3, in an amount up to, but not exceeding the amount set
forth for such Lender on Schedule 1.1 attached hereto as such Lender’s “Commitment Amount”
or as set forth in the applicable Assignment and Assumption Agreement, as the same may be reduced
from time to time pursuant to the terms of this Agreement or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 15.14.



     “Completion” — means, with respect to any Additional Improvements, (i) the completion of such
Additional Improvements in accordance with all applicable Requirements of Law, (ii) the issuance of
a



3









 




certificate of occupancy by the appropriate Governmental Authority for any premises which are
a part of the Additional Improvements and (iii) receipt of final lien waivers and releases for all
work performed or constructed in connection with the Additional Improvements in question.




     “Completion Guaranty” — means that certain Completion Guaranty of even date herewith executed
and delivered by Guarantor to Administrative Agent for the benefit of Lenders.



     “Construction Agreement” — means any agreement to construct any Additional Improvements by
and between Borrower and Contractor.



     “Contractor” — means any party engaged by a Borrower to construct any Additional Improvements
or any other improvements to any portion of the Property.



     “Control” — means (including with respect to its correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as applied to any Person, the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, or the power to veto major policy decisions of such Person, whether
through the ownership of voting securities, by agreement, or otherwise.



     “Debt Yield” — means, as of the applicable Determination Date, the In Place NOI from all of
the Property then subject to a Mortgage, divided by the then outstanding principal amount of the
Loan.



     “Default” — shall have the meaning given to such term in Section 12.1.



     “Defaulting Lender” — means any Lender which fails or refuses to perform its obligations
under this Agreement within the time period specified for performance of such obligation or, if no
time frame is specified, if such failure or refusal continues for a period of five (5) Business
Days after notice from Administrative Agent.



     “Default Rate” — is a rate of interest per annum five percent (5%) in excess of the
applicable Effective Rate in effect from time to time.



     “Delinquency Date” — shall have the meaning given to such term in Section 4.1.



     “Determination Date” — means a specific date on which the Debt Yield or Loan-to-Value Ratio
are calculated from time to time for purposes of this Agreement as more particularly provided
herein.



     “Dollars” and “$” — means the lawful money of the United States of America.



     “Due Date” — shall have the meaning given to such term in Section 2.6(a).



     “Earnout Holdback” — means the holdback in the amount of $30,000,000, which amount will not
be funded to Borrower as a part of the Initial Facility Amount, but will be available for
disbursement to Borrower on the terms and conditions set forth in Section 3.3. The Earnout
Holdback is allocated for (i) the payment of the cost of Additional Improvements, including without
limitation, the cost of any Tenant Improvements and Leasing Commissions incurred by Borrower from
time to time under Approved Leases which are executed in accordance with the terms and conditions
of this Agreement, (ii) the cost of the redevelopment of portions of the Property, as more
particularly provided in this Agreement and (iii) reimbursement to Borrower of capital expenditures
incurred by Borrower from and after November 9, 2010 in connection with the development and/or
improvement of the Property, provided that Borrower delivers satisfactory evidence to
Administrative Agent of the amount and payment of such capital expenditures previously incurred by
Borrower.



     “Effective Date” — means the earlier of (a) the date the Mortgage is recorded in the Office
of the County Recorder of the county where the Property is located and (b) the date Administrative
Agent authorizes the Initial Advance to be disbursed to Borrower.



     “Effective Rate” — shall have the meaning given to such term in Section 2.6(e).



4









 





     “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and
(d) any other Person (other than a natural person) approved by (i) the Administrative Agent and
(ii) unless a Default exists, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or subsidiaries.



     “ERISA” — means the Employee Retirement Income Security Act of 1974, as in effect from time
to time.



     “Excess Cash Flow Reserve Account” has the meaning given to such term in the Cash Management
Agreement.



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for
each day during such period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.



     “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 and similar extensions of credit in
the ordinary course of its business.



     “Funding Date” — shall have the meaning given to such term in Exhibit C attached
hereto.



     “Governmental Authority” — means any nation or government, any federal, state, local,
municipal or other political subdivision thereof or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.



     “Guarantor” — means The Howard Hughes Corporation, a Delaware corporation, and any other
Person who, or which, in any manner, is or becomes obligated to Administrative Agent and Lenders
under any guaranty now or hereafter executed in connection with respect to the Loan (collectively
or severally as the context thereof may suggest or require).



     “Guaranty” — means, collectively, the Limited Guaranty and the Completion Guaranty.



     “Hazardous Materials” — shall have the meaning given to such term in Section 9.1(a).



     “Hazardous Materials Claims” — shall have the meaning given to such term in Section 9.1(c).



     “Hazardous Materials Laws” — shall have the meaning given to such term in Section 9.1(b).



     “Impounds” — shall have the meaning given to such term in Section 4.3.



     “Indemnitees” — means Administrative Agent, Lenders, and their respective parents,
subsidiaries and affiliates, any holder of or Participant in the Loan and all directors, officers,
employees, agents, successors and assigns of any of the foregoing.



     “Indemnitor” — means The Howard Hughes Corporation, a Delaware corporation, and any other
Person who, or which, in any manner, is or becomes obligated to Administrative Agent and/or Lenders
under any indemnity now or hereafter executed in connection with respect to the Loan (collectively
or severally as the context thereof may suggest or require), but specifically excluding any Person
that is not an Affiliate of Borrower or Guarantor.



     “Independent Inspecting Architect” — means any architect, engineer, agent, consultant or
other inspector selected and retained by Administrative Agent, at Borrower’s expense, to inspect
the



5









 




construction of any Additional Improvements or any other construction work at any of the
Property on behalf of the Administrative Agent and the Lenders.




     “Initial Advance” — means the first Advance funded by Lenders to Borrower which will occur at
the closing of the Loan, and being in an amount equal to $212,509,345.99. The Initial Advance will
be used solely to refinance the existing indebtedness on the Property and to pay for closing costs
incurred in connection with the closing of the Loan.



     “Initial Facility Amount” — means an amount equal to the lesser of (i) $220,000,000.00, (ii)
sixty-five percent (65%) of the Appraised Value of the Property, as determined by the Appraisal
obtained in connection with the closing of the Loan and (iii) an amount necessary to achieve a Debt
Yield of not less than nine and one-half percent (9.5%), which amount shall be determined by
dividing the In Place NOI from all of the Property in the Collateral Pool by 9.5%.



     “In Place NOI” — means the in place Net Operating Income, adjusted for Approved Leases whose
term is expected to commence or expire within six (6) months. In calculating In Place NOI, unless
otherwise agreed to in writing (which may be by email) by the Requisite Lenders, Operating Revenue
generated from Approved Leases which are classified as License Agreements will be limited to a
maximum of ten percent (10%) of total Operating Revenue from the Property, and any Operating
Revenue from License Agreements in excess of ten percent (10%) of total Operating Revenue from the
Property will be excluded from In Place NOI; provided, further, that in calculating the In Place
NOI solely for the purpose of determining the amount of any disbursement of the Earnout Holdback to
which Borrower is entitled as of the date of any future Advance, the Operating Revenue from License
Agreements shall be limited to a maximum of nine percent (9%) of total Operating Revenue from the
Property, and any Operating Revenue from License Agreements in excess of nine percent (9%) of total
Operating Revenue from the Property will be excluded from In Place NOI in determining the amount of
the disbursement of the Earnout Holdback.



     “Insurance Expiration Date” — shall have the meaning given to such term in Section 4.2.



     “Insurance Impound” — shall have the meaning given to such term in Section 4.2.



     “Insurance Impound Account” — means a subaccount of the Restricted Account established and
maintained by Administrative Agent into which the Insurance Impound is to be deposited.



     “Insurance Premiums” — shall have the meaning given to such term in Section 4.2.



     “Key Properties” means those portions of the Property identified as (i) Ward Village Shops,
including the Ward Village Retail Shops and the WVRS Parking Garage (but excluding the Auahi
Condominium Land and any land required for the Auahi Shops, unless Auahi Shops remains as
Collateral as provided herein), (ii) the Ward Entertainment Center Property, (iii) the Ward Plaza
Property and (iv) the Ward Centre Property. In the event that Borrower constructs the Auahi Shops
while such property is included in the Collateral Pool, then the Auahi Shops shall be deemed a Key
Property.



     “Lease” and “Leases” — mean any and all present and future leases of the Property or any
portion thereof and all licenses and all other agreements of any kind for the use or occupancy of
the Property or any portion thereof.



     “Lease Materials” — mean, with respect to any Lease submitted to Administrative Agent and/or
Lenders for approval as set forth in this Agreement, a copy of the proposed Lease, and proposed
estoppel letter and subordination, nondisturbance and attornment agreement for such Lease, and
financial statements and other information necessary for Administrative Agent and/or Lenders to
review the creditworthiness of the proposed tenant under such Lease.



     “Leasing Commissions” — mean any leasing commissions payable in connection with Approved
Leases.



6









 





     “Lender” — means each financial institution from time to time party hereto as a “Lender”,
together with its respective successors and permitted assigns. With respect to matters requiring
the consent or approval of all Lenders at any given time, all then existing Defaulting Lenders will
be disregarded and excluded, and, for voting purposes only, “all Lenders” shall be deemed to mean
“all Lenders other than Defaulting Lenders”.



     “Lending Office” — means, for each Lender and for each type of Loan, the office of such Lender
specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and
Assumption Agreement, or such other office of such Lender as such Lender may notify the
Administrative Agent in writing from time to time.



     “LIBOR Loan” — means any portion of the Loan bearing interest at a rate based on the One-Month
LIBO Rate.



     “LIBOR Market Index Rate” means at any time the rate of interest, rounded up to the nearest
whole multiple of one-hundredth of one percent (.01%), obtained by dividing (i) the rate of
interest quoted by the Administrative Agent from time to time as the London Inter-Bank Rate for
one-month deposits in U.S. Dollars at approximately 9:00 a.m. Pacific time, two (2) Business Days
prior to the first Business Day of the period; provided, if such day is not a Business Day, the
immediately preceding Business Day by (ii) a percentage equal to 1 minus the stated maximum
rate (stated as a decimal) of all reserves, if any, required to be maintained with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified in
Regulation D of the Board of Governors, of the Federal Reserve System (or against any other
category of liabilities which includes deposits by reference to which the interest rate on LIBOR
loans is determined or any applicable category of extensions of credit or other assets which
includes loans by an office of any Lender outside of the United States of America). Any change in
such maximum rate shall result in a change in the LIBOR Market Index Rate on the date on which such
change in such maximum rate becomes effective.



     “License Agreement” — means, as of the applicable Determination Date, a Lease with an
expiration date that is less than 365 days.



     “Lien” — means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance (including, but not limited to, easements,
rights-of-way, zoning restrictions and the like), lien (statutory or other), preference, priority
or other security agreement or preferential arrangement of any kind or nature whatsoever, including
without limitation any conditional sale or other title retention agreement, the interest of a
lessor under a capital lease, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement or document having similar effect
(other than a financing statement filed by a “true” lessor pursuant to Section 9408 (or a successor
section) of the Uniform Commercial Code) naming the owner of the asset to which such Lien relates
as debtor, under the Uniform Commercial Code or other comparable law of any jurisdiction.



     “Limited Guaranty” — means that certain Limited Guaranty of even date herewith executed and
delivered by Guarantor to Administrative Agent for the benefit of Lenders.



     “Loan” — means the principal sum that Lenders agree to lend and Borrower agrees to borrow
pursuant to the terms and conditions of this Agreement: TWO HUNDRED FIFTY MILLION AND NO/100
DOLLARS ($250,000,000.00).



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



     “Loan Party” — means Borrower, Guarantor, Non-Borrower Mortgagors and any other person or
entity obligated under the Loan Documents or Other Related Documents.



7









 





     “Loan-to-Value Ratio” — means the quotient obtained by dividing (i) the sum of the
outstanding principal amount of the Loan, plus the amount of the Earnout Holdback eligible for
disbursement to Borrower as provided in this Agreement as of the date of the calculation of the
Loan-to-Value Ratio (if any), by (ii) the Appraised Value of the Property (after adjustment for
senior liens and regular and special tax assessments) then subject to the Mortgage, expressed as a
percentage.



     “Lockbox Account” means, collectively, one or more blocked, restricted deposit accounts for
Borrower established and maintained with a financial institution within Hawaii acceptable to
Administrative Agent, in the name of Borrower or Borrower’s designee for the benefit of
Administrative Agent, or such other name as Administrative Agent may direct in writing, into which
all revenues and income received from the Property shall be deposited.



     “Manager” — means Howard Hughes Management Co., LLC (if Borrower elects to enter into a
Management Agreement), and any replacement property manager approved by the Requisite Lenders .



     “Management Agreement” — means any management agreement that Borrower may enter into with
Manager in accordance with the terms of Section 8.1(c)(ix) below, and any replacement management
agreement approved by Administrative Agent.



     “Maturity Date” — means September 29, 2016.



     “Maximum Lawful Rate” shall mean the maximum lawful rate of interest which may be contracted
for, charged, taken, received or reserved by Lenders in accordance with the applicable laws of the
State of Texas (or applicable United States federal law to the extent that it permits Lenders to
contract for, charge, take, receive or reserve a greater amount of interest than under Texas law),
taking into account all Charges (as herein defined) made in connection with the transaction
evidenced by the Notes and the other Loan Documents.



     “Maximum Loan Amount” shall mean, as of any Determination Date, an amount equal to (1) the
lesser of (i) an amount determined by dividing In Place NOI by ten percent (10%) or (ii)
$250,000,000.00; minus (2) any principal prepayments made under the Loan.



     “Minor Lease” — shall have the meaning given to such term in Section 10.4(b).



     “Mortgage” — means, collectively, the Mortgages with Absolute Assignment of Leases and Rents,
Security Agreement and Fixture Filing of even date herewith executed by a Borrower and a
Non-Borrower Mortgagor, as Mortgagor, in favor of Administrative Agent, for the benefit of Lenders,
as Mortgagee, as hereafter amended, supplemented, replaced or modified.



     “Net Cash Flow” — means, for any period, (i) the Operating Revenues actually received by
Borrower from the operation of the Property for such period, plus any other cash receipts received
by Borrower in connection with the Property during such period not included in Operating Revenues,
less (ii) Operating Expenses incurred and paid by Borrower in connection with the operation and
maintenance of the Property during such period, debt service payments under the Loan during such
period, capital expenditures incurred in connection with the Property during such period and
Leasing Commissions and the cost of any Tenant Improvements incurred by Borrower during such period
with respect to Approved Leases to the extent not included in Operating Expenses.



     “Net Effective Rent” — means, for any Lease, the base rent scheduled under such Lease, as
reduced for any amounts paid by the landlord directly to or on behalf of the tenant for the purpose
of inducing the tenant to enter into such Lease, including without limitation, an excessive tenant
improvement allowance, moving expenses, free rent periods or abatements or lease buyouts.



     “Net Operating Income” — means, as of the applicable Determination Date, the Operating
Revenues from the Property for the previous twelve (12) month period prior to the applicable
Determination Date and which is included in the Collateral Pool as of the Determination Date, less
Operating Expenses from such Property for the previous twelve (12) month period prior to the
applicable



8









 





Determination Date; provided, however, Operating Revenues shall be adjusted so that only
revenue from Approved Leases is included in such calculation, and shall be further adjusted in
calculating In Place NOI as provided in the definition of In Place NOI.




     “Non-Borrower Mortgagors” — means, collectively, (i) Bank of Hawaii, a Hawaii corporation, as
Trustee under Land Trust No. 89433 dated October 21, 2004, (ii) Bank of Hawaii, a Hawaii
corporation, as Trustee under Land Trust No. 89434 dated October 21, 2004, (iii) First Hawaiian
Bank, a Hawaii corporation, as trustee under Land Trust Agreement No. FHB-TRES 200601 dated
September 20, 2006, and (iv) First Hawaiian Bank, a Hawaii corporation, as trustee under Land Trust
Agreement No. FHB-TRES 200602 dated September 20, 2006.



     “Non-Key Properties” means those portions of the Property which are not Key Properties or
Redevelopment Properties.



     “Non-Pro Rata Advance” — shall mean a Protective Advance or a disbursement under the Loan
with respect to which fewer than all Lenders have funded their respective Pro Rata Shares in breach
of their obligations under this Agreement.



     “Note” or “Notes” — means each Promissory Note Secured by Mortgage, collectively in the
original principal amount of the Loan, executed by Borrower and payable to the order of a Lender,
together with such other replacement notes as may be issued from time to time pursuant to Section
15.14, as hereafter amended, supplemented, replaced or modified.



     “One-Month LIBO Rate” — is the rate of interest equal to the sum of: (a) the Applicable
Margin plus (b) the rate of interest that is quoted by Administrative Agent from time to
time as the London InterBank Offered Rate for deposits in U.S. Dollars, at approximately 9:00 a.m.
(California time), two (2) Business Days prior to the first Business Day of the period, for a
period of one (1) month (“One-Month Rate”), which rate is divided by one (1.00) minus the Reserve
Percentage.



	 	 	 	 	 	 

	One-Month LIBO Rate = 2.5%

	 	+
	 	          One-Month Rate	 
	 

	 	 	 	 	 
	 

	 	 	 	          (1 — Reserve Percentage)	 






     “One-Month LIBO Rate Period” — is the period of one month from the first (1st)
Business Day of a calendar month to, but not including, the first (1st) Business Day of
the next calendar month; provided, however, no One-Month LIBO Rate Period shall extend beyond the
Maturity Date.



     “One-Month LIBO Rate Portion” — is the principal balance of the Loan which is subject to a
One-Month LIBO Rate. In the event Borrower is subject to a principal amortization schedule under
the terms and conditions of the Loan Documents, the One-Month LIBO Rate Portion shall in no event
exceed the maximum outstanding principal balance which will be permissible on the last day
of the One-Month LIBO Rate Period.



     “One-Month LIBO Rate Price Adjustment” — shall have the meaning set forth in Section 2.6(g).



     “One-Month LIBO Rate Taxes” — are, collectively, all withholdings, interest equalization
taxes, stamp taxes or other taxes (except income and franchise taxes) imposed by any domestic or
foreign Governmental Authority and related in any manner to a One-Month LIBO Rate.



     “Operating Account” — means operating account maintained with Administrative Agent, in the
name of Victoria Ward, Limited, into which Loan proceeds when qualified for disbursement shall be
deposited, and into which funds from the Lockbox Account shall be transferred on a daily basis
pursuant to the Cash Management Agreement so long as no Cash Trap Event Period is then existing.



     “Operating Expenses” — shall mean all reasonable operating expenses of the Property,
including, without limitation, (a) ad valorem real estate taxes and assessments (on an accrual
basis); (b) insurance premiums (on an accrual basis); (c) operating expenses incurred by Borrower
for the management, operation, cleaning, marketing, maintenance and repair of the Property,
including actual management



9









 




fees, payable to any property manager for the Property; and (d) a reserve for replacements in
the amount of $.20 per rentable square foot per year. Operating Expenses for this purpose shall
exclude (1) any capital expenditures (including the cost of any Tenant Improvements incurred in
connection with any Approved Leases); (2) any payment or expense to which the Borrower was or is to
be reimbursed for costs from proceeds of insurance, eminent domain, or any source other than
Operating Revenues; (3) debt service payments made under the Loan, (4) Leasing Commissions incurred
in connection with obtaining Approved Leases, (5) any non-cash expense item such as depreciation or
amortization, as such terms are used for accounting or federal income tax purposes and (6) any
expense properly classified as a non-recurring expense, subject to Administrative Agent’s review
and approval, such approval not to be unreasonably withheld.




     “Operating Revenues” — shall mean all cash receipts of the Property or otherwise arising with
respect to the Property, including (without limitation): (a) receipts from Approved Leases of the
Property; (b) scheduled expense reimbursements; (c) other miscellaneous operating sources from the
Property; and (d) proceeds of loss of rents insurance, if any. Operating Revenues shall exclude
(1) security deposits until and unless forfeited by the depositor; (2) lump sum payments to
Borrower for capital items, such as telephone, cable and security installation and equipment; (3)
any payment to Borrower from the proceeds of the Loan, insurance or any other source other than
Operating Revenues for reimbursement of costs; and (4) advances or loans to Borrower from any
partners of Borrower.



     “Operating Statement” — shall have the meaning given to such term in Section 11.4.



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



     “Parent” — shall have the meaning given to such term in the preamble hereto.



     “Participant” — shall have the meaning given to such term in Section 15.14(b).



     “Permit” — means any permit, approval, authorization, license, variance or permission
required from a Governmental Authority under any applicable Requirement of Law.



     “Permitted Liens” — means:




     (a) Liens (other than environmental Liens and any Lien imposed under ERISA) for taxes,
assessments or charges of any Governmental Authority for claims not yet due;




     (b) any laws, ordinances or regulations affecting the Property;




     (c) Liens imposed by laws, such as mechanics’ liens and other similar liens, arising in the
ordinary course of business which secure payment of obligations not more than thirty (30)
days past due or that are otherwise being contested or have been bonded over by Borrower in
accordance with Section 5.4 and/or Section 15.8 of this Agreement;




     (d) All matters shown on the Title Policy as exceptions to Lenders’ coverage thereunder;




     (e) Liens in favor of Administrative Agent, for the benefit of Lenders, under the Mortgage;
and




     (f) Easements that (i) are necessary or expedient to the use and enjoyment of the Property,
(ii) have no material adverse effect on the use, value, economic feasibility or
marketability of any of the Property and (iii) Administrative Agent and Lenders are not
required or requested to provide a written consent thereto, provided that Borrower shall in
any event provide a copy of any such easement to Administrative Agent within thirty (30)
days of execution of same. Any easement not satisfying the requirements of clauses (i)
through (iii) in the preceding sentence shall (x) be submitted to Administrative Agent prior
to execution of same and



10









 






Administrative Agent shall have given its written approval of same, such approval not to be
unreasonably withheld, conditioned or delayed so long as such easement does not have a
material adverse effect on the use, value, economic feasibility or marketability of any of
the Property and (y) be duly recorded in the appropriate real property records upon
Administrative Agent’s approval of same.



     “Person” — means any natural person, corporation, limited partnership, general partnership,
joint stock company, limited liability company, limited liability partnership, joint venture,
association, company, trust, bank, trust company, land trust, business trust or other organization,
whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority.



     “Potential Default” — means an event, circumstance or condition which has occurred or is
existing and with respect to which Administrative Agent has delivered written notice to Borrower
and which, with the lapse of time, would constitute a Default if not cured by Borrower within the
applicable cure period.



     “Prepayment Lockout Expiration Date” — shall have the meaning set forth in Section 2.7(c)(i).



     “Prepayment Premium” — means the prepayment premium due in connection with the prepayment of
the principal of the Loan, if any, as set forth in Section 2.7(c).



     “Price Adjustment Date” — shall have the meaning set forth in Section 2.6(g).



     “Pro Forma Rent” means the pro forma rent set forth in the Appraisal obtained by
Administrative Agent prior to the closing of the Loan (including, but not limited to, the lease
term, Net Effective Rent, expense recovery and tenant improvement/concession package).



     “Prohibited Equity Transfer” — shall have the meaning set forth in Section 13.2(a).



     “Prohibited Property Transfer” — shall have the meaning set forth in Section 13.1(a).



     “Property” — shall have the meaning given to such term in Recital A. The Property generally
consists of a mixed-use development containing approximately 1,162,094 square feet of improvements
consisting of retail, office and industrial assets located along Ala Moana Boulevard in Honolulu,
Hawaii, and commonly referred to as “Ward Centers”.



     “Property Release” shall have the meaning given such term in Section 2.11.



     “Pro Rata Share” — means, as to each Lender, the ratio, expressed as a percentage, of (a) the
amount of such Lender’s Commitment to (b) the aggregate amount of the Commitments of all Lenders
hereunder; provided, however, that if at the time of determination the Commitments
have terminated or been reduced to zero, the “Pro Rata Share” of each Lender shall be the Pro Rata
Share of such Lender in effect immediately prior to such termination or reduction.



     “Protective Advance” — shall mean any advances made by Administrative Agent in accordance
with the provisions of Section 14.7(e) to protect the Collateral securing the Loan.



     “Qualified Redevelopment Release” — means a Property Release of a Redevelopment Property or a
Non-Key Property obtained in accordance with this Agreement for the purposes of redeveloping such
Redevelopment Property or a Non-Key Property, provided, that in order for such Property Release to
be a Qualified Redevelopment Release, such Redevelopment Property or Non-Key Property shall be
contributed to an entity in which a Borrower or Guarantor has an ownership interest (directly or
indirectly) and which is Controlled by Borrower or Guarantor, which entity shall be the owner of
the Redevelopment Property or a Non-Key Property during the redevelopment thereof.



     “Redevelopment Properties” means those portions of the Property identified as (i) the Ward
Gateway Property, (ii) the Ward Village Property, (iii) the Ward Industrial Property, (iv) the Ward
Warehouse Property and (v) that portion of Ward Village Shops consisting of the Auahi Condominium



11









 




Land and to be developed as the Auahi Condominiums, and Auahi Shops (except in the event that
Borrower completes construction of Auahi Shops, in which event such Property shall be deemed a Key
Property), but specifically excluding Ward Village Retail Shops and the WVRS Parking Garage.




     “Regulatory Change” — means, with respect to any Lender, any change effective after the
Effective Date in Applicable Law (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) by any Governmental Authority or monetary authority charged
with the interpretation or administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy. Notwithstanding anything herein to the contrary, (a) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Regulatory
Change”, regardless of the date enacted, adopted or issued.



     “Regulatory Costs” — are, collectively, future, supplemental, emergency or other changes in
Reserve Percentages, assessment rates imposed by the Federal Deposit Insurance Corporation, or
similar requirements or costs imposed by any domestic or foreign Governmental Authority and related
in any manner to a One-Month LIBO Rate.



     “Related Indebtedness” shall mean any and all debt paid or payable by Borrower to
Administrative Agent and/or Lenders pursuant to the Loan Documents or any other communication or
writing by or between Borrower and Administrative Agent and/or Lenders related to the transaction
or transactions that are the subject matter of the Loan Documents, except such debt which has been
paid or is payable by Borrower to Lenders under the Notes.



     “Release Price” means, (i) with respect to any Redevelopment Property that is the subject of a
Property Release as provided in Section 2.11, an amount that, when applied to the outstanding
principal balance of the Loan, results in the remaining Collateral Pool (after giving effect to the
Property Release of such Redevelopment Property) generating a Debt Yield of ten percent (10%) and a
Loan-to-Value Ratio of not more than sixty-five percent (65%) and (ii) with respect to any Non-Key
Property that is the subject of a Property Release as provided in Section 2.11, an amount equal to
the greater of (1) an amount obtained by dividing In Place NOI from such Non-Key Property by ten
percent (10.0%) or (2) a principal payment in an amount that, when applied to the outstanding
principal balance of the Loan, results in the remaining Collateral Pool (after giving effect to the
Property Release of such Non-Key Property) generating a Debt Yield of ten percent (10%) and a
Loan-to-Value Ratio of not more than sixty-five percent (65%).



     “Remargin Date” — means the date which is thirty-six (36) months after the date of this
Agreement.



     “Replacement Rate” shall mean the sum of (a) the per annum rate of interest equal to the
Federal Funds Rate plus 1.50% and (b) the Applicable Margin.



     “Requirements of Law” — means, as to any entity, the charter and by-laws, partnership
agreement or other organizational or governing documents of such entity, and any law, rule or
regulation, Permit, or determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such entity or any of its property or to which such
entity or any of its property is subject, including without limitation, applicable securities laws
and any certificate of occupancy, zoning ordinance, building, environmental or land use requirement
or Permit or occupational safety or health law, rule or regulation.



     “Requisite Lenders” — means, as of any date, Lenders (which must include the Lender then
acting as Administrative Agent) having at least 66-2/3% of the aggregate amount of the Commitments,
or,



12









 




if the Commitments have been terminated or reduced to zero, Lenders holding at least 66-2/3%
of the principal amount outstanding under the Loan, provided that (a) in determining such
percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded
and the Pro Rata Shares of the Loan of Lenders shall be redetermined, for voting purposes only, to
exclude the Pro Rata Shares of the Loan of such Defaulting Lenders, and (b) at all times when two
or more Lenders are party to this Agreement, the term “Requisite Lenders” shall in no event mean
less than two Lenders.




     “Reserve Percentage” — is at any time the percentage announced by Administrative Agent as the
reserve percentage under Regulation D for loans and obligations making reference to a One-Month
LIBO Rate. The Reserve Percentage shall be based on Regulation D or other regulations from time to
time in effect concerning reserves for Eurocurrency Liabilities as defined in Regulation D from
related institutions as though Administrative Agent were in a net borrowing position, as
promulgated by the Board of Governors of the Federal Reserve System, or its successor.



     “Restricted Account” — means a demand deposit account established with Administrative Agent
in the name of Borrower or Borrower’s designee for the benefit of Administrative Agent, or such
other name as Administrative Agent may direct in writing, in to which all required Impounds shall
be deposited by Borrower.



     “Restricted Party” shall mean each of (i) Borrower, (ii) Guarantor, (iii) any Non-Borrower
Mortgagor, (iv) any Person obligated under any guaranty or indemnity made in favor of
Administrative Agent and Lenders in connection with the Loan and (v) any shareholder, partner,
member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower,
Guarantor, Non-Borrower Mortgagor or any other Person obligated under a guaranty or indemnity made
in favor of Administrative Agent and Lenders in connection with the Loan.



     “Secured Obligations” — shall have the meaning given to such term in the Mortgage.



     “Separateness Provisions” — shall have the meaning set forth in Section 8.1(c).



     “Site Plan” — means the map generally depicting the location and configuration of each
Property, and which is attached hereto as Exhibit F.



     “Subdivision Map” — shall have the meaning given to such term in Section 10.5.



     “Swap Contract” — means any swap, derivative, foreign exchange or hedge transaction or
arrangement (or similar transaction or arrangement howsoever described or defined) at any time
entered into between Borrower and Wells Fargo, or another financial institution approved by
Administrative Agent in its sole discretion, in connection with the Loan, together with all
documents and agreements relating thereto, including any ISDA Master Agreement, ISDA Schedule and
trade confirmation, together with all modifications, extensions, renewals and replacements thereof.



     “Taxes” — shall have the meaning given to such term in Section 4.1.



     “Tax Impound” — shall have the meaning given to such term in Section 4.1.



     “Tax Impound Account” — means a subaccount of the Restricted Account established and
maintained by Administrative Agent into which the Tax Impound is to be deposited.



     “Tenant Improvements” means any tenant improvements to be constructed by or paid for by
Borrower pursuant to Approved Leases covering a portion of the Property.



     “Title Policy” — means the ALTA Lender’s Policy of Title Insurance as issued by First
American Title Insurance Company.



     “Transfer” — shall mean any sale, installment sale, exchange, mortgage, pledge, hypothecation,
assignment, encumbrance or other transfer, conveyance or disposition, whether voluntarily,
involuntarily or by operation of law or otherwise.



13









 





     “Unfunded Initial Facility” means the aggregate amount of the Commitments comprising the
Initial Facility Amount which have not yet been advanced under this Agreement and which remain
available for disbursement to Borrower in accordance with the terms of this Agreement.



     “Variable Rate” shall mean the sum of: (a) the LIBOR Market Index Rate and (b) the Applicable
Margin; provided, that if for any reason the LIBOR Market Index Rate is unavailable, the Variable
Rate shall mean the Replacement Rate.



     “Variable Rate Portion” — is the principal balance of the Loan which is subject to a Variable
Rate, including without limitation, any Advances of the Loan made on a date other than a Due Date,
or any portion of the Loan for which Borrower affirmatively elects to bear interest at the Variable
Rate as provided in Section 2.6(e) hereof.



     “Ward Centre Property” — means that portion of the Property described as the Ward Centre
Property on Exhibit A-1 attached hereto and generally depicted on Exhibit F
attached hereto, and owned by Bank of Hawaii, a Hawaii corporation, as Trustee under Land Trust No.
89433 dated October 21, 2004, and the beneficial owner of which is Ward Center.



     “Ward Entertainment Center Property” — means that portion of the Property described as the
Ward Entertainment Center Property on Exhibit A-2 attached hereto and generally depicted on
Exhibit F attached hereto, and owned by Bank of Hawaii, a Hawaii corporation, as Trustee
under Land Trust No. 89434 dated October 21, 2004, and the beneficial owner of which is Ward
Entertainment.



     “Ward Gateway Property” — means that portion of the Property described as the Ward Gateway
Property on Exhibit A-3 attached hereto and generally depicted on Exhibit F
attached hereto, and owned by First Hawaiian Bank, a Hawaii corporation, as trustee under Land
Trust Agreement No. FHB-TRES 200602 dated September 20, 2006, the beneficial owner of which is Ward
Gateway.



     “Ward Industrial Property” — means that portion of the Property depicted as the Ward
Industrial Property on Exhibit A-4 attached hereto and also generally depicted on
Exhibit F attached hereto, and owned by First Hawaiian Bank, a Hawaii corporation, as
trustee under Land Trust Agreement No. FHB-TRES 200602 dated September 20, 2006, the beneficial
owner of which is Ward Gateway.



     “Ward Plaza Property” — means that portion of the Property described as the Ward Plaza
Property on Exhibit A-5 attached hereto and generally depicted on Exhibit F
attached hereto, and owned by First Hawaiian Bank, a Hawaii corporation, as trustee under Land
Trust Agreement No. FHB-TRES 200601 dated September 20, 2006, the beneficial owner of which is Ward
Plaza.



     “Ward Village Property” — means that portion of the Property depicted as the Ward Village
Property on Exhibit A-6 attached hereto and also generally depicted on Exhibit F
attached hereto, and owned by Parent.



     “Ward Village Retail Shops” — means the approximately 65,000 rentable square feet of retail
space currently under construction on a portion of Ward Village Shops, and being depicted generally
on Exhibit A-9 attached hereto.



     “Ward Village Shops” — means that portion of the Property described as Ward Village Shops on
Exhibit A-7 attached hereto and generally depicted on Exhibit F attached hereto,
and owned by Parent, and which includes Ward Village Retail Shops and the existing WVRS Parking
Garage.



     “Ward Warehouse Property” — means that portion of the Property described as the Ward
Warehouse Property on Exhibit A-8 attached hereto and generally depicted on Exhibit
F attached hereto, and owned by First Hawaiian Bank, a Hawaii corporation, as trustee under
Land Trust Agreement No. FHB-TRES 200601 dated September 20, 2006, the beneficial owner of which is
Ward Plaza.



     “Wells Fargo” — shall have the meaning given to such term in the preamble hereto.



14









 





     “WVRS Holdback” means a holdback in the amount of $2,600,000 from the Earnout Holdback (being
an amount equal to $40.00 per rentable square foot of the rentable space within Ward Village Retail
Shops), which amount shall only be available for disbursement to Borrower to pay for Tenant
Improvements and Leasing Commissions incurred in connection with or pursuant to Approved Leases
covering portions of the Ward Village Retail Shops as hereinafter provided.



     “WVRS Parking Garage” means the existing parking garage currently constructed in the
northwestern corner of the Ward Village Shops.



     1.2 SCHEDULES AND EXHIBITS INCORPORATED. Schedules 1.1, 7.6 and
8.1, and Exhibits A, B, C, D, E, F
and G, all attached hereto, are hereby incorporated into this Agreement.



ARTICLE 2. LOAN




     2.1 LOAN.




     (a) Initial Facility Amount; Initial Advance. By and subject to the terms of this
Agreement, Lenders agree to lend to Borrower, and Borrower agrees to borrow from Lenders,
the principal sum of TWO HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($250,000,000.00), said
sum to be evidenced by the Notes. The Notes shall be secured, in part, by the Mortgage
encumbering certain real property and improvements as legally defined therein.
Notwithstanding anything to the contrary contained in this Agreement, any principal payments
made by Borrower under the Loan shall reduce Lenders’ Commitment by a like amount, and any
such amounts repaid by Borrower may not be reborrowed. Advances under the Loan shall
initially be limited to the Initial Facility Amount (which amount is comprised of the
Initial Advance and the Unfunded Initial Facility). The Initial Advance disbursed to or on
behalf of Borrower pursuant to the Notes shall be used to refinance the existing
indebtedness on the Property and pay all closing costs and expenses incurred in connection
with the Loan. Any remaining Unfunded Initial Facility shall only be disbursed from time to
time on the terms and conditions set forth in this Agreement to pay for the cost of
Additional Improvements, including without limitation, the cost of Tenant Improvements and
Leasing Commissions incurred or payable under Approved Leases and any hard or soft
redevelopment costs incurred in connection with the Property and the Additional
Improvements. In addition, Borrower may use the Unfunded Initial Facility to distribute to
its partners or members sums of money to reimburse such partners or members for funds that
were advanced (and reasonable capital costs associated therewith) by such partners or
members to fund costs incurred after the Effective Date to complete construction of
Additional Improvements, including without limitation, the cost of any Tenant Improvements
and Leasing Commissions incurred by Borrower from time to time under Approved Leases with
respect thereto. Portions of the Unfunded Initial Facility shall be advanced from time to
time to Borrower in installments within ten (10) Business Days after receipt by
Administrative Agent of an Application for Payment and satisfaction of the conditions
provided in Section 3.2 below with respect to the requested Advance.




     (b) Earnout Holdback; Subsequent Advances. The funding of the Earnout Holdback shall be
subject to the terms and conditions set forth in this Agreement. The Earnout Holdback shall
only be used by Borrower to (i) pay for the cost of any Additional Improvements, including
without limitation, the cost of Tenant Improvements and Leasing Commissions incurred or
payable under Approved Leases and other hard or soft redevelopment costs incurred in
connection with capital improvements to the Property, (ii) any redevelopment costs incurred
in connection with the Property and (iii) reimburse Borrower for capital expenditures
incurred by Borrower from and after November 9, 2010 in connection with the development
and/or improvement of the Property. Portions of the Earnout Holdback shall be advanced from
time to time to Borrower in installments within ten (10) Business Days after receipt by
Administrative Agent of a request for an Advance demonstrating the satisfaction of the
conditions set forth in Section 3.3 of this Agreement. Notwithstanding the foregoing or
anything else to the contrary contained in this Agreement, subject to Section 3.3 hereof,
the WVRS Holdback shall only be available for disbursement to Borrower from the Earnout
Holdback to pay for Tenant



15









 







Improvements and Leasing Commissions incurred in connection with or pursuant to Approved
Leases covering portions of the Ward Village Retail Shops, and such amount may not be
disbursed for any other purpose without Administrative Agent’s approval in Administrative
Agent’s sole discretion. The amount of each Advance for which Borrower is eligible from the
Earnout Holdback shall be based on the Debt Yield from the Collateral Pool as of any
Determination Date, and shall be determined as set forth in Section 3.3(e).



     2.2 LOAN FEES. Borrower shall pay to Administrative Agent, at Loan closing, a loan fee as set
forth in separate letter agreements between Borrower and Administrative Agent and Administrative
Agent and Lenders. Additionally, Borrower shall pay to Administrative Agent, for the sole benefit
of Administrative Agent, certain other fees, each in the amount and at the times as set forth in a
separate letter agreement between Borrower and Administrative Agent dated July 19, 2011 (the “Fee
Letter”).



     2.3 LOAN DOCUMENTS. Borrower shall execute and deliver to Administrative Agent (or cause to be
executed and delivered) concurrently with this Agreement each of the documents, properly executed
and in recordable form, as applicable, described in Exhibit B as Loan Documents, together
with those documents described in Exhibit B as Other Related Documents.



     2.4 EFFECTIVE DATE. The date of the Loan Documents is for reference purposes only. The
Effective Date of the Loan Documents shall have the meaning set forth in Section 1.1.



     2.5 MATURITY DATE. The maturity date of the Loan shall be on the Maturity Date, at which time
all sums due and owing under this Agreement and the other Loan Documents shall be repaid in full.
All payments due to Administrative Agent and Lenders under this Agreement, whether at the Maturity
Date or otherwise, shall be paid in Dollars in immediately available funds.



     2.6 INTEREST ON THE LOAN.




     (a) Interest Payments. Accrued but unpaid interest on the outstanding principal balance
of the Loan through the prior month’s end shall be due and payable, in the manner provided
in Section 2.7, on the eleventh (11th) day of each month (the “Due Date”)
commencing with the first month after the Effective Date.




     (b) Default Interest. Notwithstanding the rates of interest specified in Sections
2.6(e) below and the payment dates specified in Section 2.6(a), at Requisite Lenders
discretion at any time following the occurrence and during the continuance of any Default,
the principal balance of the Loan then outstanding and, to the extent permitted by
applicable law, any interest payments on the Loan not paid when due, shall bear interest
payable upon demand at the Default Rate. All other amounts due Administrative Agent or
Lenders (whether directly or for reimbursement) under this Agreement or any of the other
Loan Documents if not paid when due, or if no time period is expressed, if not paid within
ten (10) days after demand, shall likewise, at the option of Requisite Lenders, bear
interest from and after demand at the Default Rate.




     (c) Late Fee. Borrower acknowledges that late payment to Administrative Agent will
cause Administrative Agent and Lenders to incur costs not contemplated by this Agreement.
Such costs include, without limitation, processing and accounting charges. Therefore, if
Borrower fails timely to pay any sum due and payable hereunder through the Maturity Date
(other than payment of the entire outstanding balance of the Loan on the Maturity Date),
unless waived by Administrative Agent, a late charge of four cents ($.04) for each dollar of
any such principal payment, interest or other charge due hereon and which is not paid within
fifteen (15) days after such payment is due, shall be charged by Administrative Agent (for
the benefit of Lenders) and paid by Borrower for the purpose of defraying the expense
incident to handling such delinquent payment. Borrower and Administrative Agent agree that
this late charge represents a reasonable sum considering all of the circumstances existing
on the date hereof and represents a fair and reasonable estimate of the costs that
Administrative Agent and Lenders will incur by reason of late payment. Borrower and
Administrative Agent further agree that proof of actual damages would be costly and
inconvenient. Acceptance of any late charge shall not constitute a waiver of



16









 




the default with respect to the overdue installment, and shall not prevent Administrative
Agent from exercising any of the other rights available hereunder or any other Loan
Document. Such late charge shall be paid without prejudice to any other rights of
Administrative Agent.





     (d) Computation of Interest. Interest shall be computed on the basis of the actual
number of days elapsed in the period during which interest or fees accrue and a year of
three hundred sixty (360) days on the principal balance of the Loan outstanding from time to
time. In computing interest on the Loan, the date of the making of a disbursement under the
Loan shall be included and the date of payment shall be excluded. Notwithstanding any
provision in this Section 2.6, interest in respect of the Loan shall not exceed the Maximum
Lawful Rate.




     (e) Effective Rate. The “Effective Rate” upon which interest shall be calculated for
the Loan shall, from and after the Effective Date of this Agreement, be one or more of the
following:




	 	(i)	 	Provided no Default exists under this Agreement:






	 	(A)	 	Initial Advance; Subsequent Advances During
Any Calendar Month. For the Initial Advance of principal under
this Agreement, and for any subsequent Advances of principal during any
calendar month which are not made on a Due Date, the Effective Rate on
such principal amount shall be the Variable Rate on the date of
disbursement as determined by Administrative Agent. Such Effective
Rate shall apply to such principal amount from the date of disbursement
through and including the date immediately preceding the first
(1st) Business Day of the next calendar month.
	 
	 	(B)	 	Monthly Reset of One-Month LIBO Rate.
On the first (1st) Business Day of a calendar month, any
principal outstanding under the Notes and which is not a Variable Rate
Portion shall be the One-Month LIBO Rate Portion for purposes of
calculation of the Effective Rate under this section. Commencing with
the first (1st) Business Day of the first (1st)
calendar month after the Initial Advance of principal under this
Agreement, and continuing thereafter on the first (1st)
Business Day of each succeeding calendar month, the Effective Rate on
the outstanding One-Month LIBO Rate Portion under the Loan (i.e., all
outstanding principal on such first (1st) Business Day which
is not a Variable Rate Portion) shall be reset to the One-Month LIBO
Rate, as determined by Administrative Agent on each such first
(1st) Business Day.
	 
	 	(C)	 	Selection of Variable Rate. With
respect to any Advance under this Agreement that bears interest at the
Variable Rate, if Borrower desires to have such portion of the Loan
continue to bear interest at the Variable Rate after the date of an
Advance, or if Borrower otherwise desires to have any portion of the
Loan bear interest at the Variable Rate at any other time, then
Borrower shall deliver to the Administrative Agent, Wells Fargo Bank,
N.A, Minneapolis Loan Center, 608 2nd Avenue South,
11th Floor, MAC N9303-10, Minneapolis, MN 55402-1916, or
such other addresses as Administrative Agent shall designate, an
original or facsimile notice (a “Variable Rate Notice”) no later than
9:00 A.M. (California time), not less than three (3) Business Days
prior to end of the calendar month, which Variable Rate Notice shall
specify the amount of principal the Borrower desires to bear interest
at the Variable Rate (which shall be a Variable Rate Portion).
Notwithstanding the preceding sentence, upon election of a Variable
Rate in accordance with the foregoing, the Variable Rate Portion of the
Loan shall thereafter bear interest at the Variable Rate unless and
until Borrower thereafter sends




17









 






	 	 	 	written notice to Administrative Agent that Borrower elects to have
such Variable Rate Portion bear interest at the One-Month LIBO Rate.
	 
	 	(D)	 	If One-Month LIBO Rate Becomes
Unavailable. In the event the One-Month LIBO Rate, for any reason,
should become prohibited or unavailable to Administrative Agent, or, if
in Administrative Agent’s good faith judgment, it is not possible or
practical for Administrative Agent to set a One-Month LIBO Rate, THEN
the Effective Rate shall be the Replacement Rate.






	 	(ii)	 	During such time as a Default exists under this Agreement; or
from and after the date on which all sums owing under the Notes become due and
payable by acceleration or otherwise; or from and after the date on which the
Collateral or any portion thereof or interest therein, is sold, transferred,
mortgaged, assigned, or encumbered, whether voluntarily or involuntarily, or by
operation of law or otherwise, without Administrative Agent’s prior written
consent (whether or not the sums owing under the Notes become due and payable
by acceleration); or from and after the Maturity Date, then at the option of
Requisite Lenders in each case, the interest rate applicable to the then
outstanding principal balance of the Loan shall be the Default Rate.
	 
	 	(f)	 	One-Month LIBO Rate Taxes, Regulatory Costs and Reserve Percentages.
	 
	 	(i)	 	Upon Administrative Agent’s demand, Borrower shall pay to
Administrative Agent for the account of each Lender, in addition to all other
amounts which may be, or become, due and payable under this Agreement and the
other Loan Documents, any and all One-Month LIBO Rate Taxes and Regulatory
Costs, to the extent they are not internalized by calculation of an Effective
Rate. Further, at Administrative Agent’s option, the Effective Rate shall be
automatically adjusted by adjusting the Reserve Percentage, as determined by
Administrative Agent in its prudent banking judgment, from the date of
imposition (or subsequent date selected by Administrative Agent) of any such
Regulatory Costs. Administrative Agent shall give Borrower notice of any
One-Month LIBO Rate Taxes and Regulatory Costs as soon as practicable after
their occurrence, but Borrower shall be liable for any One-Month LIBO Rate
Taxes and Regulatory Costs regardless of whether or when notice is so given.
	 
	 	(ii)	 	In the event that any Lender incurs additional costs on account
of any increased Regulatory Costs, changes in the Reserve Percentage, or
capital adequacy requirements pursuant to Section 15.15(a) of this Agreement,
and such Lender elects to have Borrower pay or reimburse it for such additional
costs, Administrative Agent shall give Borrower thirty (30) days prior written
notice thereof, with a reasonably detailed estimate of the amount of such
additional costs. In the event that such additional costs would result in a
material increase in the cost of the Borrower’s annual debt service under the
Loan (which, for purposes of this paragraph, shall be defined as an increase of
5% or more of the debt service payable by Borrower solely on account of such
additional costs), Borrower shall have the right and option to prepay the Loan
in full, but not in part, without prepayment premium or penalty.





     (g) One-Month LIBO Price Adjustment. Borrower acknowledges that prepayment or
acceleration of a One-Month LIBO Rate Portion during a One-Month LIBO Rate Period shall
result in Lenders’ incurring additional costs, expenses and/or liabilities and that it is
extremely difficult and impractical to ascertain the extent of such costs, expenses and/or
liabilities. Therefore, on the date a One-Month LIBO Rate Portion is prepaid or the date
all sums payable hereunder become due and payable, by acceleration or otherwise (“Price
Adjustment Date”), Borrower will pay Administrative Agent, for the account of each Lender
(in addition to all other



18









 




sums then owing to Lenders) an amount (“One-Month LIBO Rate Price Adjustment”) equal to the
then present value of (i) the amount of interest that would have accrued on the One-Month
LIBO Rate Portion for the remainder of the One-Month LIBO Rate Period at the One-Month LIBO
Rate set on the first (1st) Business Day of the month in which such amount is
prepaid or becomes due, less (ii) the amount of interest that would accrue on the same
One-Month LIBO Rate Portion for the same period if the One-Month LIBO Rate were set on the
Price Adjustment Date at the One-Month LIBO Rate in effect on the Price Adjustment Date.
The present value shall be calculated by the Administrative Agent, for the benefit of the
Lenders, using as a discount rate the One-Month LIBO Rate quoted on the Price Adjustment
Date.




     (h) Purchase, Sale and Matching of Funds. Borrower understands, agrees and acknowledges
the following: (a) Lenders have no obligation to purchase, sell and/or match funds in
connection with the use of a One-Month LIBO Rate as a basis for calculating an Effective
Rate or One-Month LIBO Rate Price Adjustment; (b) a One-Month Rate is used merely as a
reference in determining an Effective Rate and One-Month LIBO Rate Price Adjustment; and (c)
Borrower has accepted a One-Month Rate as a reasonable and fair basis for calculating an
Effective Rate and a One-Month LIBO Rate Price Adjustment. Borrower further agrees to pay
the One-Month LIBO Rate Price Adjustment, One-Month LIBO Rate Taxes and Regulatory Costs, if
any, whether or not any Lender elects to purchase, sell and/or match funds.



     (i) Usury. It is expressly stipulated and agreed to be the intent of Borrower and
Lenders at all times to comply strictly with the applicable Texas law governing the maximum
rate or amount of interest payable on the Notes or the Related Indebtedness (or applicable
United States federal law to the extent that it permits Lenders to contract for, charge,
take, reserve or receive a greater amount of interest than under Texas law). Accordingly,
if applicable law (or any judicial interpretation thereof) renders usurious any amount (i)
contracted for, charged, taken, reserved or received pursuant to the Notes, any of the other
Loan Documents or any other communication or writing by or between Borrower and Lenders
related to the transaction or transactions that are the subject matter of the Loan
Documents, (ii) contracted for, charged or received by reason of Lenders’ exercise of the
option to accelerate the maturity of the Notes and/or the Related Indebtedness, or (iii)
Borrower will have paid or Lenders will have received by reason of any voluntary prepayment
by Borrower of the Notes and/or the Related Indebtedness, then it is Borrower’s and Lenders’
express intent that all amounts charged in excess of the Maximum Lawful Rate shall be
automatically cancelled, ab initio, and all amounts in excess of the Maximum Lawful Rate
theretofore collected by Lenders shall be credited on the principal balance of the Notes
and/or the Related Indebtedness (or, if the Notes and all Related Indebtedness have been or
would thereby be paid in full, refunded to Borrower), and, to the fullest extent permitted
under applicable law, the provisions of the Notes and the other Loan Documents immediately
be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced,
without the necessity of the execution of any new document, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise called for
hereunder and thereunder; provided, however, if the Notes have been paid in full before the
end of the stated term of the Notes, then Borrower and Lenders agree that Lenders shall
either refund such excess interest to Borrower and/or credit such excess interest against
the Notes and/or any Related Indebtedness then owing by Borrower to Lenders. To the fullest
extent permitted under applicable law, Borrower hereby agrees that as a condition precedent
to any claim seeking usury penalties against Lenders, Borrower will provide written notice
to Lenders, advising Lenders in reasonable detail of the nature and amount of the violation,
and Lenders shall have sixty (60) days after receipt of such notice in which to correct such
usury violation, if any, by either refunding such excess interest to Borrower or crediting
such excess interest against the Notes and/or the Related Indebtedness then owing by
Borrower to Lenders. All sums contracted for, charged or received by Lenders for the use,
forbearance or detention of any debt evidenced by the Notes and/or the Related Indebtedness
shall, to the extent permitted by applicable law, be amortized or spread, using the
actuarial method, throughout the stated term of the Notes and/or the Related Indebtedness
(including any and all renewal and extension periods) until payment in full so that the rate
or amount of interest on account of the Notes and/or the Related



19









 




Indebtedness does not exceed the Maximum Lawful Rate from time to time in effect and
applicable to the Notes and/or the Related Indebtedness for so long as debt is outstanding.
In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates
certain revolving credit loan accounts and revolving triparty accounts) apply to the Notes
and/or the Related Indebtedness. Notwithstanding anything to the contrary contained herein
or in any of the other Loan Documents, it is not the intention of Lenders to accelerate the
maturity of any interest that has not accrued at the time of such acceleration or to collect
unearned interest at the time of such acceleration. To the fullest extent permitted under
applicable law, Borrower and Lenders hereby agree that any and all suits alleging the
contracting for, charging or receiving of usurious interest shall lie in Dallas County,
Texas, and each irrevocably waive the right to venue in any other county. To the extent
that Lenders are relying on Chapter 303 of the Texas Finance Code to determine the Maximum
Lawful Rate payable on the Notes and/or the Related Indebtedness, Lenders will utilize the
weekly ceiling from time to time in effect as provided in such Chapter 303, as amended. To
the extent United States federal law permits Lenders to contract for, charge, take, receive
or reserve a greater amount of interest than under Texas law, Lenders will rely on United
States federal law instead of such Chapter 303 for the purpose of determining the Maximum
Lawful Rate. Additionally, to the extent permitted by applicable law now or hereafter in
effect, Lenders may, at its option and from time to time, utilize any other method of
establishing the Maximum Lawful Rate under such Chapter 303 or under other applicable law by
giving notice, if required, to Borrower as provided by applicable law now or hereafter in
effect.



2.7 PAYMENTS.




     (a) Manner and Time of Payment. All payments of principal, interest and fees hereunder
payable to Administrative Agent or the Lenders shall be made without condition or
reservation of right and free of set-off or counterclaim, in Dollars and by wire transfer
(pursuant to Administrative Agent’s written wire transfer instructions) of immediately
available funds, to Administrative Agent, for the account of each Lender as applicable, not
later than 11:00 A.M. (San Francisco, California time) on the date due; and funds received
by Administrative Agent after that time and date shall be deemed to have been paid on the
next succeeding Business Day.



     (b) Payments on Non-Business Days. Whenever any payment to be made by Borrower
hereunder shall be stated to be due on a day which is not a Business Day, payments 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 and of any fees due under this Agreement,
as the case may be.



     (c) Prepayment.




	 	(i)	 	Notwithstanding anything to the contrary contained herein,
Borrower may obtain a Qualified Redevelopment Release at any time after the
Effective Date, provided that all conditions to a Property Release are
otherwise satisfied, including without limitation, Borrower’s payment to
Administrative Agent, on behalf of the Lenders, of the applicable Release Price
in connection with such Qualified Redevelopment Release. Except for Qualified
Redevelopment Releases (and the payment of the applicable Release Price in
connection therewith), Borrower may not prepay any portion of the Loan prior to
July 31, 2013 (the “Prepayment Lockout Expiration Date”). Further, except for
prepayments of a part of the outstanding indebtedness of the Loan in connection
with (i) a Qualified Redevelopment Release or (ii) the sale or refinancing of a
Non-Key Property or a Redevelopment Property and the related Property Release
after the Prepayment Lockout Expiration Date, Borrower shall not have the right
to make partial prepayments of the outstanding principal of the Loan; provided,
further, that in connection with any sale or refinancing of a Non-Key Property
or a Redevelopment Property, Borrower shall pay the applicable Prepayment
Premium provided herein. After the Prepayment Lockout Expiration




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	 	 	 	Date, Borrower may prepay the outstanding principal of the Loan attributable
to a Non-Key Property or Redevelopment Property, as the case may be, in full
or in part in connection with a refinancing or sale of such Non-Key Property
or such Redevelopment Property in accordance with Section 2.7(c)(ii) below,
but Borrower shall not have the right to prepay the outstanding principal of
the Loan applicable to the Key Properties (except as expressly permitted
herein in connection with a payoff of the entire indebtedness outstanding
under the Loan after the Prepayment Lockout Expiration Date and the payment
of the applicable Prepayment Premium).
	 
	 	(ii)	 	Prepayment Premiums — Non-Key Properties and Redevelopment
Properties. If the prepayment in connection with a Non-Key Property or a
Redevelopment Property occurs during the period after the Prepayment Lockout
Expiration Date through and including July 31, 2014, the Prepayment Premium
shall be one-half percent (.5%) of the principal amount being prepaid. If the
prepayment in connection with a Non-Key Property or Redevelopment Property
occurs during the period from and after August 1, 2014 through and including
July 31, 2015, the Prepayment Premium shall be one-quarter percent (.25%) of
the principal amount being prepaid. Any prepayment in connection with a
Non-Key Property or Redevelopment Property occurring after July 31, 2015 shall
not be subject to any Prepayment Premium. Notwithstanding the foregoing, in
the event that a prepayment in connection with a Non-Key Property or
Redevelopment Property occurs in connection with the sale of such Non-Key
Property or Redevelopment Property by the applicable Borrower to a third party
which is not an Affiliate of Borrower or Guarantor or any of their constituent
entities, then (i) the Prepayment Premium for the period after the Prepayment
Lockout Expiration Date through and including July 31, 2014 shall be reduced to
two-tenths of one percent (.2%) of the principal amount being repaid, and (ii)
the Prepayment Premium for the period from and after August 1, 2014 through and
including July 31, 2015 shall be reduced to one-tenth of one percent (.1%) of
the principal amount being repaid. Notwithstanding the foregoing or anything
to the contrary contained in this Agreement, no Prepayment Premium shall be due
or payable in connection with a Qualified Redevelopment Release of a Non-Key
Property or Redevelopment Property. Any prepayment made in connection with a
Non-Key Property or Redevelopment Property shall be (i) made concurrently with
the payment of the applicable Release Price for such Non-Key Property or
Redevelopment Property, (ii) made in $1,000,000 increments (i.e., rounded
upward to the nearest $1,000,000) and (iii) accompanied by any additional
amounts required to be paid hereunder (e.g., “LIBOR breakage costs” (which
term, for all purposes of this Agreement, includes any One-Month LIBO Rate
Price Adjustment) termination payments under any Swap Contract and payment of
the applicable Prepayment Premium).
	 
	 	(iii)	 	Prepayment Premiums — Key Properties.
Notwithstanding anything to the contrary contained herein, Borrower shall not
be entitled to any Property Releases of any Key Properties for any reason,
except that Borrower may obtain a release of a Key Property after the
Prepayment Lockout Expiration Date in connection with a refinancing or sale of
such Key Property, provided that all indebtedness outstanding under the Loan is
repaid in full and Borrower pays the applicable Prepayment Premium in
connection with such release. In the event that any Key Property is refinanced
or sold to a party unrelated to Borrower or Guarantor or any of their
constituent entities, the entire outstanding principal balance of the Loan,
accrued but unpaid interest and all other sums outstanding under the Loan
Documents shall be due and payable in full, the Swap Contract shall be
terminated, and Borrower shall pay a Prepayment Premium as set forth in this
clause (iii); provided, further, Borrower may request the swap rate provider




21









 






	 	 	 	or counterparty under any Swap Contract (a “Swap Rate Provider”) to transfer
the Swap Contract to another loan, but any such transfer shall be subject to
the Swap Rate Provider’s consent in the Swap Rate Provider’s sole and
absolute discretion. If a prepayment of the Loan occurs on account of a
refinancing, sale or other disposition of a Key Property, then (i) the
Prepayment Premium for the period after the Prepayment Lockout Expiration
Date through and including July 31, 2014 shall be eight-tenths of one
percent (.8%) of the entire outstanding principal balance of the Loan, (ii)
the Prepayment Premium for the period from and after August 1, 2014 through
and including July 31, 2015 shall be four-tenths of one percent (.4%) of the
entire outstanding principal balance of the Loan and (iii) the Prepayment
Premium for any period from and after August 1, 2015 shall be two-tenths of
one percent (.2%) of the entire outstanding principal balance of the Loan.
Notwithstanding anything to the contrary contained in this Agreement, no
Prepayment Premium shall be due and owing if the Loan is paid in full during
the ninety (90) day period immediately preceding the Maturity Date.
	 
	 	(iv)	 	Prepayment. Borrower shall give not less than three
(3) Business Days’ prior written notice to Administrative Agent, not later than
11:00 A.M. (San Francisco, California time) on the date given, of Borrower’s
intention to prepay all or any portion of the Loan. Any notice of prepayment
given to Administrative Agent under this Section 2.7 shall specify the date of
prepayment and the principal amount of the prepayment. In the event of a
prepayment of any One-Month LIBO Rate Portion, Borrower shall concurrently pay
any One-Month LIBO Rate Price Adjustment payable in respect thereof. Any
prepayment of principal shall be accompanied by any amounts necessary to
compensate or reimburse Administrative Agent and Lenders for (1) any LIBOR
breakage costs, (2) any termination payments under any Swap Contract and (3)
payment of the applicable Prepayment Premium set forth herein. Amounts prepaid
shall be applied first to any portion of the Loan that is not subject to a Swap
Contract, if any. Any principal balance reduction shall reduce Lenders’
Commitment by a like amount, and any such amounts repaid by Borrower may not be
reborrowed.
	 
	 	(v)	 	No Premium Required. Notwithstanding anything to the
contrary herein, no Prepayment Premium shall be due or payable in connection
with the payment of any insurance proceeds or condemnation awards applied
against the principal outstanding under the Loan in accordance with the Loan
Documents.




2.8 COLLATERAL POOL; REMARGIN RIGHT.





     (a) Collateral Pool. In order for a Property to be included in the Collateral Pool, (i)
a Property must be wholly-owned in fee simple (which ownership may include condominium
ownership interests created in accordance with this Agreement) by a Borrower or Non-Borrower
Mortgagor (with the beneficial interests being 100% owned by Borrower), and no Property
shall be a ground lease, (ii) no subordinate debt shall be allowed on any Property, (iii) no
Property shall have any restrictions on the Borrower’s ability to sell or encumber such
Property (except for restrictions in the Loan Documents or as may be shown in the Permitted
Liens) and (iv) Administrative Agent shall have received a current environmental and
property condition report for such Property satisfactory to Administrative Agent in all
respects. No Properties may be added to the Collateral Pool after the Effective Date.
After the Effective Date, the Debt Yield for the Collateral Pool shall be tested on a
quarterly basis, using a Determination Date as of the end of each calendar quarter. In the
event the Debt Yield as of the end of any calendar quarter is less than nine percent (9.0%)
or the Loan-to-Value Ratio (based on the then outstanding principal of the Loan) exceeds
sixty-five percent (65%), a Cash Trap Event Period shall be deemed to have occurred as
provided in Section 10.16(b) of this Agreement.




     (b) Remargin Right. Administrative Agent shall have the right to obtain new or updated
Appraisals on all Property which is Collateral as of the Remargin Date. In the event that



22









 






such Appraisals reflect that the Loan-to-Value Ratio (based on the then outstanding
principal of the Loan) for all Property then in the Collateral Pool exceeds sixty-five
percent (65%), then Borrower shall, within thirty (30) Business Days after written notice
from Administrative Agent, make a principal payment to Administrative Agent, for the benefit
of the Lenders, in an amount necessary to reduce such Loan-to-Value Ratio to sixty-five
percent (65%), and Borrower’s failure to make such principal payment within such thirty (30)
Business Day period shall be an immediate Default under this Agreement. Any prepayment of
principal made in connection with the foregoing remargin provision shall be without any
Prepayment Premium or other penalty, except for (i) any LIBOR breakage costs incurred by
Lenders and (2) any termination payments under any Swap Contract. Any principal payment
made pursuant to this paragraph shall be applied first to any portion of the Loan that is
not subject to a Swap Contract, if any.



     2.9 FULL REPAYMENT AND RECONVEYANCE. Upon repayment and termination of all Secured Obligations
in full, Administrative Agent shall issue a full reconveyance of the Property from the Lien of the
Mortgage; provided, however, that all of the following conditions shall be
satisfied at the time of, and with respect to, such reconveyance: (a) Administrative Agent, for
the benefit of Lenders, shall have received all escrow, closing and recording costs, the costs of
preparing and delivering such reconveyance and any sums then due and payable under the Loan
Documents; and (b) Administrative Agent shall have received a written release satisfactory to
Administrative Agent of any set aside letter, letter of credit or other form of undertaking which
Administrative Agent or any Lender has issued to any surety, Governmental Authority or any other
party in connection with the Loan and/or the Property. Lenders’ obligations to make further
Advances under the Loan shall terminate as to any portion of the Loan undisbursed as of the date of
issuance of such full release or reconveyance, and any commitment of Lenders to lend any
undisbursed portion of the Loan shall be canceled.



     2.10 LENDERS’ ACCOUNTING. Administrative Agent shall maintain a loan account (the “Loan
Account”) on its books in which shall be recorded (a) the names and addresses and the Pro Rata
Shares of the commitment of each of the Lenders, and principal amount of the Loan owing to each
Lender from time to time, and (b) all repayments of principal and payments of accrued interest, as
well as payments of fees required to be paid pursuant to this Agreement. All entries in the Loan
Account shall be made in accordance with Administrative Agent’s customary accounting practices as
in effect from time to time. Monthly or at such other interval as is customary with Administrative
Agent’s practice, Administrative Agent will render a statement of the Loan Account to Borrower and
will deliver a copy thereof to each Lender. Each such statement shall be deemed final, binding and
conclusive upon Borrower in all respects as to all matters reflected therein (absent manifest
error).



     2.11 PROPERTY RELEASES. From time to time after the Prepayment Lockout Expiration Date (or
earlier in connection with a Qualified Redevelopment Release) but prior to the Maturity Date,
Borrower may request, upon not less than thirty (30) days prior written notice to the
Administrative Agent or such shorter period as may be acceptable to Administrative Agent, that any
Non-Key Property or Redevelopment Property (but not any Key Property) be released from the
Collateral Pool and from the Liens created by the Mortgage and other Loan Documents, which release
(a “Property Release”) shall be effected by a written release executed by Administrative Agent when
all of the following conditions are satisfied as of the date of such Property Release:




	 	(a)	 	No Default or Potential Default exists under the Loan Documents, or will exist
immediately after giving effect to such Property Release;
	 
	 	(b)	 	Such Property Release shall be in connection with the refinancing of such
Non-Key Property or Redevelopment Property, as the case may be, or the sale of such
Non-Key Property or such Redevelopment Property, as the case may be, to a Person that
is not an Affiliate of any Borrower or Guarantor, or such Non-Key Property or
Redevelopment Property shall be contributed to a joint venture or other entity
Controlled by Borrower or Guarantor for the purpose of the redevelopment of such
Non-Key Property or Redevelopment Property, as the case may be;




23









 






	 	(c)	 	Administrative Agent shall have received, for the account of the Lenders, the
Release Price for the Property to be released, which Release Price shall be applied as
a reduction of the outstanding principal balance of the Loan;
	 
	 	(d)	 	Administrative Agent shall have received any and all sums then due and owing
under the Loan Documents in connection with such Property Release, including the
applicable Prepayment Premium due on account of such Property Release, and all closing
and recording costs, the costs of preparing and delivering such Property Release and
the cost of any title insurance endorsements required by Administrative Agent,
including, without limitation, an endorsement pursuant to applicable title insurance
rules and regulations;
	 
	 	(e)	 	If the Non-Key Property or Redevelopment Property to be released is only a
portion of larger parcel or tract of land, then: (i) the Non-Key Property or
Redevelopment Property to be released and the portion of the Property which shall
remain encumbered by the applicable Mortgage shall each be legal parcels lawfully
created in compliance with all subdivision laws and ordinances and, at Borrower’s sole
cost, and Administrative Agent shall have received any title insurance endorsements or
other evidence to that effect requested by Administrative Agent, in form satisfactory
to Administrative Agent; (ii) the legal descriptions of the portion of the Property
being released and the portion of the Property remaining encumbered shall be acceptable
to Administrative Agent in its sole discretion and (iii) the portion of the Property
which shall remain encumbered by the applicable Mortgage shall have the benefit of all
utilities, easements, public and/or private streets, covenants, conditions and
restrictions as may be necessary, in Administrative Agent’s judgment, for the
development, improvement and operation thereof; provided, that Administrative Agent
shall exercise such judgment in a reasonable manner so long as any such release shall
not result in a material adverse effect on the remaining portion of the Property not so
released.
	 
	 	(f)	 	If the Non-Key Property or Redevelopment Property to be released is only a
portion of larger parcel or tract of land for real estate tax purposes (i.e., the
Non-Key Property or Redevelopment Property being released is only a portion of a larger
tax parcel), Administrative Agent shall have received evidence satisfactory to
Administrative Agent that any tax or assessment which constitutes a lien against the
Non-Key Property or Redevelopment Property, as the case may be, has been properly
allocated between the Non-Key Property or Redevelopment Property to be released and the
portion of the Property which shall remain encumbered by the Mortgage;
	 
	 	(g)	 	No Property Release shall result in any of the remaining Property in the
Collateral Pool after the Property Release not (i) having sufficient access to a public
right-of-way for ingress and egress to such remaining Property or (ii) being in
non-compliance with any Requirements of Law as a result of such Property Release,
including without limitation, any parking requirements applicable to the Property
remaining in the Collateral Pool.
	 
	 	(h)	 	Neither the acceptance of any payment of a Release Price nor the issuance of
any Property Release by Administrative Agent shall affect Borrower’s obligation to
repay all amounts owing under the Loan Documents or under the Lien of the Mortgage on
the remainder of the Property which is not released; provided, however, if a Property
Release obtained in accordance with this Agreement results in one of the entities other
than Parent comprising Borrower no longer having any interest in the Collateral Pool,
Administrative Agent and Lenders shall take such actions as may reasonably be required
to release such entity from any liability accruing under the Loan Documents from and
after the date of such release.




24









 











ARTICLE 3. DISBURSEMENT



     3.1 CONDITIONS PRECEDENT. Administrative Agent’s and Lenders’ obligation to make the Initial
Advance or any disbursements or take any other action under the Loan Documents shall be subject at
all times to satisfaction of each of the following conditions precedent (in addition to those set
forth in Exhibit C and in any other applicable provision hereof):





     (a) There shall exist no Default or Potential Default, as defined in this Agreement, or
Default as defined in any of the other Loan Documents or in the Other Related Documents;




     (b) Administrative Agent shall have received all Loan Documents, Other Related Documents,
other documents, instruments, policies, and forms of evidence or other materials requested
by Administrative Agent or any Lender under the terms of this Agreement or any of the other
Loan Documents;




     (c) The Mortgage shall be a valid Lien upon the Property and be prior and superior to all
other Liens thereon except the Permitted Liens;




     (d) Administrative Agent shall have received the Title Policy covering the Property and
surveys of the Property in form and substance acceptable to Administrative Agent;




     (e) With respect to the Initial Advance, Administrative Agent shall have received tenant
estoppel letters and subordination, nondisturbance and attornment agreements from such
tenants of the Property as may be required by Administrative Agent, which shall be in form
and content satisfactory to Administrative Agent;




     (f) Administrative Agent shall have received confirmation that Borrower has entered into an
interest rate swap transaction in the notional amount equal to sixty-five percent (65%) of
the Initial Facility Amount, with an expiration date equal to or greater than the Maturity
Date, for the purpose of hedging its interest rate risk in respect of the Notes. If Wells
Fargo is the counterparty to the interest rate swap transaction, Administrative Agent shall
have received confirmation that Borrower has executed the ISDA Master Agreement, the ISDA
Schedule and a trade confirmation. If Borrower entered into an interest rate swap
transaction with a counterparty other than Administrative Agent, such counterparty shall
have a Standard & Poor’s rating of AA and a Moody’s rating of Aa (or as otherwise approved
by Administrative Agent); and




     (g) Administrative Agent shall have received from each Lender such Lender’s Pro Rata Share
of such disbursement.



     3.2 CONDITIONS PRECEDENT TO ADVANCES OF UNFUNDED INITIAL FACILITY. Administrative Agent’s and
Lenders’ obligation to make any disbursements of the Unfunded Initial Facility shall be subject to
satisfaction of each of the following conditions precedent at the time of such disbursement:




     (a) All of the conditions set forth in Section 3.1 of this Agreement shall be
satisfied to Administrative Agent’s satisfaction as of the date of the Advance from the
Unfunded Initial Facility;




     (b) Administrative Agent and Lenders shall not be obligated to fund more than
one (1) Advance from the Unfunded Initial Facility each month;




     (c) All representations and warranties of Borrower in this Agreement and the
other Loan Documents and Other Related Documents shall remain true and correct in all
material respects as of the date of such Advance, with the same effect as though the
representations and warranties had been made on and as of such date except to the extent
that such representations and warranties specifically refer to an earlier date;




25











 






     (d) Borrower shall have satisfied all conditions to the Advance set forth in
the Disbursement Plan attached hereto as Exhibit C, including without limitation,
the delivery to Administrative Agent, in form and substance satisfactory to Administrative
Agent, bills or invoices, lien waivers and releases and all other matters required by
Exhibit C, for all hard costs incurred with respect to any Advance to pay for the
cost of construction of Additional Improvements, including without limitation, any Tenant
Improvements or other hard costs which are to be paid from such Advance, if any;




     (e) With respect to any Advance for Tenant Improvements and Leasing
Commissions incurred by Borrower, such Advance shall only be made in connection with an
Approved Lease or, subject to the prior written approval of Administrative Agent, a License
Agreement;




     (f) Borrower shall have delivered to Administrative Agent a down date
endorsement to the Title Policy, showing that the Property is free of all Liens other than
those shown already disclosed in such Title Policy or which are approved by Administrative
Agent or otherwise permitted under this Agreement; and




     (g) Any Advances must be disbursed no later than the Remargin Date, and in
the event that Borrower does not qualify for an Advance (whether from the Unfunded Initial
Facility or the Earnout Holdback) by the Remargin Date, then Lenders’ Commitment to fund any
remaining Advances (including any unfunded portion of the Unfunded Initial Facility and the
Earnout Holdback) shall terminate and be of no further force and effect.



     3.3 CONDITIONS PRECEDENT TO ADVANCES OF EARNOUT HOLDBACK. Administrative Agent’s and Lenders’
obligation to make any disbursements of the Earnout Holdback shall be subject to satisfaction of
each of the following conditions precedent at the time of such disbursement:




     (a) All of the conditions set forth in Section 3.1 and Section 3.2 of this Agreement shall
be satisfied to Administrative Agent’s satisfaction as of the date of the Advance from the
Earnout Holdback; provided, however, if such Advance is to reimburse Borrower for capital
expenditures incurred by Borrower from and after November 9, 2010 in connection with the
development and/or improvement of the Property, Borrower shall not be required to satisfy
the condition set forth in Section 3.2(d) other than to provide satisfactory evidence to
Administrative Agent of the amount and payment of such capital expenditures previously
incurred by Borrower.




     (b) The construction of Ward Village Retail Shops shall have been completed, including the
payment of the cost of all Tenant Improvements and Leasing Commissions then incurred with
respect to any Approved Leases for Ward Village Retail Shops then in effect;




     (c) Administrative Agent and Lenders shall not be obligated to fund more than one (1)
Advance from the Earnout Holdback each month;




     (d) The Loan-to-Value Ratio shall then be not more than sixty-five percent (65%) based on
the most recent Appraisals obtained by Administrative Agent, after giving effect to the
requested Advance; and




     (e) With respect to any Advances of the Earnout Holdback, the following additional
conditions shall be satisfied:




	 	(1)	 	The amount of the Earnout Holdback available for disbursement
to Borrower shall be tested on a quarterly basis (i.e., using a Determination
Date as of the end of each calendar quarter) and on the date of each
disbursement from the Earnout Holdback, based on the financial information for
the immediately preceding calendar month (and Borrower shall provide to
Administrative Agent the Operating Statements in determining In Place NOI in
connection with such




26









 






	 	 	 	request for disbursement). Further, in computing the amount of the Earnout
Holdback available for disbursement, In Place NOI shall be adjusted to
exclude any Property that is no longer in the Collateral Pool as of the date
of the requested disbursement from the Earnout Holdback. The amount of the
Earnout Holdback available for disbursement as of any Determination Date
shall be equal to the Maximum Loan Amount calculated on such Determination
Date, minus the sum of (i) the Initial Facility Amount plus (ii) all prior
Advances from the Earnout Holdback as of such Determination Date.
	 
	 	(2)	 	In the event that Borrower is eligible for a disbursement from
the Earnout Holdback, such disbursements shall only be available in increments
of $500,000, and may be drawn on a monthly basis (i.e., if Borrower qualifies
for a disbursement from the Earnout Holdback, it may have such amount disbursed
on a monthly basis, so long as each disbursement is not less than $500,000 and
is in a multiple of $500,000); provided, however, the last disbursement may be
in an amount less than $500,000.






In addition to the foregoing, and notwithstanding anything to the contrary contained in this
Agreement, an amount equal to the WVRS Holdback shall only be available for disbursement to
Borrower from the Earnout Holdback to pay for Tenant Improvements and Leasing Commissions
incurred in connection with or pursuant to Approved Leases covering portions of the Ward
Village Retail Shops. Notwithstanding anything to the contrary contained in this Agreement,
in the event that the Ward Village Retail Shops is fully leased and all Tenant Improvements
and Leasing Commissions incurred in connection therewith have been paid in full, then the
WVRS Holdback shall be terminated and any funds which are subject to the WVRS Holdback at
such time shall be available for disbursement to Borrower for purposes other than to pay or
reimburse Borrower for Tenant Improvements and Leasing Commissions incurred with respect to
the Ward Village Retail Shops, subject to the satisfaction of the other terms and conditions
to Advances of the Earnout Holdback set forth in this Agreement.



     3.4 ACCOUNT, PLEDGE AND ASSIGNMENT, AND DISBURSEMENT AUTHORIZATION. The proceeds of the Loan,
when qualified for disbursement, shall be deposited into the Operating Account or otherwise
disbursed to or for the benefit or account of Borrower under the terms of this Agreement;
provided, however, that any direct disbursements from the Loan which are made by
means of wire transfer shall be subject to the provisions of any funds transfer agreement which is
identified in Exhibit B hereto. Disbursements hereunder may be made by Administrative
Agent upon the written request of any Person who has been authorized by Borrower to request such
disbursements until such time as written notice of Borrower’s revocation of such authority is
received by Administrative Agent at the address shown in Exhibit C. As additional security
for Borrower’s performance under the Loan Documents, Borrower hereby irrevocably pledges and
assigns to Administrative Agent, for the benefit of Lenders, all monies at any time deposited in
the Accounts.



     3.5 LOAN DISBURSEMENTS. Subject to the conditions set forth in Sections 3.1, 3.2 and 3.3, the
proceeds of the Loan shall be disbursed in accordance with the terms and conditions of Exhibit
C. All disbursements shall be held by Borrower in trust and applied by Borrower solely for the
purposes for which the funds have been disbursed. Administrative Agent and Lenders have no
obligation to monitor or determine Borrower’s use or application of the disbursements.



     3.6 FUNDS TRANSFER DISBURSEMENTS. Borrower hereby authorizes Administrative Agent, to disburse
the proceeds of any Loans made by Lenders or any of their Affiliates pursuant to the Loan Documents
as requested by an authorized representative of the Borrower to any of the accounts designated in
the Transfer Authorizer Designation form. Borrower agrees to be bound by any transfer request: (i)
authorized or transmitted by Borrower; or (ii) made in Borrower’s name and accepted by
Administrative Agent in good faith and in compliance with these transfer instructions, even if not
properly authorized by Borrower. Borrower further agrees and acknowledges that Administrative
Agent may rely solely on any bank routing number or identifying bank account number or name
provided by Borrower to



27









 




effect a wire of funds transfer even if the information provided by Borrower identifies a different
bank or account holder than named by the Borrower. Administrative Agent is not obligated or
required in any way to take any actions to detect errors in information provided by Borrower. If
Administrative Agent takes any actions in an attempt to detect errors in the transmission or
content of transfer requests or takes any actions in an attempt to detect unauthorized funds
transfer requests, Borrower agrees that no matter how many times Administrative Agent takes these
actions Administrative Agent will not in any situation be liable for failing to take or correctly
perform these actions in the future and such actions shall not become any part of the transfer
disbursement procedures authorized under this provision, the Loan Documents, or any agreement
between Administrative Agent and Borrower. Borrower agrees to notify Administrative Agent of any
errors in the transfer of any funds or of any unauthorized or improperly authorized transfer
requests within fourteen (14) days after Administrative Agent’s confirmation to Borrower of such
transfer. Administrative Agent will, in its sole discretion, determine the funds transfer system
and the means by which each transfer will be made. Administrative Agent, may delay or refuse to
accept a funds transfer request if the transfer would: (a) violate the terms of this
authorization, (b) require use of a bank unacceptable to Administrative Agent or any Lender or
prohibited by government authority; (iii) cause Administrative Agent or any Lender to violate any
Federal Reserve or other regulatory risk control program or guideline; or (iv) otherwise cause
Administrative Agent or any Lender to violate any applicable law or regulation. Neither
Administrative Agent nor any Lender shall be liable to Borrower or any other parties for: (i)
errors, acts or failures to act of others, including other entities, banks, communications carriers
or clearinghouses, through which Borrower’s transfers may be made or information received or
transmitted, and no such entity shall be deemed an agent of Administrative Agent or any Lender,
(ii) any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power
surges or failures, acts of government, labor disputes, failures in communications networks, legal
constraints or other events beyond Administrative Agent or any Lender’s control, or (iii) any
special, consequential, indirect or punitive damages, whether or not (a) any claim for these
damages is based on tort or contract or (b) Administrative Agent or any Lender or Borrower knew or
should have known the likelihood of these damages in any situation. Neither Administrative Agent
nor any Lender makes any representations or warranties other than those expressly made in this
Agreement.




ARTICLE 4. IMPOUNDS




     4.1 TAX IMPOUND. Following the occurrence of a Default, at Administrative Agent’s option and
election, Borrower shall deposit into the Tax Impound Account (collectively, “Tax
Impound”), on each Due Date, an amount estimated from time to time by Administrative Agent, in
its reasonable discretion, to be sufficient to pay the taxes, assessments and other similar ad
valorem liabilities payable by Borrower under the Loan Documents with respect to the Property
(collectively, “Taxes”) at least thirty (30) days prior to each date on which Taxes become
delinquent (“Delinquency Date”). Administrative Agent shall provide Borrower with the
initial estimated monthly amount to be deposited by Borrower for Taxes on each Due Date, and
Borrower shall thereafter deposit such amount with Administrative Agent on each Due Date in
addition to all other amounts owed to Administrative Agent and Lenders on the Due Date. If
Administrative Agent determines in good faith at any time that the Tax Impound will not be
sufficient to pay any Taxes at least thirty (30) days prior to the Delinquency Date, Administrative
Agent shall notify Borrower of such determination and Borrower shall deposit with Administrative
Agent the amount of such deficiency not more than ten (10) Business Days after Borrower’s receipt
of such notice, and shall thereafter deposit with Administrative Agent on each Due Date the
increased amount as determined in good faith by Administrative Agent necessary to pay the Taxes at
least thirty (30) days prior to the Delinquency Date; provided, however, if Borrower receives
notice of any such deficiency less than thirty (30) days prior to the Delinquency Date, Borrower
shall deposit the amount of such deficiency with Administrative Agent not more than three (3)
Business Days after Borrower’s receipt of such notice, but in no event later than the Business Day
immediately preceding the Delinquency Date. So long as no Default exists, Administrative Agent
shall, upon the request of Borrower, disburse to Borrower the Tax Impound funds for the payment of
the Taxes which amount shall not exceed the amount due as of the Delinquency Date. Until such time
as the indebtedness under the Loan is paid in full, Borrower shall deliver to Administrative Agent,
as soon as available, a photocopy of all future tax statements received by Borrower from the tax
authority.



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     4.2 INSURANCE IMPOUND. Following the occurrence of a Default, at Administrative Agent’s option
and election, Borrower shall deposit into the Insurance Impound Account (collectively,
“Insurance Impound”), on each Due Date, an amount estimated from time to time by
Administrative Agent, in its reasonable discretion, to be sufficient to pay the premiums for
insurance required to be maintained by Borrower hereunder (“Insurance Premiums”) at least
thirty (30) days prior to the date on which the current such insurance policies expire
(“Insurance Expiration Date”). Administrative Agent shall provide Borrower with the
initial estimated monthly amount to be deposited by Borrower for insurance premiums on each Due
Date, and Borrower shall thereafter deposit such amount with Administrative Agent on each Due Date
in addition to all other amounts owed to Administrative Agent and Lenders on the Due Date. If
Administrative Agent determines in good faith at any time that the Insurance Impound will not be
sufficient to pay the Insurance Premiums at least thirty (30) days prior to the Insurance
Expiration Date, Administrative Agent shall notify Borrower of such determination and Borrower
shall deposit with Administrative Agent the amount of such deficiency not more than ten (10)
Business Days after Borrower’s receipt of such notice, and shall thereafter deposit with
Administrative Agent on each Due Date the increased amount as determined in good faith by
Administrative Agent necessary to pay the insurance premiums at least thirty (30) days prior to the
Insurance Expiration Date; provided, however, if Borrower receives notice of any such deficiency
less than thirty (30) days prior to the Insurance Expiration Date, Borrower shall deposit the
amount of such deficiency with Administrative Agent not more than three (3) Business Days after
Borrower’s receipt of such notice, but in no event later than the day immediately preceding the
Insurance Expiration Date. So long as no Default exists, Administrative Agent shall, upon the
request of Borrower, disburse to Borrower the Insurance Impound funds for the payment of the
Insurance Premiums which amount shall not exceed the amount due as of the Insurance Expiration
Date. Until such time as the indebtedness under the Loan is paid in full, Borrower shall deliver
to Administrative Agent, as soon as available, a photocopy of all future insurance statements
received by Borrower from insurance agent.



     4.3 GENERAL. Borrower shall have no right or ability to affect withdrawals from the Restricted
Account or the subaccounts created thereunder, except in accordance with the provisions of this
Agreement, and shall have no right to exercise dominion or control over the Restricted Account or
the subaccounts created thereunder. All deposits required to be made by Borrower under this
Article, are herein collectively called “Impounds”. For so long as any of the Impounds
required under this Article are in effect and if Administrative Agent reasonably determines that
any of the Impounds were not estimated properly and a deficiency exists, Administrative Agent shall
notify Borrower of such deficiency and Borrower shall deposit or cause tenant to deposit with
Administrative Agent the amount of such deficiency not more than ten (10) Business Days after
Borrower’s receipt of such notice. Administrative Agent shall have the right to enter upon the
Property at all reasonable times, including without limitation, prior to any disbursement of
Impounds, to inspect any work in process and/or completed for which Impounds are now or hereafter
required, but Administrative Agent shall not be obligated to supervise or inspect any such work or
to inform Borrower or any third party regarding any aspect of any such work. Borrower shall pay to
Administrative Agent all reasonable fees, costs and expenses charged, paid or incurred by
Administrative Agent from time to time in connection with any request of Borrower for a
disbursement of funds from the Impounds. Borrower authorizes Administrative Agent to disburse
directly to Administrative Agent, from the Impounds or from funds to be disbursed to Borrower from
the Impounds, such sums as may be necessary, at any time and from time to time, to pay all such
fees, costs and expenses.



     4.4 GRANT OF SECURITY INTEREST IN IMPOUNDS, ACCOUNTS; APPLICATION OF FUNDS. As security for
payment of the Loan and the performance by Borrower of all other terms, conditions and provisions
of the Loan Documents, Borrower hereby pledges and assigns to Administrative Agent, and grants to
Administrative Agent, for the benefit of Lenders, a security interest in, all Borrower’s right,
title and interest in and to all Impounds, the Restricted Account and the subaccounts created
thereunder, and all other Accounts. Borrower shall not, without obtaining the prior written
consent of the Requisite Lenders, further pledge, assign or grant any security interest in any of
the Impounds, the Restricted Account or the subaccounts created thereunder, or all other Accounts,
or permit any lien to attach thereto, or any levy to be made thereon, or any UCC Financing
Statements to be filed thereon, except those naming Administrative Agent as the secured party, to
be filed with respect thereto. This Agreement is, among other things, intended by the parties to
be a security agreement for purposes



29









 




of the UCC. Upon the occurrence and during the continuance of a Default, Administrative Agent may
apply all or any part of the, the Restricted Account and the subaccounts created thereunder, and
all other Accounts against the amounts outstanding under the Loan in any order and in any manner as
Administrative Agent shall elect in Administrative Agent’s sole discretion without seeking the
appointment of a receiver and without adversely affecting the rights of Administrative Agent to
foreclose the liens and security interests securing the Loan or exercise its other rights under the
Loan Documents. The Impounds and Account Funds shall not constitute trust funds and may be
commingled with other monies held by Administrative Agent. All interest which accrues on the
foregoing Impounds and Account Funds shall be at a rate established by Administrative Agent, which
may or may not be the highest rate then available, shall accrue for the benefit of Borrower and
shall be taxable to Borrower and shall be added to and disbursed in the same manner and under the
same conditions as the principal sum on which said interest accrued. Upon repayment in full of
Borrower’s obligations under the Loan Documents, all remaining Impounds and Account Funds, if any,
shall be disbursed to Borrower within ten (10) Business Days.




ARTICLE 5. CONSTRUCTION




     5.1 CONSTRUCTION OF ADDITIONAL IMPROVEMENTS. Borrower shall diligently and without delay
pursue construction of the Additional Improvements in a workmanlike manner in accordance with any
plans and specifications therefor, and in accordance with all Requirements of Law, building
restrictions, recorded covenants and restrictions, and requirements of all Governmental Authorities
having jurisdiction over the Property. Borrower shall, upon Administrative Agent’s request,
execute and deliver to Administrative Agent a copy of any plans and specifications for any
Additional Improvements and an assignment of Borrower’s rights under any Construction Agreement to
Administrative Agent, for the benefit of Lenders as security for Borrower’s obligations under this
Agreement and the other Loan Documents, and with respect to any Construction Agreement providing
for payments in excess of $1,000,000 in the aggregate, shall cause the Contractor to consent to any
such assignment. Borrower shall be solely responsible for all aspects of Borrower’s business and
conduct in connection with the Property, including, without limitation, for the quality and
suitability of any such plans and specifications and their compliance with all Requirements of Law,
the supervision of the work of construction, the qualifications, financial condition and
performance of all architects, engineers, contractors, material suppliers, consultants and property
managers, and the accuracy of all applications for payment and the proper application of all
disbursements. Neither Administrative Agent nor any Lender is obligated to supervise, inspect or
inform Borrower or any third party of any aspect of the construction of the Additional Improvements
or any other matter referred to above.



     5.2 CONTRACTOR/CONSTRUCTION INFORMATION. Within ten (10) days of Administrative Agent’s
written request, Borrower shall deliver to Administrative Agent from time to time in a form
acceptable to Administrative Agent: (a) copies of any Construction Contract and any architect’s
or engineer’s agreements then in effect, including any changes thereto; (b) a cost breakdown of the
projected total cost of constructing any Additional Improvements then in progress, and that
portion, if any, of each cost item which has been incurred; and (c) a construction progress
Schedule detailing the progress of construction and the projected sequencing and completion time
for uncompleted work, all as of the date of such schedule.



Borrower agrees that Administrative Agent may disapprove any contractor, subcontractor or material
supplier which, in Administrative Agent’s good faith determination, is deemed financially or
otherwise unqualified; provided, however, that the absence of any such disapproval
shall not constitute a warranty or representation of qualification by Administrative Agent or any
Lender. Administrative Agent or any Lender may contact any such contractor, subcontractor or
material supplier to discuss the course of construction.



     5.3 PROHIBITED CONTRACTS. Without Administrative Agent’s prior written consent, Borrower shall
not contract for any materials, furnishings, equipment, fixtures or other parts or components of
the Additional Improvements, if any third party shall retain any ownership interest (other



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than Lien rights created by operation of law) in such items after their delivery to the Property.
Borrower shall have five (5) days to effect the removal of any such retained interest.



     5.4 LIENS AND STOP NOTICES. If a claim of Lien is recorded which affects the Property or a
bonded stop notice is served upon Administrative Agent or any Lender, Borrower shall, subject to
Borrower’s right to contest mechanic’s and materialmen’s liens in good faith in accordance with
Section 15.8 hereof, within thirty (30) calendar days after the date Borrower receives notice of
such lien or of such recording or service or within twenty (20) calendar days of Administrative
Agent’s demand, whichever occurs first: (a) pay and discharge the claim of Lien or bonded stop
notice; (b) effect the release thereof by recording or delivering to Administrative Agent a surety
bond in sufficient form and amount; or (c) provide Administrative Agent with other assurances which
Administrative Agent deems, in its sole discretion, to be satisfactory for the payment of such
claim of Lien or bonded stop notice and for the full and continuous protection of Administrative
Agent and Lenders from the effect of such Lien or bonded stop notice.



     5.5 ASSESSMENTS AND COMMUNITY FACILITIES DISTRICTS. Without Administrative Agent’s prior
written consent, Borrower shall not cause or suffer to become effective or otherwise consent to the
formation of any assessment district or community facilities district which includes all or any
part of the Property. In addition, Borrower not, without Administrative Agent’s prior written
consent in Administrative Agent’s sole discretion, cause or otherwise consent to the levying of
special taxes or assessments against the Property by any such assessment district or community
facilities district.



     5.6 DELAY. Borrower shall promptly notify Administrative Agent in writing of any event causing
material delay or interruption of construction, or the timely completion of construction of any
Additional Improvements. The notice shall specify the particular work delayed, and the cause and
period of each delay.



     5.7 INSPECTIONS. Administrative Agent shall have the right to engage an Independent Inspecting
Architect in connection with the construction of any Additional Improvements, and Administrative
Agent and the Independent Inspecting Architect shall have the right to enter upon the Property at
all reasonable times at Borrower’s cost and expense to inspect the Property and the construction
work to verify information disclosed or required pursuant to this Agreement. Any such inspection
or review of the Additional Improvements by Administrative Agent or Independent Inspecting
Architect is solely to determine whether Borrower is properly discharging its obligations under the
Loan Documents and may not be relied upon by Borrower or by any third party as a representation or
warranty of compliance with this Agreement or any other agreement. Neither Administrative Agent,
Independent Inspecting Architect nor any Lender owe a duty of care to Borrower or any third party
to protect against, or to inform Borrower or any third party of, any negligent, faulty, inadequate
or defective design or construction of the Additional Improvements as determined by Administrative
Agent, the Independent Inspecting Architect or any Lender.



     5.8 SURVEYS. Upon Administrative Agent’s written request, Borrower shall promptly deliver to
Administrative Agent, upon Completion of the Additional Improvements, an as-built survey acceptable
to a title insurer for purposes of issuing an ALTA policy of title insurance. All such surveys
shall be performed and certified by a licensed engineer or surveyor acceptable to the title
insurer.



ARTICLE 6. INSURANCE



Borrower shall, while any obligation of Borrower or any Guarantor under any of the Loan Documents
or Other Related Documents remains outstanding, maintain at Borrower’s sole expense, with licensed
insurers approved by Administrative Agent, the following policies of insurance in form and
substance satisfactory to Administrative Agent. Capitalized terms used in this Article shall have
the same meaning as such terms are commonly and presently defined in the insurance industry.




     6.1 TITLE INSURANCE. A Title Policy, together with any endorsements which Administrative Agent
may require, insuring Administrative Agent, for the benefit of Lenders, in the stated principal
amount of the Loan, of the validity and the priority of the Lien of the Mortgage upon the Property,



31









 





subject only to matters approved by Administrative Agent in writing. During the term of the Loan,
Borrower shall deliver to Administrative Agent, within ten (10) days of Administrative Agent’s
written request, such other endorsements to the Title Policy as Administrative Agent may reasonably
require with respect to the Property and which are available under applicable title insurance rules
and regulations, including any down date endorsements to the Title Policy with respect to the
funding of a disbursement from the Earnout Holdback as Administrative Agent may require.



     6.2 PROPERTY INSURANCE. An all Risk/Special Form Completed Value (Non-Reporting Form) Hazard
Insurance policy, including without limitation, theft coverage and such other coverages and
endorsements as Administrative Agent may require, insuring Administrative Agent, for the benefit of
Lenders against damage to the Property in an amount not less than 100% of the full replacement
cost. Such coverage should adequately insure any and all Collateral, whether such Collateral is
onsite, stored offsite or otherwise. Administrative Agent, for the benefit of Lenders, shall be
named on the policy as Mortgagee and named under a Lender’s Loss Payable Endorsement (form #438BFU
or equivalent).



     6.3 FLOOD HAZARD INSURANCE. If the Property is in a flood hazard zone, a policy of flood
insurance, as required by applicable governmental regulations, or as deemed necessary by
Administrative Agent, in an amount required by Administrative Agent, but in no event less than the
amount sufficient to meet the requirements of applicable law and governmental regulation.



     6.4 LIABILITY INSURANCE. A policy of Commercial General Liability insurance on an occurrence
basis, with coverages and limits as required by Administrative Agent, insuring against liability
for injury and/or death to any Person and/or damage to any property occurring on the Property.
During the period of any construction of any Additional Improvements, Borrower shall cause its
contractors and/or subcontractors to maintain in full force and effect liability insurance required
hereunder with respect to such contractor’s activities and work. Administrative Agent may require
that Borrower be named as an additional insured on any such policy. Whether Borrower employs a
general contractor or performs as owner-builder, Administrative Agent may require that coverage
include statutory workers’ compensation insurance.



     6.5 OTHER COVERAGE. Borrower shall provide to Administrative Agent evidence of such other
reasonable insurance in such reasonable amounts as Administrative Agent may from time to time
request against such other insurable hazards which at the time are commonly insured against for
property similar to the Property located in or around the region in which the Property is located.
Such coverage requirements may include but are not limited to coverage for earthquake, acts of
terrorism, mold, business income, delayed business income, rental loss, sink hole, soft costs,
tenant improvement or environmental.



     6.6 GENERAL. Borrower shall provide to Administrative Agent insurance certificates or other
evidence of coverage in form acceptable to Administrative Agent, with coverage amounts,
deductibles, limits and retentions as required by Administrative Agent. All insurance policies
shall provide that the coverage shall not be cancelable or materially changed without 10 days prior
written notice to Administrative Agent of any cancellation for nonpayment of premiums, and not less
than 30 days prior written notice to Administrative Agent of any other cancellation or any
modification (including a reduction in coverage). Administrative Agent, for the benefit of Lenders
shall be named under a Lender’s Loss Payable Endorsement (form #438BFU or equivalent) on all
property insurance policies which Borrower actually maintains with respect to the Property. All
insurance policies shall be issued and maintained by insurers approved to do business in the state
in which the Property is located and must have an A.M. Best Company financial rating and
policyholder surplus acceptable to Administrative Agent.



     6.7 COLLATERAL PROTECTION INSURANCE NOTICE. (A) BORROWER IS REQUIRED TO: (i) KEEP THE
PROPERTY INSURED AGAINST DAMAGE IN THE AMOUNT ADMINISTRATIVE AGENT SPECIFIES; (ii) PURCHASE THE
INSURANCE FROM AN INSURER THAT IS AUTHORIZED TO DO BUSINESS IN THE STATE OF HAWAII OR AN ELIGIBLE
SURPLUS LINES INSURER; AND (iii) NAME ADMINISTRATIVE AGENT AS THE PERSON TO BE PAID UNDER THE
POLICY (WITH RESPECT TO LOSS TO PROPERTY) IN THE EVENT OF A LOSS; (B) BORROWER MUST, IF REQUIRED BY
ADMINISTRATIVE AGENT, DELIVER TO ADMINISTRATIVE AGENT A COPY OF THE



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POLICY AND PROOF OF THE PAYMENT OF PREMIUMS THEREFOR; AND (C) IF BORROWER FAILS TO MEET ANY
REQUIREMENT LISTED IN CLAUSES (A) OR (B) HEREOF, ADMINISTRATIVE AGENT MAY OBTAIN COLLATERAL
PROTECTION INSURANCE ON BEHALF OF BORROWER AT BORROWER’S EXPENSE.



Borrower may obtain the insurance required hereunder from any insurance company of Borrower’s
choice that is acceptable to the Administrative Agent, which acceptance shall not be unreasonably
withheld. The non-acceptance of an insurer by the Administrative Agent shall not be deemed
unreasonable if it is based upon reasonable standards, uniformly applied, relating to the extent of
coverage required and the financial soundness and services of the insurer. Such standards shall
not discriminate against any particular insurer nor shall such standards call for rejection of an
insurance contract because the contract contains coverage in addition to that required under this
Agreement.




ARTICLE 7. REPRESENTATIONS AND WARRANTIES



As a material inducement to Administrative Agent’s and Lenders’ entry into this Agreement, Borrower
represents and warrants to Administrative Agent and each Lender as of the Effective Date and as of
the date of each Advance of a portion of the Earnout Holdback that:




     7.1 AUTHORITY/ENFORCEABILITY. Borrower is in compliance with all Requirements of Law
applicable to its organization, existence and transaction of business and has all necessary rights
and powers to own, develop, improve and operate the Property as contemplated by the Loan Documents.



     7.2 BINDING OBLIGATIONS. Borrower is authorized to execute, deliver and perform its
obligations under the Loan Documents, and such obligations shall be valid and binding obligations
of Borrower.



     7.3 FORMATION AND ORGANIZATIONAL DOCUMENTS. Borrower has delivered to Administrative Agent all
formation and organizational documents of Borrower, of the partners, joint venturers or members of
Borrower, if any, and of all guarantors of the Loan, if any, and all such formation and
organizational documents remain in full force and effect and have not been amended or modified
since they were delivered to Administrative Agent. Borrower shall immediately provide
Administrative Agent with copies of any future amendments or modifications of the formation or
organizational documents.



     7.4 NO VIOLATION. Borrower’s execution, delivery, and performance under the Loan Documents do
not: (a) require any consent or approval not heretofore obtained under any partnership agreement,
operating agreement, articles of incorporation, bylaws or other document; (b) violate any
Requirements of Law applicable to the Borrower, Property or any other statute, law, regulation or
ordinance or any order or ruling of any court or Governmental Authority; (c) conflict with, or
constitute a breach or default or permit the acceleration of obligations under any agreement,
contract, lease, or other document by which the Borrower or the Property is bound or regulated; or
(d) violate any statute, law, regulation or ordinance, or any order of any court or Governmental
Authority.



     7.5 COMPLIANCE WITH LAWS; USE. Borrower has, and at all times shall have obtained, all
permits, licenses, exemptions, and approvals necessary to construct, occupy, operate and market the
Property, and shall maintain compliance with all Requirements of Law applicable to the Property and
all other applicable statutes, laws, regulations and ordinances necessary for the transaction of
its business. The Property is comprised of one or more legal parcels lawfully created in full
compliance with all subdivision laws and ordinances, and is properly zoned for the stated use of
the Property as disclosed to Administrative Agent at the time of execution hereof. Borrower shall
not initiate or acquiesce to a zoning change of the Property without prior notice to, and prior
written consent from, the Requisite Lenders, which consent shall not be unreasonably withheld by
the Requisite Lenders so long as such changes (i) are consistent with the Ward Neighborhood Master
Plan, (ii) do not result in a decrease in value or the economic feasibility of any of the Property,
and (iii) add permitted uses but do not restrict any of the Property from continuing to be used for
its present use as of the Effective Date. In connection with the foregoing, portions of the
Property may be rezoned with the prior written consent of the Requisite Lenders



33









 




to permit one or more hotels to be built on the Property, so long as (x) the Property may continue
to be used for the same permitted uses for which such Property is being used as of the Effective
Date and (y) the conditions in the preceding sentence are satisfied. Subject to the foregoing,
Borrower shall not allow changes in the stated use of the Property from that disclosed to
Administrative Agent at the time of execution hereof without prior notice to, and prior written
consent from, the Requisite Lenders.




     7.6 LITIGATION. Except as disclosed on Schedule 7.6 attached hereto, there are no
claims, actions, suits, or proceedings pending, or to Borrower’s knowledge, threatened against
Borrower or affecting the Property other than (i) non-material items that arise in the ordinary
course of Borrower’s business (which, for purposes of this Section 7.6, means that such claim,
action, suit or proceeding does not involve an amount in excess of $100,000) and (ii) which are
fully covered by Borrower’s insurance provided with respect to the Property.



     7.7 FINANCIAL CONDITION. All financial statements and information heretofore and hereafter
delivered to Administrative Agent by Borrower, including, without limitation, information relating
to the financial condition of Borrower, the Property, the partners, joint venturers or members of
Borrower, and/or any Guarantors, fairly and accurately represent the financial condition of the
subject thereof and have been prepared (except as noted therein) in accordance with generally
accepted accounting principles consistently applied. Borrower acknowledges and agrees that
Administrative Agent and Lenders may request and obtain additional information from third parties
regarding any of the above, including, without limitation, credit reports.



     7.8 NO MATERIAL ADVERSE CHANGE. There has been no material adverse change in the financial
condition of Borrower and/or Guarantor since the dates of the latest financial statements furnished
to Administrative Agent and, except as otherwise disclosed to Administrative Agent in writing,
Borrower has not entered into any material transaction which is not disclosed in such financial
statements.



     7.9 ACCURACY. All reports, documents, instruments, information and forms of evidence delivered
to Administrative Agent by any Loan Party concerning the Loan or security for the Loan or required
by the Loan Documents are accurate, correct and sufficiently complete in all material respects to
give Administrative Agent and Lenders true and accurate knowledge of their subject matter, and do
not contain any misrepresentation or omission, or any material matter which would make such
reports, documents, instruments, information and other forms of evidence delivered to
Administrative Agent misleading in any material respect.



     7.10 TAX LIABILITY. Borrower has filed all required federal, state, county and municipal tax
returns and has paid all taxes and assessments owed and payable, and Borrower has no knowledge of
any basis for any additional payment with respect to any such taxes and assessments.



     7.11 TITLE TO ASSETS; NO LIENS. Borrower and the Non-Borrower Mortgagors have good and
indefeasible title to the Property, free and clear of all liens and encumbrances except Permitted
Liens.



     7.12 MANAGEMENT AGREEMENT. Borrower is not a party or subject to any management agreement with
respect to the Property as of the Effective Date. Borrower shall not enter into any management
agreement except in accordance with the terms of Section 8.1(c)(ix) of this Agreement, and Borrower
shall cause Manager (or any other property manager) under any such Management Agreement to enter
into a subordination agreement in form and substance reasonably acceptable to Administrative Agent.



     7.13 UTILITIES. All utility services, including, without limitation, gas, water, sewage,
electrical and telephone, necessary for the development and occupancy of the Property are available
at or within the boundaries of the Property.



34









 





     7.14 COMPLIANCE. Borrower is familiar with and in compliance with all Requirements of Law and
Permits for the development and operation of the Property and construction of the Additional
Improvements and will conform to and comply with all Requirements of Law.



     7.15 AMERICANS WITH DISABILITIES ACT COMPLIANCE. The Additional Improvements have been designed
and shall be constructed and completed, and thereafter maintained, in strict accordance and full
compliance with all of the requirements of the ADA. Borrower further represents and warrants to
Administrative Agent and Lenders that the Property shall be maintained in full and strict
compliance with the ADA. At Lender’s written request from time to time, Borrower shall provide
Administrative Agent with written evidence of such compliance satisfactory to Administrative Agent.
Borrower shall be solely responsible for all such ADA costs of compliance and reporting.



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



     7.17 OFAC. None of the Borrower, Guarantor or any of the other Affiliates of Borrower or
Guarantor: (i) is a person named on the list of Specially Designated Nationals or Blocked Persons
maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)
available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published
from time to time; (ii) is (A) an agency of the government of a country, (B) an organization
controlled by a country, or (C) a person resident in a country that is subject to a sanctions
program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time
to time, as such program may be applicable to such agency, organization or person; or (iii) derives
any of its assets or operating income from investments in or transactions with any such country,
agency, organization or person; and none of the proceeds from the Loan will be used to finance any
operations, investments or activities in, or make any payments to, any such country, agency,
organization, or person.



ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS

REGARDING SPECIAL PURPOSE ENTITY (“SPE”) STATUS




     8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPECIAL PURPOSE ENTITY (“SPE”) STATUS.
Borrower hereby represents, warrants and covenants to Administrative Agent and Lenders, with regard
to Borrower and each Non-Borrower Mortgagor, as applicable, as follows:




     (a) Limited Purpose. The sole purpose to be conducted or promoted by Borrower and
Non-Borrower Mortgagors is to engage in the following activities: (i) to acquire, own,
hold, lease, operate, manage, maintain, develop and improve, the Property; (ii) to enter
into and perform its obligations under the Loan Documents; (iii) to sell, transfer, service,
convey, dispose of, pledge, assign, borrow money against, finance, refinance or otherwise
deal with the Property to the extent permitted under the Loan Documents; and (iv) to engage
in any lawful act or activity and to exercise any powers permitted to corporations, limited
liability companies and trusts organized under the laws of the State of Delaware or Hawaii,
as applicable, that are related or incidental to and necessary, convenient or advisable for
the accomplishment of the above mentioned purposes; provided, however, the ownership of
stock in Victoria Ward Services, Inc. (TRS), a Delaware corporation (“Ward Services”) by
Parent shall not be a violation of any of the representations, warranties and covenants set
forth in this Article 8.




     (b) Limitations on Debt, Actions. Notwithstanding anything to the contrary in the Loan
Documents or in any other document governing the formation, management or operation of
Borrower and Non-Borrower Mortgagors, Borrower and Non-Borrower Mortgagors shall not (i)
guarantee any obligation of any Person, including any Affiliate, or become obligated for the
debts of any other Person or hold out its credit as being available to pay the obligations
of any other Person; (ii) engage, directly or indirectly, in any business other than as
required or permitted to be performed under this Section; (iii) incur, create or assume any
indebtedness or liabilities other



35









 







than the Loan, the Swap Contract or other interest rate swap transaction, and unsecured
trade payables incurred in the ordinary course of its business that are related to the
ownership and operation of the Property not to exceed two percent (2%) of the outstanding
balance of the Loan, and which is not evidenced by a note and which must be paid within
sixty (60) days and which are otherwise expressly permitted under the Loan Documents; (iv)
make or permit to remain outstanding any loan or advance to, or own or acquire any stock or
securities of, any Person, except that Borrower may invest in those investments permitted
under the Loan Documents; (v) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, sale or other transfer of any of its assets
outside the ordinary course of Borrower’s business; (vi) buy or hold evidence of
indebtedness issued by any other Person (other than cash or investment-grade securities);
(vii) form, acquire or hold any subsidiary (whether corporate, partnership, limited
liability company or other) or own any equity interest in any other entity; (vii) own any
asset or property other than the Property and incidental personal property necessary for the
ownership or operation of the Property; or (viii) take any material action without the
unanimous written approval of all members of Borrower.




     (c) Separateness Covenants. In order to maintain its status as a separate entity and to
avoid any confusion or potential consolidation with any Affiliate, Borrower represents and
warrants that in the conduct of its operations since its organization it has and will
(except as may otherwise be required under this Agreement or the Loan Documents) continue to
observe the following covenants (collectively, the “Separateness Provisions”): (i) maintain
books and records and bank accounts separate from those of any other Person; (ii) maintain
its assets in such a manner that it is not costly or difficult to segregate, identify or
ascertain such assets; (iii) comply with all organizational formalities necessary to
maintain its separate existence; (iv) hold itself out to creditors and the public as a legal
entity separate and distinct from any other entity; (vi) maintain separate financial
statements, showing its assets and liabilities separate and apart from those of any other
Person and not have its assets listed on any financial statement of any other Person except
that Borrower’s assets may be included in a consolidated financial statement of its
Affiliate; (vii) prepare and file its own tax returns separate from those of any Person to
the extent required by applicable law, and pay any taxes required to be paid by applicable
law; (viii) allocate and charge fairly and reasonably any common employee or overhead shared
with Affiliates; (ix) not enter into any transaction with any Affiliate, except on an
arm’s-length basis on terms which are intrinsically fair and no less favorable than would be
available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(x) conduct business in its own name, and use separate stationery, invoices and checks
bearing its own name; (xi) not commingle its assets or funds with those of any other Person;
(xii) not assume, guarantee or pay the debts or obligations of any other Person; (xiii)
correct any known misunderstanding as to its separate identity; (xiv) not permit any
Affiliate to guarantee or pay its obligations (other than limited guarantees and indemnities
set forth in the Loan Documents); (xv) not make loans or advances to any other Person; (xvi)
pay its liabilities and expenses out of and to the extent of its own funds; (xvi) maintain a
sufficient number of employees in light of its contemplated business purpose and pay the
salaries of its own employees, if any, only from its own funds; (xvii) not make any
distributions to its members or partners which would result in Borrower not having adequate
capital in light of its contemplated business purpose, transactions and liabilities;
provided, however, that the foregoing shall not require any equity owner to make additional
capital contributions to Borrower; and (xviii) cause the managers, officers, employees,
agents and other representatives of Borrower to act at all times with respect to Borrower
consistently and in furtherance of the foregoing and in the best interests of Borrower.




Failure of Borrower to comply with any of the covenants contained in this Section or any
other covenants contained in this Agreement shall not affect the status of Borrower as a
separate legal entity.




     (d) SPE Covenants in Borrower Organizational Documents. Borrower covenants and agrees
not to amend, modify or otherwise change its organizational documents with respect to any
SPE provisions or separateness covenants contained therein.



36









 






     (e) Additional Special Covenants. Without the prior written consent of Administrative
Agent, which consent shall not be unreasonably withheld or delayed, Borrower and
Non-Borrower Mortgagors shall not: (i) enter into, amend in any material respect (provided
that Borrower shall provide Administrative Agent a copy of any amendments, whether or not
material) or terminate any material agreement providing for the development, management,
leasing or operation of the Property if such action would reasonably be expected to have a
material adverse effect on the Property or any Borrower or Non-Borrower Mortgagor; (ii) make
any amendment to Borrower’s operating agreement or the organizational documents of any
Non-Borrower Mortgagor or any member of Borrower or any managing member or general partner,
as applicable, of such member, in each case from the form thereof previously provided to
Administrative Agent; (iii) engage in any transaction with any affiliate of Borrower, any
Non-Borrower Mortgagor or Guarantor on other than fair market, arms’-length terms and
conditions; or (iv) suffer or permit any direct or indirect change in the ownership of
Borrower or any Non-Borrower Mortgagor except as expressly provided in Section 13.2(b)
hereof; provided, however, that (1) the consent of Requisite Lenders shall
be required with respect to any material amendment referred to in clause (i) of this Section
8.1(e) and (2) the unanimous consent of the Lenders (in Lenders’ sole and absolute
discretion) shall be required with respect to any change in ownership referred to in clause
(iv) of this Section 8.1(e). For purposes of this Section 8.1(e), “material agreement”
shall mean any agreement which cannot, by its terms, be terminated upon sixty days notice,
or which involves annual expenditures (on an actual or projected basis) in excess of
$100,000.



ARTICLE 9. HAZARDOUS MATERIALS




     9.1 SPECIAL REPRESENTATIONS AND WARRANTIES. Without in any way limiting the other
representations and warranties set forth in this Agreement, and after reasonable investigation and
inquiry, Borrower hereby specially represents and warrants to the best of Borrower’s knowledge as
of the date of this Agreement as follows:




     (a) Hazardous Materials. Except as set forth in those certain reports listed on
Schedule 8.1 attached hereto, the Property is not and has not been a site for the
use, generation, manufacture, storage, treatment, release, threatened release, discharge,
disposal, transportation or presence of any oil, flammable explosives, asbestos, urea
formaldehyde insulation, mold, toxic mold, radioactive materials, hazardous wastes, toxic or
contaminated substances or similar materials, including, without limitation, any substances
which are “hazardous substances,” “hazardous wastes,” “hazardous materials,” “toxic
substances,” “wastes,” “regulated substances,” “industrial solid wastes,” or “pollutants or
contaminants” under the Hazardous Materials Laws, as described below, and/or other
applicable environmental laws, ordinances and regulations (collectively, the “Hazardous
Materials”). “Hazardous Materials” shall not include commercially reasonable amounts of
such materials used in the ordinary course of construction or operation of the Property
which are used and stored in accordance with all applicable Hazardous Materials Laws.




     (b) Hazardous Materials Laws. The Property is in compliance with all laws, ordinances
and regulations relating to Hazardous Materials (“Hazardous Materials Laws”), including,
without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et
seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251
et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42
U.S.C. Section 6901 et seq.; the Comprehensive Environment Response,
Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and
Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the
Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.;
the Hazardous Materials Transportation Act, as amended 49 U.S.C. Section 1801 et
seq.; the Atomic Energy Act, as amended, 42 U.S.C. Section 2011 et
seq.; the Federal Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C.
Section 136 et seq.; the Occupational Safety and Health Act, as amended, 29
U.S.C. Section 651, the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as
amended, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, as



37









 







amended, 42 U.S.C. Section 300f et seq.; each as now and hereafter amended,
and the regulations thereunder, and any other local, state and/or federal laws or
regulations that govern (i) the existence, cleanup and/or remedy of contamination on the
Property; (ii) the protection of the environment from released, spilled, deposited or
otherwise emplaced contamination; (iii) the control of hazardous wastes; or (iv) the use,
generation, transport, treatment, removal or recovery of Hazardous Materials, including any
and all building materials.




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



     9.2 HAZARDOUS MATERIALS COVENANTS. Borrower agrees as follows:




     (a) No Hazardous Activities. Borrower shall not cause or permit the Property to be used
as a site for the use, generation, manufacture, storage, treatment, release, discharge,
disposal, transportation or presence of any Hazardous Materials.




     (b) Compliance. Borrower shall comply and cause the Property to comply with all
Hazardous Materials Laws.




     (c) Notices. Borrower shall immediately notify Administrative Agent in writing of: (i)
the discovery of any Hazardous Materials on, under or about the Property; (ii) any knowledge
by Borrower that the Property does not comply with any Hazardous Materials Laws; and (iii)
any Hazardous Materials Claims.




     (d) Remedial Action. In response to the presence of any Hazardous Materials on, under
or about the Property, Borrower shall immediately take, at Borrower’s sole expense, all
remedial action required by any Hazardous Materials Laws or any regulatory agency, governing
body, or any judgment, consent decree, settlement or compromise with respect to any
Hazardous Materials Claims.



     9.3 INSPECTION BY ADMINISTRATIVE AGENT. Upon reasonable prior notice to Borrower,
Administrative Agent, its employees and agents, may from time to time (whether before or after the
commencement of a nonjudicial or judicial foreclosure proceeding) enter and inspect the Property
for the purpose of determining the existence, location, nature and magnitude of any past or present
release or threatened release of any Hazardous Materials into, onto, beneath or from the Property.



     9.4 HAZARDOUS MATERIALS INDEMNITY. BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD
HARMLESS INDEMNITEES FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS,
JUDGMENTS, COURT COSTS AND LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES
AND EXPENSES) WHICH INDEMNITEES MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF THE USE,
GENERATION, MANUFACTURE, STORAGE, DISPOSAL, THREATENED DISPOSAL, TRANSPORTATION OR PRESENCE OF
HAZARDOUS MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY, ANY VIOLATION OR CLAIM OF VIOLATION OF ANY
HAZARDOUS MATERIALS LAWS WITH RESPECT TO THE PROPERTY, OR ANY INDEMNITY CLAIM BY A THIRD PARTY
AGAINST ONE OR MORE INDEMNITEES IN CONNECTION WITH ANY OF THE FOREGOING BUT EXCLUDING ANY SUCH
AMOUNT TO THE EXTENT ARISING OUT OF OR ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF ANY INDEMNITEE. EACH INDEMNITEE SHALL HAVE THE RIGHT AT ANY TIME TO APPEAR IN, AND TO
PARTICIPATE IN AS A PARTY IF IT SO ELECTS, AND BE REPRESENTED BY COUNSEL OF ITS OWN CHOICE IN, ANY
ACTION OR PROCEEDING INITIATED IN CONNECTION WITH ANY HAZARDOUS MATERIALS LAWS THAT AFFECT THE
PROPERTY. BORROWER SHALL IMMEDIATELY PAY TO THE APPLICABLE INDEMNITEES, UPON DEMAND, ANY AMOUNTS
OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID
AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE OF THE LOAN. BORROWER’S DUTY AND



38









 




OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS INDEMNITEES SHALL SURVIVE THE CANCELLATION OF
THE NOTES AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THE MORTGAGE. NOTWITHSTANDING
THE FOREGOING, BORROWER SHALL NOT BE OBLIGATED TO INDEMNIFY HEREUNDER WITH REGARD TO ANY HAZARDOUS
MATERIALS FIRST USED, GENERATED, MANUFACTURED, STORED OR DISPOSED IN, ON, UNDER OR ABOUT THE
PROPERTY BY ANY THIRD PARTY AFTER THE LATEST OF: (i) THE DATE OF FORECLOSURE ON THE MORTGAGE (OR
LENDER’S ACCEPTANCE OF A DEED IN LIEU THEREOF); OR (ii) THE DATE BORROWER NO LONGER HAS OCCUPANCY
OF THE PROPERTY; OR (iii) THE DATE BORROWER NO LONGER USES OR OPERATES THE PROPERTY; PROVIDED,
HOWEVER, NOTWITHSTANDING THE FOREGOING, IF ANY HAZARDOUS MATERIALS ARE DISCOVERED IN, ON UNDER OR
ABOUT THE PROPERTY AFTER SUCH APPLICABLE DATE THAT ARE CONSISTENT WITH THE OWNERSHIP, OCCUPANCY,
USE OR OPERATION OF THE PROPERTY WHICH OCCURRED DURING BORROWER’S OWNERSHIP, OCCUPANCY, USE OR
OPERATION OF THE PROPERTY, THEN THERE IS A PRESUMPTION THAT THE USE, GENERATION, MANUFACTURE,
STORAGE, DISPOSAL OF, TRANSPORTATION OR PRESENCE OF ANY OF SAID HAZARDOUS MATERIALS IN, ON, UNDER,
ABOUT, OR MIGRATING FROM, THE PROPERTY OCCURRED DURING BORROWER’S OWNERSHIP, OCCUPANCY, USE OR
OPERATION OF THE PROPERTY, AND BORROWER SHALL CONTINUE TO BE OBLIGATED TO INDEMNIFY HEREUNDER
UNLESS BORROWER OVERCOMES SAID PRESUMPTION WITH THE BURDEN OF PROOF.




ARTICLE 10. COVENANTS OF BORROWER




     10.1 EXPENSES. Borrower shall immediately pay Administrative Agent upon demand all actual,
out-of-pocket costs and expenses incurred by Administrative Agent in connection with: (a) the
preparation of this Agreement, all other Loan Documents and Other Related Documents contemplated
hereby; (b) the administration of this Agreement, the other Loan Documents and Other Related
Documents for the term of the Loan; and (c) the enforcement or satisfaction by Administrative Agent
and/or Lenders of any of Borrower’s or Guarantor’s obligations under this Agreement, the other Loan
Documents, the Guaranty or the Other Related Documents. For all purposes of this Agreement,
Administrative Agent’s and Lenders’ costs and expenses shall include, without limitation, all
appraisal fees, cost engineering and inspection fees, legal fees and expenses, accounting fees,
environmental consultant fees, auditor fees, UCC filing fees and/or UCC vendor fees, flood
certification vendor fees, tax service vendor fees, documentary stamp tax, intangible tax,
recording and/or filing fees, and the cost to Lenders of any title insurance premiums or
endorsements, title surveys, reconveyance and notary fees. Borrower recognizes and agrees that
Administrative Agent or Lenders may, at their option, require inspection of the Property by an
independent supervising architect and/or cost engineering specialist and/or Independent Inspecting
Architect: (i) prior to each Advance; (ii) upon Completion of the Additional Improvements; and
(iii) in any event, at least semi-annually. Borrower further recognizes and agrees that (x)
Administrative Agent may require re-appraisal of the Property at Borrower’s expense in accordance
with Section 10.11 hereof and (y) formal written Appraisals of the Property by a licensed
independent appraiser may be required by Administrative Agent’s or any Lender’s internal procedures
and/or federal regulatory reporting requirements on an annual and/or specialized basis at
Administrative Agent’s or such Lender’s expense. If any of the services described above are
provided by an employee of Administrative Agent or its Affiliates, Administrative Agent’s costs and
expenses for such services shall be calculated in accordance with Administrative Agent’s standard
charge for such services.



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



39









 





     10.3 LEASING. Borrower shall use good faith, diligent efforts to maintain all leasable space in
the Property leased at no less than fair market rental rates.



     10.4 APPROVAL OF LEASES.




     (a) Borrower shall perform its covenants and obligations under the Leases, and shall
promptly deliver to Administrative Agent copies of any notices of default or other material
notices received from any tenants under the Leases. Borrower shall not amend or modify any
Lease that is not a Minor Lease or License Agreement in any material manner without the
prior written consent of Administrative Agent (it being agreed, without limiting the
foregoing, that any amendment or modification to the Leases which (1) reduces the rent or
term of the Lease, (2) changes the permitted use by the tenant thereunder, (3) provides for
any material concessions to the tenant, (4) materially increases landlord’s obligations
thereunder or (5) restricts the future development of any of the Property or (6) grants any
options, rights of first refusal or other similar rights to purchase any of the Property,
shall be deemed material). In addition, Borrower shall not terminate any Lease that is not
a Minor Lease or License Agreement without the prior written consent of Administrative Agent
in Administrative Agent’s sole discretion, except that Borrower may terminate (A) Leases of
tenants who are relocating to other space within the Property provided that such tenants
execute Leases covering such space on substantially the same economic terms as the
terminated Lease, (B) Leases under 5,000 square feet in the ordinary course of business of
owning and operating a mixed use development in a reasonable and prudent manner, so long as
(i) no Default or Potential Default is then existing and (ii) in the case of (B), such Lease
is being terminated on account of either (x) a default by the tenant under the Lease in
question or (y) the redevelopment of that portion of the Property affected by such Lease.
All Leases (and lease terminations, modifications or amendments) of all or any part of the
Property shall: (a) satisfy the requirements for an Approved Lease as set forth in the
definition thereof; and (b) include estoppel, subordination, attornment and mortgagee
protection provisions satisfactory to Administrative Agent in Administrative Agent’s
reasonable discretion. Any material deviation from the Approved Lease Form shall be subject
to the prior approval of Administrative Agent prior to execution of any lease using such
form, such approval not to be unreasonably withheld.




     (b) Borrower shall not enter into any Lease of any portion of the Property unless such
Lease satisfies the requirements of an Approved Lease. As used in this Agreement, an
“Approved Lease” means (1) a License Agreement, (2) a Lease that is in effect prior to the
Effective Date and which has been reviewed by Administrative Agent, (3) a Lease executed
after the Effective Date covering less than 2,500 rentable square feet of the Property and
that provides for a Net Effective Rent of at least seventy percent (70%) or more of Pro
Forma Rent and is substantially on an Approved Lease Form and otherwise on arm’s length
terms and with a tenant unaffiliated with Borrower or Guarantor (a “Minor Lease”) and (4) a
Lease executed after the Effective Date covering 2,500 rentable square feet or more of the
Property that (i) is substantially on the Approved Lease Form or, if not substantially on
the Approved Lease Form, is approved by Administrative Agent in writing as to form and
content, (ii) is on economic terms not materially less favorable than Pro Forma Rent
(including, but not limited to, term, Net Effective Rent (as hereinafter defined), expense
recovery and tenant improvement/concession package), (iii) with respect to a Lease that
covers less than 10,000 rentable square of area of the Property, and notwithstanding clause
(ii) above, such Lease provides for a Net Effective Rent of at least eighty-five percent
(85%) or more of Pro Forma Rent, and if such Lease does not satisfy the required Net
Effective Rent, Administrative Agent has otherwise reviewed and approved such Lease, (iv)
with respect to a Lease that covers 10,000 rentable square feet or more of the Property but
less than 25,000 rentable square feet of the Property, such Lease is with a tenant approved
by Administrative Agent as to the creditworthiness of such tenant, and such Lease has been
reviewed and approved by Administrative Agent and (v) with respect to a Lease that covers
25,000 rentable square or more of the Property, such Lease is with a tenant approved by
Administrative Agent as to the creditworthiness of such tenant, and such Lease has been



40









 







reviewed and approved by the Requisite Lenders. Borrower shall provide a copy of any
executed Leases to Administrative Agent upon Administrative Agent’s request.




     (c) With respect to any Lease that requires the approval of only Administrative Agent as
provided herein, Borrower shall submit the Lease Materials for such proposed Lease to
Administrative Agent in writing with its request for the approval of the Lease by the
Administrative Agent, and Administrative Agent shall respond to Borrower with its approval
or disapproval, as the case may be, of the Lease within seven (7) Business Days of
Administrative Agent’s receipt of such Lease Materials, provided that the notice sent by
Borrower to Administrative Agent shall include the following statement set forth in all
capital letters: “NOTE: ADMINISTRATIVE AGENT’S REPLY TO BORROWER’S REQUEST FOR APPROVAL OF
THE ENCLOSED LEASE MATERIALS IS REQUIRED WITHIN SEVEN (7) BUSINESS DAYS OF ITS RECEIPT OF
THIS REQUEST, AND ADMINISTRATIVE AGENT’S FAILURE TO RESPOND WITHIN SUCH SEVEN (7) BUSINESS
DAY PERIOD SHALL BE DEEMED AN APPROVAL OF THE ENCLOSED LEASE.” If the request from Borrower
contains the foregoing language and the required Lease Materials and Administrative Agent
fails to respond in writing (which may be by email) with Administrative Agent’s approval or
disapproval on or before the seventh (7th) Business Day of Administrative Agent’s receipt of
such written notice and Lease Materials, such failure shall be deemed to be an approval of
such proposed Lease by Administrative Agent.




     (d) With respect to any Lease that requires the approval of the Requisite Lenders as
provided herein, Borrower shall submit the Lease Materials for such proposed Lease to
Administrative Agent in writing with its request for the approval of the Lease by the
Requisite Lenders, and Administrative Agent shall respond to Borrower with the Requisite
Lenders’ approval or disapproval, as the case may be, of the Lease within ten (10) Business
Days of Administrative Agent’s receipt of such Lease Materials, provided that the notice
sent by Borrower to Administrative Agent shall include the following statement set forth in
all capital letters: “NOTE: THE REQUISITE LENDERS’ REPLY TO THE REQUEST FOR APPROVAL OF
THE ENCLOSED LEASE MATERIALS IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS
REQUEST, AND THE REQUISITE LENDERS’ FAILURE TO RESPOND WITHIN SUCH TEN (10) BUSINESS DAY
PERIOD SHALL BE DEEMED AN APPROVAL OF THE ENCLOSED LEASE.” Upon receipt of such request,
Administrative Agent shall promptly send a copy of the Lease Materials to each Lender, and
each Lender shall review and reply to Administrative Agent in writing with such Lender’s
approval or disapproval, as the case may be, of the Lease Materials for such Lease within
five (5) Business Days of such Lender’s receipt of the applicable Lease Materials, and if
any Lender fails to respond to Administrative Agent within such five (5) Business Day
period, then Administrative Agent shall be entitled to rely on such non-response as an
approval of the proposed Lease by such Lender. If the request to Administrative Agent
contains the required notice language and the required Lease Materials and Administrative
Agent fails to respond in writing (which may be by email) with Administrative Agent’s
approval or disapproval on or before the tenth (10th) Business Day of Administrative Agent’s
receipt of such written notice and Lease Materials, such failure shall be deemed to be an
approval of such proposed Lease by the Requisite Lenders.




     (e) Administrative Agent shall provide timely responses to Borrower’s requests for review
and approval of any Subordination, Nondisturbance and Attornment Agreements and other
reasonable items related to the redevelopment of any of the Property (e.g., easements).
With respect to any items that require Administrative Agent’s approval, Administrative Agent
shall review and reply to Borrower with its approval or disapproval, as the case may be, of
such matter within fifteen (15) Business Days of Administrative Agent’s receipt of a written
request from Borrower for approval, provided that the notice sent by Borrower to
Administrative Agent includes the following statement set forth in all capital letters
“NOTE: ADMINISTRATIVE AGENT’S REPLY TO BORROWER’S REQUEST FOR APPROVAL OF THE ENCLOSED
MATERIAL IS REQUESTED WITHIN FIFTEEN (15) BUSINESS DAYS OF ITS RECEIPT OF THIS REQUEST.” If
the request to Administrative Agent contains the required notice language and Administrative
Agent fails to respond in writing (which may be by email) with Administrative Agent’s
approval or



41









 







disapproval on or before the fifteenth (15th) Business Day of Administrative Agent’s receipt
of such written notice, such failure shall be deemed to be an approval of such request.



     10.5 SUBDIVISION MAPS. Prior to recording any final map, plat, parcel map, lot line adjustment
or other subdivision map of any kind covering any portion of the Property (collectively,
“Subdivision Map”), Borrower shall submit such Subdivision Map to Administrative Agent for
Administrative Agent’s review and approval, which approval shall not be unreasonably withheld.
Within ten (10) Business Days after Administrative Agent’s receipt of such Subdivision Map,
Administrative Agent shall provide Borrower written notice if Administrative Agent disapproves of
said Subdivision Map. Within five (5) Business Days after Administrative Agent’s request, Borrower
shall execute, acknowledge and deliver to Administrative Agent such amendments to the Loan
Documents as Administrative Agent may reasonably require to reflect the change in the legal
description of the Property resulting from the recordation of any Subdivision Map. In connection
with and promptly after the recordation of any amendment or other modification to the Mortgage
recorded in connection with such amendments, Borrower shall deliver to Administrative Agent, for
the benefit of Lenders, at Borrower’s sole expense, a title endorsement to the Title Policy in form
and substance satisfactory to Administrative Agent insuring the continued first priority Lien of
the Mortgage. Subject to the execution and delivery by Borrower of any documents required under
this Section, Administrative Agent, on behalf of Lenders, shall, if required by applicable law,
sign any Subdivision Map approved by Administrative Agent pursuant to this Section.



     10.6 OPINION OF LEGAL COUNSEL. Borrower shall provide, at Borrower’s expense, an opinion of
legal counsel in form and content satisfactory to Administrative Agent to the effect that: (a)
upon due authorization, execution and recordation or filing as may be specified in the opinion,
each of the Loan Documents and Other Related Documents shall be legal, valid and binding
instruments, enforceable against the makers thereof in accordance with their respective terms; (b)
Borrower, Non-Borrower Mortgagors and Guarantor are duly formed and have all requisite authority to
enter into the Loan Documents and Other Related Documents; and (c) such other matters, incident to
the transactions contemplated hereby, as Administrative Agent may reasonably request.



     10.7 FURTHER ASSURANCES. Upon Administrative Agent’s request and at Borrower’s sole cost and
expense, Borrower shall, and shall cause any Person affiliated with Borrower to, execute,
acknowledge and deliver any other instruments, including replacement promissory notes, guaranties
or other loan documents, and perform any other acts necessary, desirable or proper, as determined
by Administrative Agent, to correct clerical errors or omissions in any loan closing documentation,
to replace any lost or destroyed loan closing documentation, or to carry out the purposes of this
Agreement and the other Loan Documents or to perfect and preserve any Liens created by the Loan
Documents. This obligation shall survive any foreclosure or deed in lieu of foreclosure of the
Property.



     10.8 MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Without limiting Borrower’s obligations under
Section 8.1 or Article 13, Borrower shall not: (a) merge or consolidate with any other entity; (b)
make any substantial change in the nature of Borrower’s business or structure; (c) acquire all or
substantially all of the assets of any other entity; or (d) sell, lease, assign, pledge,
hypothecate, mortgage or transfer or otherwise dispose of a material part of Borrower’s assets,
except in the ordinary course of Borrower’s business.



     10.9 ASSIGNMENT. Without the prior written consent of Lenders, Borrower shall not assign
Borrower’s interest under any of the Loan Documents, or in any monies due or to become due
thereunder, and any assignment without such consent shall be void. Borrower may, in the sole and
absolute discretion of the Requisite Lenders, assign its interest under the Loan Documents to a
transferee acceptable to Requisite Lenders in their sole and absolute discretion, provided that
such transferee assumes the Loan on such terms and conditions as the Requisite Lenders may require
in their sole and absolute discretion. Borrower’s owners may, subject to the prior written
approval of all of the Lenders in their sole and absolute discretion, obtain mezzanine financing
for the Property, and, in connection therewith, pledge as security for such financing the ownership
interests in the Borrower, provided, in any event, any mezzanine financing shall be subject to a
subordination and intercreditor agreement in form and substance acceptable to Administrative Agent
in Administrative Agent’s sole and absolute discretion.



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     10.10 MANAGEMENT OF PROPERTY. Without the prior written consent of Administrative Agent,
Borrower shall not enter into, materially amend or terminate any Management Agreement or any other
agreement providing for the management, leasing or operation of the Property; provided, however,
Administrative Agent shall not unreasonably withhold approval of entering into the Management
Agreement with Manager so long as the Manager executes a subordination agreement in form and
substance reasonably acceptable to Administrative Agent. Borrower may, without the consent of
Administrative Agent or the Lenders, enter into leasing commission agreements with third parties
that are in good faith and on arm’s length market terms and conditions.



     10.11 APPRAISAL. As of the Effective Date, Administrative Agent shall have received a written
Appraisal confirming to the satisfaction of Administrative Agent that the Loan-to-Value Ratio for
the Initial Facility amount (after adjustment for senior Liens and regular and special tax
assessments) does not exceed sixty-five percent (65%). In addition to the Appraisals obtained in
connection with the Loan, Administrative Agent shall have the right to obtain Appraisals of any of
the Property at Borrower’s cost and expense (i) in connection with the Remargin Right under Section
2.8(b) hereof on or about the Remargin Date, (ii) if a material adverse change in the status of any
Property occurs, including without limitation, a material decrease in leasing levels, a material
decrease in Net Operating Income or the occupancy rate of any Property that is not in the process
of being redeveloped and (iii) upon the occurrence of a Default.



     10.12 NOTICE OF CHANGE IN MANAGEMENT. In the event the Board of Directors of Guarantor desire to
change the senior management team of Guarantor existing as of the Effective Date (said senior
management team consisting of Grant Herlitz, David Weinreb and Andrew Richardson), Borrower or
Guarantor shall deliver written notice to Administrative Agent of such change in management within
120 days after the occurrence thereof, with the names of the new senior management team of
Guarantor.



     10.13 REQUIREMENTS OF LAW. Borrower shall comply with all Requirements of Law and shall use
commercially reasonable and good faith efforts to cause other persons or entities to comply with
same in a timely manner.



     10.14 LIMITATIONS ON DISTRIBUTIONS, ETC. Following the occurrence and during the continuance of
a known monetary or other material Potential Default or any Default, Borrower shall not distribute
any money or other property to any member of Borrower, whether in the form of earnings, income or
other proceeds from the Property, nor shall Borrower repay any principal or interest on any loan or
other advance made to Borrower by any member, nor shall Borrower loan or advance any funds to any
such member. In addition to the foregoing, Borrower shall not distribute any proceeds of the Loan
to its members or partners or any of their Affiliates, it being acknowledged and agreed that the
Loan proceeds shall be used solely for the purposes stated in this Agreement.



     10.15 DERIVATIVE DOCUMENTS. Borrower shall be permitted to enter into a Swap Contract with Wells
Fargo or another financial institution approved by Administrative Agent in its sole discretion. If
Borrower purchases from Wells Fargo any swap, derivative, foreign exchange or hedge transaction or
arrangement (or other similar transaction or arrangement howsoever described or defined) in
connection with the Loan, Borrower shall, upon receipt from Lender, execute promptly all documents
evidencing such transaction, including without limitation the ISDA Master Agreement, the Schedule
to the ISDA Master Agreement and the ISDA Confirmation.



     10.16 CASH MANAGEMENT AGREEMENT; DEBT YIELD TEST.




	 	(a)	 	All Operating Revenues shall be deposited into the Lockbox Account on a daily
basis pursuant to the Cash Management Agreement. So long as no Cash Trap Event
Period is then existing, all funds deposited into the Lockbox Account shall be
transferred from the Lockbox Account to the Operating Account pursuant to the Cash
Management Agreement, and Borrower will have unrestricted access to the funds in the
Operating Account.




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	 	(b)	 	Upon the occurrence and during the existence of a Cash Trap Event Period, all
Operating Revenues shall be swept into the reserve accounts required under the Cash
Management Agreement, including without limitation, any required Impound Accounts,
and amounts necessary to pay Operating Expenses (to the extent of any Operating
Revenues received and remaining after the required reserve accounts are funded)
shall be made available to Borrower to pay such Operating Expenses as provided in
the Cash Management Agreement. All Net Cash Flow remaining after payment of
Operating Expenses shall be deposited into the Excess Cash Flow Reserve Account.
Thereafter, the cash sweep shall remain in effect under the Cash Management
Agreement so long as the Cash Trap Event Period remains in effect. Borrower may
request disbursements in writing from the Excess Cash Flow Reserve Account to pay
for the cost of Tenant Improvements and Leasing Commissions incurred in connection
with Approved Leases, and any disbursements from the Excess Cash Flow Reserve
Account shall be subject to the same terms and conditions to funding Loan proceeds
set forth in this Agreement (except that disbursements from the Excess Cash Flow
Reserve Account may be made after the Remargin Date). As used herein the term
“Cash Trap Event Period” shall mean a period commencing upon the earlier of
(i) the occurrence and continuance of a Default or (ii) at any time that either the
Debt Yield is less than nine percent (9.0%) or the Loan-to-Value Ratio (based on the
then outstanding principal of the Loan and the most recent Appraisals obtained by
Administrative Agent) exceeds sixty-five percent (65%), which Cash Trap Event Period
shall expire (y) with regard to any Cash Trap Event Period commenced in connection
with clause (i) above, upon the cure (if applicable) of such Default to the
satisfaction of Administrative Agent in its sole discretion (provided that a Cash
Trap Event Period has not occurred and is not continuing pursuant to clause (ii)
above), or (z) with regard to any Cash Trap Event Period commenced in connection
with clause (ii) above, upon the date that the Debt Yield exceeds nine percent
(9.0%) and the Loan-to-Value Ratio (based on the then outstanding principal of the
Loan) is not greater than sixty-five percent (65%) for two (2) consecutive calendar
quarters (provided that no Default shall have occurred and be continuing during and
at the time of the expiration of such period). In addition to the foregoing,
Borrower may, at any time during the Cash Trap Event Period, make a principal
prepayment to Administrative Agent, for the account of Lenders, in the amount
necessary to achieve a Debt Yield of nine percent (9.0%) and a Loan-to-Value Ratio
(based on the then outstanding principal of the Loan) of sixty-five percent (65%),
and upon such prepayment, and provided no Default is then existing, the Cash Trap
Event Period shall cease for such occurrence; however, any future failure to
maintain the required Debt Yield and/or Loan-to-Value Ratio shall again result in a
Cash Trap Event Period. Any principal prepayment made pursuant to this Section
10.16(b) shall not be subject to any Prepayment Premium, but shall be accompanied by
(i) any LIBOR breakage costs incurred by Lenders and (2) any termination payments
under any Swap Contract. Any principal payment made pursuant to this paragraph
shall be applied first to any portion of the Loan that is not subject to a Swap
Contract, if any.
	 
	 	(c)	 	If at any time either (i) the Debt Yield is less than eight and one-fourth
percent (8.25%) or (ii) the Loan-to-Value Ratio (based on the then outstanding
principal of the Loan) exceeds seventy percent (70%), then (i) if the cash sweep has
not previously been initiated under the Cash Management Agreement, a Cash Trap Event
Period shall be deemed to have occurred and all Operating Revenues shall be swept
into the reserve accounts required under the Cash Management Agreement and (ii) any
amounts which are swept by Administrative Agent into the reserve accounts under the
Cash Management Agreement, including any funds held in the Excess Cash Flow Reserve
Account, may be used or applied at any time against the outstanding principal
balance of the Loan, projected debt service shortfalls or projected operating
shortfalls, in Administrative Agent’s sole and absolute discretion. Any principal
prepayment made pursuant to this Section 10.16(c) shall not be subject to any
Prepayment Premium, but shall be accompanied by any (i) any LIBOR breakage costs
incurred by Lenders and (ii) any termination payments under any Swap Contract. Any
principal payment made




44









 






	 	 	 	pursuant to this paragraph shall be applied first to any portion of the Loan that is
not subject to a Swap Contract, if any.





     10.17 CONSTRUCTION AGREEMENTS; PLANS. Borrower shall (i) diligently and without delay perform
all of its obligations under any Construction Agreements in accordance with the terms thereof, and
(ii) not permit a default by Borrower to occur thereunder. Borrower shall deliver to
Administrative Agent a copy of all material correspondence or notices sent to or received under
any Construction Agreement, including without limitation, any demand or default notice received
thereunder. As additional security for the payment of the Loan, Borrower hereby transfers and
assigns to Administrative Agent, for the benefit of the Lenders, as a collateral assignment only,
all of Borrower’s rights under any Construction Agreement and any plans and specifications for the
construction of any Additional Improvements, subject to the retention by Borrower of a license to
use and enjoy such rights and to perform such obligations thereunder, which license is limited as
hereinafter provided, and Borrower hereby represents, warrants and agrees with Administrative Agent
and Lenders that:




	 	(a)	 	Neither this assignment nor any action by Administrative Agent shall constitute
an assumption by Administrative Agent and Lenders of any obligations under the
Construction Agreements, and Borrower shall continue to be liable for all obligations
of Borrower thereunder, Borrower hereby agreeing to perform all of its obligations
under the Construction Agreements so as not to permit a default thereunder. Borrower
hereby indemnifies and holds Administrative Agent and Lenders harmless against and from
any loss, cost, liability or expense (including but not limited to reasonable
attorneys’ fees) resulting from any failure of Borrower to so perform.
	 
	 	(b)	 	Administrative Agent shall have the right (but shall have no obligation) at any
time upon the occurrence of a Default to take such action as Administrative Agent may
at any time reasonably determine to be necessary or advisable to cure any default by
Borrower under the Construction Agreements or to protect the rights of Borrower or
Administrative Agent and Lenders thereunder, and Borrower hereby irrevocably appoints
Administrative Agent as Borrower’s attorney-in-fact, which agency is coupled with an
interest, and in such capacity, Administrative Agent may take any action on behalf of
Borrower under any of the Construction Agreements as Administrative Agent deems
appropriate. Administrative Agent and Lenders shall incur no liability if any action
so taken by Administrative Agent shall prove to be inadequate or invalid, and Borrower
agrees to defend and hold Administrative Agent and Lenders free and harmless against
and from any loss, cost, liability or expense (including but not limited to reasonable
attorneys’ fees) incurred in connection with such action. THE FOREGOING INDEMNITY
SHALL INCLUDE LOSSES, COSTS, LIABILITIES OR EXPENSES OF ADMINISTRATIVE AGENT AND
LENDERS RESULTING FROM THE NEGLIGENCE OF SUCH INDEMNIFIED PARTIES, BUT NOT THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTIES.
	 
	 	(c)	 	Prior to a Default hereunder and the termination by Administrative Agent of the
license granted herein to Borrower, Borrower shall have the right to exercise its
rights under the Construction Agreements, provided that Borrower shall not cancel or
terminate any material Construction Agreements (i.e., a Construction Agreement with a
contract sum in excess of $1,000,000) or do or suffer to be done any act with respect
to such material Construction Agreement which would materially impair the security
constituted by this assignment without the prior written consent of Administrative
Agent.
	 
	 	(d)	 	This assignment shall inure to the benefit of Administrative Agent and Lenders
and their respective successors and assigns, including any purchaser upon foreclosure
of the Mortgage, any receiver in possession of the Property, and any entity formed by
Administrative Agent which assumes Administrative Agent’s and Lenders’ rights and
obligations under this Agreement.




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	 	(e)	 	Upon the occurrence of any Default under this Agreement, Administrative Agent
shall have the right, power and privilege (but shall be under no duty) to terminate the
license granted to Borrower hereunder and thereupon Administrative Agent may exercise
all rights and remedies and undertake all actions which would be available to Borrower
under the Construction Agreements in accordance with their terms and use any plans and
specifications for the Additional Improvements. The assignment contained herein is
primary in nature to the obligations evidenced and secured by the Loan Documents.
Borrower agrees that Administrative Agent may enforce the assignment contained herein
without first resorting to or exhausting any other security or collateral; provided,
however, that nothing herein contained shall prevent Administrative Agent and Lenders
from suing on the Notes, foreclosing the Mortgage or exercising any other right or
remedy under the Mortgage or any other Loan Document or at law or equity.





     10.18 AUAHI CONDOMINIUM PARKING. In the event that Borrower proceeds with the development of the
Auahi Condominiums on the Auahi Condominium Land, then Borrower may execute a Parking Rights
Agreement (herein so called) covering the WVRS Parking Garage, which shall provide that the Auahi
Condominiums shall have the right to park up to 100 automobiles in the WVRS Parking Garage,
provided, further, (i) such parking rights may be on a reserved basis, (ii) the parking rights
granted to the Auahi Condominiums shall not in any event result in the Ward Village Retail Shops
and Auahi Shops (if constructed) having less parking than required under any applicable
Requirements of Law and (iii) such Parking Rights Agreement shall be subject to Administrative
Agent’s prior review and written approval, provided that Administrative Agent shall not
unreasonably withhold its approval or consent to such Parking Rights Agreement so long as the
Parking Rights Agreement does not have a material adverse affect on the use, value, economic
feasibility or marketability of the Ward Village Retail Shops or Auahi Shops (if constructed).
Upon Administrative Agent’s approval of any Parking Rights Agreement, Administrative Agent shall
execute a consent to such Parking Rights Agreement in form reasonably acceptable to Administrative
Agent (which shall subordinate the lien of the applicable Mortgage to the Parking Rights Agreement,
provided, further that such Parking Rights Agreement shall provide that any Lien rights granted
under the Parking Rights Agreement, if any, shall be subordinate to the Lien of any Mortgage or any
other mortgage which may be placed on the WVRS Parking Garage from time to time), and Borrower may
record the Parking Rights Agreement in the applicable real property records.



ARTICLE 11. REPORTING COVENANTS




     11.1 FINANCIAL STATEMENTS.




     (a) Borrower Annual Financial Statements. Borrower shall deliver to Administrative
Agent, as soon as available, but in no event later than one hundred twenty (120) days after
Borrower’s fiscal year end and certified as required by Section 11.8 below, a current
financial statement (including, without limitation, a balance sheet, an income and expense
statement and statement of cash flow) signed by an officer of Borrower reasonably acceptable
to Administrative Agent, together with any other financial information including, without
limitation, quarterly financial statements, annual financial statements, cash flow
projections, and other financial information reasonably requested by Administrative Agent
for the Borrower.




     (b) Borrower Quarterly Financial Statements. Within forty-five (45) days after the end
of each calendar quarter, Borrower shall also deliver to Administrative Agent quarterly
financial statements (including a balance sheet, income state and a statement of cash flow)
and other financial information regarding Borrower as Administrative Agent may specify.




     (c) Guarantor Financial Statements. Borrower shall cause to be delivered to
Administrative Agent, as soon as available, but in no event later than one hundred twenty
(120) days after Guarantor’s fiscal year end, a current financial statement (including,
without limitation, a balance sheet, and an income and expense statement) signed by
Guarantor together with any other financial information including, without limitation,
quarterly financial statements, annual financial statements, cash flow projections, and
other financial information reasonably requested



46









 







by Administrative Agent for the Guarantor. Within forty-five (45) days after the end of
each calendar quarter, Borrower shall also cause to be delivered to Administrative Agent
quarterly financial statements and other financial information regarding Guarantor as may be
reasonably requested by Administrative Agent. In addition to the foregoing statements,
Guarantor shall deliver to Administrative Agent a Compliance Certificate (in form and
substance reasonably acceptable to Administrative Agent), as required by Section 6.2(e) of
the Guaranty, at the same time the financial statements are delivered to Administrative
Agent pursuant to this section (c), and any and all financial information and statements and
other documents or items reasonably required by Administrative Agent to support or evidence
the statements contained in such Compliance Certificate




     (d) Other Information. Upon Administrative Agent’s request, Borrower shall also deliver
to Administrative Agent such other financial information regarding Borrower, Guarantor,
Indemnitor or any other Persons in any way obligated on the Loan as Administrative Agent may
reasonably specify. If audited financial information is prepared for Borrower or Guarantor,
Borrower shall, subject to Requirements of Law, deliver to Administrative Agent copies of
that information within fifteen (15) days of its final preparation. Except as otherwise
agreed to by Administrative Agent, all such financial information shall be prepared in
accordance with generally accepted accounting principles.



     11.2 BOOKS AND RECORDS. Borrower shall maintain complete books of account and other records for
the Property and for disbursement and use of the proceeds of the Loan, and the same shall be
available for inspection and copying by Administrative Agent upon reasonable prior notice.



     11.3 LEASING REPORTS. Borrower shall deliver to Administrative Agent, within forty-five (45)
days after the end of each calendar quarter, rent rolls, leasing schedules and reports and/or such
other leasing information as Administrative Agent shall reasonably request with respect to the
Property, each in form and substance satisfactory to Administrative Agent, for the quarter then
ended.



     11.4 OPERATING STATEMENTS FOR PROPERTY. Until such time as the Loan is paid in full, Borrower
shall deliver to Administrative Agent not later than forty-five (45) days after the end of each
calendar quarter an “Operating Statement” which shows in detail the amounts and sources of
Operating Revenues received by or on behalf of Borrower and the amounts and purposes of Operating
Expenses paid by or on behalf of Borrower with respect to the Property for the previous quarter and
for the current year to date.



     11.5 KNOWLEDGE OF DEFAULT; ETC. Borrower shall promptly, upon obtaining knowledge thereof,
report in writing to Administrative Agent the occurrence of (i) any Default or (ii) the occurrence
or existence of an event or condition which, with the giving of notice or the lapse of time, or
both, would constitute a Default. In the case of clause (ii) of the preceding sentence, such
notice shall include, as applicable, the affirmative steps which Borrower has taken or intends to
take during the applicable cure period in order to avoid the occurrence of a Default with respect
to the subject event, circumstance or condition.



     11.6 LITIGATION, ARBITRATION OR GOVERNMENT INVESTIGATION. Borrower shall promptly, upon
obtaining knowledge thereof, report in writing to Administrative Agent, (i) the institution of, or
threat of, any material proceeding against or affecting Borrower or the Property, including any
eminent domain or other condemnation proceedings affecting the Property, or (ii) any material
development in any proceeding already disclosed, which, in either case, has a material adverse
effect on Borrower or the Property, which notice shall contain such information as may be
reasonably available to Borrower to enable Administrative Agent and its counsel to evaluate such
matters.



     11.7 ENVIRONMENTAL NOTICES. Borrower shall notify Administrative Agent, in writing, as soon as
practicable, and in any event within ten (10) days after Borrower’s learning thereof, of any notice
required pursuant to Section 9.2(c).



47









 





     11.8 CERTIFICATE OF BORROWER. Together with each delivery of any Operating Statement or
financial statement pursuant to this Article 11, Borrower shall provide the certificate of its
chief financial officer or other authorized signatory that such person has reviewed the terms of
this Agreement and the other Loan Documents, and has made a review in reasonable detail of the
transactions and condition of Borrower during the accounting period covered by such Operating
Statements or financial statements, and that such review has not disclosed the existence during or
at the end of such accounting period, and that such person does not have knowledge of the existence
as of the date of such certificate, of any condition or event which constitutes a Default or a
Potential Default, or, if any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action has been taken, is being taken and is proposed to be
taken with respect thereto. The certification of such signatory shall expressly state that such
signatory shall have no personal liability for the statements and certification set forth therein.



     11.9 OTHER INFORMATION. From time to time, upon Administrative Agent’s delivery to Borrower of
at least ten (10) days’ prior written notice, such other information with regard to Borrower,
principals of Borrower, any Guarantor, or the Property, as Administrative Agent may reasonably
request in writing.



     11.10 FORM; WARRANTY. Borrower agrees that all financial statements to be delivered to
Administrative Agent pursuant to this Article shall: (a) be complete and correct; (b) present
fairly the financial condition of the party; (c) disclose all liabilities that are required to be
reflected or reserved against; and (d) be prepared in accordance with modified accrual basis
accounting principles, consistently applied. Notwithstanding the foregoing, the calculation of
liabilities shall NOT include any fair value adjustments to the carrying value of liabilities to
record such liabilities at fair value pursuant to electing the fair value option election under
FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value Option for Financial Assets and
Financial Liabilities) or other FASB standards allowing entities to elect fair value option for
financial liabilities. Therefore, the amount of liabilities shall be the historical cost basis,
which generally is the contractual amount owed adjusted for amortization or accretion of any
premium or discount. Borrower acknowledges and agrees that Administrative Agent may request and
obtain additional information from third parties regarding any of the above, including, without
limitation, credit reports. By its execution of this Agreement, Borrower shall be deemed to warrant
and represent that, as of the date of delivery of any such financial statement, there has been no
change in financial condition which would have a material adverse change, nor have any assets or
properties been sold, transferred, assigned, mortgaged, pledged or encumbered since the date of
such financial statement, except as disclosed by Borrower in writing delivered to Administrative
Agent. Borrower agrees that all rent rolls and other information to be delivered to Administrative
Agent pursuant to this Article shall not contain any misrepresentation or omission of a material
fact.



ARTICLE 12. DEFAULTS AND REMEDIES




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




     (a) Monetary. Borrower’s failure to pay any sums payable under the Notes, the Fee
Letter or any of the other Loan Documents within five (5) days of the date such sums are
due; provided, however, Borrower shall not be entitled to any grace period upon the maturity
of the Loan (i.e., it shall be an immediate Default if Borrower fails to repay in full all
indebtedness outstanding under the Notes and other Loan Documents on the Maturity Date); or




     (b) Performance of Obligations. Borrower’s failure to perform any obligation, covenant
or condition (other than those in Section 12.1(a) above or which are specifically addressed
as a Default under this Article 12 or any of the other Loan Documents or Other Related
Documents) under any of the Loan Documents or Other Related Documents and such failure
continues for thirty (30) days after receipt by Borrower of written notice and demand for
performance of such obligation; provided, however, in the event Borrower has
commenced and is diligently and in good faith working to cure such matter, Borrower shall be
allowed an additional 30 days to complete the cure of such matter and provided,
further, and notwithstanding the



48









 







foregoing, if a cure period is specifically provided for the remedy of such failure
elsewhere in this Article 12 or any other Loan Document, such cure period shall control over
the provisions of this Section 12.1(b) and Borrower’s failure to perform will not constitute
a Default until such date as the specified cure period expires; or




     (c) Construction; Use. (i) There is any defective workmanship in constructing the
Additional Improvements or the Additional Improvements are not constructed in accordance
with applicable Requirements of Law, and Borrower fails to remedy the same to Administrative
Agent’s satisfaction within thirty (30) days of Administrative Agent’s written demand to do
so; provided, however, in the event Borrower has commenced and is diligently
and in good faith working to cure such matter, Borrower shall be allowed an additional 30
days to complete the cure of such matter, or (ii) there is a cessation of construction of
the Additional Improvements prior to Completion for a continuous period of more than thirty
(30) days (except as caused by an event of force majeure); or (iii) the construction or
leasing of any material portion of the Property in accordance with the Loan Documents is
prohibited or enjoined for a continuous period of more than sixty (60) days; or (iv)
utilities or other public services necessary for the full occupancy and utilization of the
Property are curtailed for a continuous period of more than thirty (30) days (except as
caused by an event of force majeure); or




     (d) Attachment; Condemnation’ Liens. (i) the condemnation, seizure or appropriation of,
or occurrence of an uninsured casualty with respect to any material portion of the Property;
or (ii) the sequestration or attachment of, or any levy or execution upon any of the
Property, any other collateral provided by Borrower under any of the Loan Documents, any
monies in the Accounts, or any substantial portion of the other assets of Borrower, which
sequestration, attachment, levy or execution is not released, expunged or dismissed prior to
the earlier of thirty (30) days or the sale of the assets affected thereby; or (iii) subject
to Borrower’s right to contest mechanic’s and materialmen’s liens in good faith in
accordance with Section 15.8 hereof, the recording or service upon Administrative Agent or
any Lender of any claim of lien against the Property and the continuance of such claim of
lien for (x) thirty (30) days after the date Borrower receives notice of such lien or (y)
twenty (20) calendar days after Administrative Agent’s demand, whichever occurs first,
without such lien being bonded over, discharged, satisfied or provision for payment being
made by Borrower in a manner reasonably satisfactory to Administrative Agent; or




     (e) Representations and Warranties. (i) The failure of any representation or warranty
of Borrower in any of the Loan Documents or the Guarantor in the Guaranty and the
continuation of such failure for more than ten (10) days after written notice to Borrower
from Administrative Agent requesting that Borrower cure such failure; or




     (f) Bankruptcy; Insolvency; Dissolution. (i) The filing by Borrower, any Guarantor, any
partner or member of Borrower, or any Indemnitor of a petition for relief under the
Bankruptcy Code, or under any other present or future state or federal law regarding
bankruptcy, reorganization or other debtor relief law; (ii) the filing against Borrower, any
Guarantor, any partner or member of Borrower, or any Indemnitor of an involuntary proceeding
under the Bankruptcy Code or other debtor relief law and the failure of Borrower to effect a
full dismissal of such proceeding within thirty (30) days after the date of filing such
proceeding ; (iii) a general assignment by Borrower, any Guarantor, any partner or member of
Borrower, or any Indemnitor for the benefit of creditors; or (iv) Borrower, any Guarantor,
any partner or member of Borrower, or any Indemnitor applying for, or the appointment of, a
receiver, trustee, custodian or liquidator of Borrower or any of its property; or




     (g) Change in Management or Control. In the event that The Howard Hughes Corporation is
no longer a guarantor of the Loan or is no longer in Control of Borrower (other than by
reason of a Permitted Equity Transfer or a Transfer of the Property consummated in
accordance with Article 13 of this Agreement), the occurrence of any material management or
organizational change in Borrower or Guarantor or in the partners, venturers or members of
Borrower or Guarantor, including, without limitation, any partnership, joint venture or
member



49









 







dispute which Administrative Agent determines, in its sole and absolute discretion, shall
have a material adverse effect on the Loan, on the Property, or on the ability of Borrower
or Guarantor or their partners, venturers or members to perform their obligations under the
Loan Documents; or




     (h) Loss of Priority. The failure at any time of the Mortgage to be a valid first Lien
upon the Property or any portion thereof (subject to Permitted Liens), other than as a
result of any release or reconveyance of the Mortgage with respect to all or any portion of
the Property pursuant to the terms and conditions of this Agreement; or




     (i) Hazardous Materials. The discovery of any significant Hazardous Materials in, on or
about the Property subsequent to the Effective Date, and Borrower’s failure to (x) promptly
take corrective action in accordance with the Loan Documents and Other Related Documents,
and (y) cure such matter within thirty (30) days after written notice from Administrative
Agent (so that (A) such Hazardous Materials are not at levels on the Property in violation
of applicable Hazardous Materials Laws or (B) all remedial action required to be undertaken
by Borrower under applicable Hazardous Materials Laws has been performed); provided, further
(1) so long as Borrower is diligently pursuing to cure such matter without delay and is not
otherwise in Default under this Agreement, such period shall be extended as reasonably
necessary to permit Borrower to cure such matter, but in any event, such corrective action
shall be completed and the matter cured within ninety (90) days after such written notice
from Administrative Agent and (2) Administrative Agent may, at its option and in its sole
discretion, further extend the cure period as Administrative Agent deems necessary to allow
Borrower to complete such cure. Any such Hazardous Materials shall be “significant” for
this purpose if said Hazardous Materials, in Administrative Agent’s reasonable discretion,
have a materially adverse impact on the value of the Property; or




     (j) Prohibited Transfers. The occurrence of any Prohibited Property Transfer or
Prohibited Equity Transfer; or




     (k) Default Under Unsecured Indemnity Agreement. The occurrence of a default under that
certain Hazardous Materials Indemnity Agreement (Unsecured) executed by Indemnitor in favor
of Administrative Agent, and dated of even date with this Agreement that continues for a
period of thirty (30) days after written notice from Administrative Agent, including without
limitation Indemnitor’s failure to perform any covenant, condition, or obligation
thereunder; or




     (l) Default Under Guaranty. The occurrence of a default under the Guaranty, or any other
guaranty now or hereafter executed in connection with the Loan, including without limitation
any Guarantor’s failure to perform any covenant, condition, or obligation thereunder that
continues for a period of thirty (30) days after written notice from Administrative Agent;
provided, however, that no additional cure period (beyond any cure periods provided therein)
shall be provided upon a breach of the financial covenants set forth in the Limited
Guaranty, and a breach of any of said financial covenants shall constitute an immediate
Default under the Limited Guaranty and this Agreement; provided, however, in the event that
(x) Guarantor is not in compliance with the covenant regarding its required Minimum Liquid
Assets (as defined in the Limited Guaranty), and (y) either Guarantor deposits funds into an
account with Administrative Agent or makes a principal prepayment to Administrative Agent as
provided in Section 6.2(b) of the Limited Guaranty in lieu of maintaining the required
Minimum Liquid Assets, then such event shall not constitute a Default hereunder; or




     (m) Default Under Swap Agreement; Voluntary Termination. Voluntary termination by
Borrower of the Swap Contract, or if Wells Fargo is not the counterparty, the voluntary
termination by Borrower of the interest rate swap transaction approved by Administrative
Agent in connection with the Loan, and for which Borrower has not simultaneously provided a
new interest rate swap agreement satisfactory to Administrative Agent; the occurrence of a
default by Borrower or a termination event with respect to Borrower under the Swap Contract
that extends beyond any




50











 






notice and cure period provided therein, or if Wells Fargo is not the counterparty,
under the interest rate swap transaction approved by Administrative Agent in connection with
the Loan.



     12.2 ACCELERATION UPON DEFAULT; REMEDIES. Upon the occurrence of any Default specified in
this Article 12, Requisite Lenders may, at their sole option, declare all sums owing to Lenders
under the Notes, this Agreement and the other Loan Documents immediately due and payable. Upon
such acceleration, Administrative Agent may, and at the direction of Requisite Lenders, shall
(unless such action could, in Administrative Agent’s opinion, result in significant impairment of
the ability of all Lenders to recover any further amounts in respect of the Loan under applicable
laws), in addition to all other remedies permitted under this Agreement and the other Loan
Documents and at law or equity, apply any sums in the Accounts to the sums owing under the Loan
Documents and any and all obligations of Lenders to fund further disbursements under the Loan shall
terminate.



     12.3 DISBURSEMENTS TO THIRD PARTIES. Upon the occurrence of a Default occasioned by
Borrower’s failure to pay money to a third party as required by this Agreement, Administrative
Agent may but shall not be obligated to make such payment from the Loan proceeds, or other funds of
Lenders or any amounts in deposit accounts maintained by Borrower with Administrative Agent. If
such payment is made from proceeds of the Loan, Borrower shall immediately deposit with
Administrative Agent, upon written demand, an amount equal to such payment. If such payment is
made from funds of Lenders, Borrower shall immediately repay such funds upon written demand of
Administrative Agent. In either case, the Default with respect to which any such payment has been
made by Administrative Agent or Lenders shall not be deemed cured until such deposit or repayment
(as the case may be) has been made by Borrower to Administrative Agent.



     12.4 ADMINISTRATIVE AGENT’S COMPLETION OF CONSTRUCTION. Upon the occurrence of a Default,
Administrative Agent may, upon five (5) days prior written notice to Borrower, and with or without
legal process, take possession of the Property, remove Borrower and all agents, employees and
contractors of Borrower from the Property, complete any construction then in progress. For this
purpose, Borrower irrevocably appoints Administrative Agent as its attorney-in-fact, which agency
is coupled with an interest. As attorney-in-fact, Administrative Agent may, in Borrower’s name,
take or omit to take any action Administrative Agent may deem appropriate, including, without
limitation, exercising Borrower’s rights under the Loan Documents and all contracts concerning the
Property.



     12.5 ADMINISTRATIVE AGENT’S CESSATION OF CONSTRUCTION. If Administrative Agent determines
at any time in its reasonable discretion that the Additional Improvements are not being constructed
in accordance with the all Requirements of Law, Administrative Agent may immediately cause all
construction to cease on any of the Additional Improvements affected by the condition of
nonconformance. Borrower shall thereafter not allow any construction work, other than corrective
work, to be performed on any of the Additional Improvements affected by the condition of
nonconformance until such time as Administrative Agent notifies Borrower in writing that the
nonconforming condition has been corrected.



     12.6 REPAYMENT OF FUNDS ADVANCED. Any funds expended by Administrative Agent or any Lender
in the exercise of its rights or remedies under this Agreement and the other Loan Documents shall
be payable to Administrative Agent upon demand, together with interest at the rate applicable to
the principal balance of the Loan from the date the funds were expended.



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



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ARTICLE 13. DUE ON SALE/ENCUMBRANCE




     13.1 PROPERTY TRANSFERS.




     (a) Prohibited Property Transfers. Borrower shall not cause or permit any Transfer
of all or any part of or any direct or indirect legal or beneficial interest in the Property
or the Collateral (collectively, a “Prohibited Property Transfer”), including, without
limitation, (i) a Lease of all or a material part of the Property for any purpose other than
actual occupancy by a space tenant pursuant to an Approved Lease; and (ii) the Transfer of
all or any part of Borrower’s right, title and interest in and to any Lease or lease
payments.




     (b) Permitted Transfers. Notwithstanding the foregoing, none of the following
Transfers shall be deemed to be a Prohibited Property Transfer: (i) a Transfer which is
expressly permitted under this Agreement; and (ii) an Approved Lease which is permitted
under the terms of the Loan Documents.



     13.2 EQUITY TRANSFERS.




     (a) Prohibited Equity Transfers. Except as expressly permitted in this Agreement,
Borrower shall not cause or permit any Transfer of any direct or indirect legal or
beneficial interest in a Restricted Party (collectively, a “Prohibited Equity Transfer”),
including without limitation, (i) if a Restricted Party is a corporation, any merger,
consolidation or other Transfer of such corporation’s stock or the creation or issuance of
new stock in one or a series of transactions; (ii) if a Restricted Party is a limited
partnership, limited liability partnership, general partnership or joint venture, any merger
or consolidation or the change, removal, resignation or addition of a general partner or the
Transfer of the partnership interest of any general or limited partner or any profits or
proceeds relating to such partnership interests or the creation or issuance of new limited
partnership interests; (iii) if a Restricted Party is a limited liability company, any
merger or consolidation or the change, removal, resignation or addition of a managing member
or non-member manager (or if no managing member, any member) or any profits or proceeds
relating to such membership interest, or the Transfer of a non-managing membership interest
or the creation or issuance of new non-managing membership interests; or (iv) if a
Restricted Party is a trust, any merger, consolidation or other Transfer of any legal or
beneficial interest in such Restricted Party or the creation or issuance of new legal or
beneficial interests.




     (b) Permitted Equity Transfers. Notwithstanding the foregoing, none of the
following Transfers shall be deemed to be a Prohibited Equity Transfer: (i) a Transfer by a
natural person who is a member, partner or shareholder of a Restricted Party to a revocable
inter vivos trust having such natural person as both trustor and trustee of such trust and
one or more immediate family members of such natural person as the sole beneficiaries of
such trust; (ii) a Transfer by devise or descent or by operation of law upon the death of a
member, partner or shareholder of a Restricted Party where such Transfer does not result in
a Default under this Agreement; or (iii) transfers of interests in Parent, provided that
after giving effect to such transfers in Parent, (x) the Parent continues to own 100% of the
interests in each of the other Borrowers and (y) a majority of the equity interests in
Parent continue to be indirectly owned by Guarantor and Parent remains 100% under the
Control of Guarantor or an Affiliate of Guarantor. In addition, notwithstanding any
provision in this Agreement to the contrary, none of the following Transfers shall be deemed
to be a Prohibited Equity Transfer: the issuance, redemption, sale, exchange, mortgage,
pledge, hypothecation, assignment, encumbrance, conveyance, transfer or other disposition
(each, an “HHC Share Transfer”) of the equity interests (the “HHC Shares”) in Guarantor (or
a successor by a merger pursuant to a Plan Sponsor Acquisition as hereinafter defined) so
long as the HHC Share Transfer does not result in or cause a Change of Control (as
hereinafter defined) of Guarantor (or a successor by a merger pursuant to a Plan Sponsor
Acquisition). For purposes of this Section, a “Change of Control” shall occur when: (i)
one Person (hereinafter defined) or group of affiliated Persons acquires more than 33% of
the HHC Shares in one or a series of transactions, provided, however, that the acquisition
by a Plan Sponsor (as hereinafter defined) of more than 33% of the HHC Shares in one or a
serious of transactions (a “Plan Sponsor



52









 






Acquisition”) shall not constitute a Change in Control; or (ii) the individuals comprising
the Board of Directors of Guarantor (or a successor by merger pursuant to a Plan Sponsor
Acquisition), as the same exists for the twelve (12) month period immediately prior to the
HHC Share Transfer, fail to represent a majority of the Board of Directors of Guarantor (or
a successor by merger pursuant to a Plan Sponsor Acquisition) as of the date of completion
of the HHC Share Transfer and for a period of six (6) months following the HHC Share
Transfer, provided however, that such a change in the majority of the Board of Directors of
Guarantor in connection with a Plan Sponsor Acquisition shall not constitute a Change in
Control. For purposes of determining the occurrence of (ii) above, the following shall be
expressly excluded: any change in directors resulting from (w) the death or incapacity of
any director and/or (x) the resignation or removal of any director for reasons unrelated to
an HHC Share Transfer, provided any replacement director has been approved in the manner
required by the governing documents of Guarantor in effect immediately prior to the date of
the HHC Share Transfer. For purposes of this Section 13.2, “Plan Sponsor” means (i)
Brookfield Asset Management, Inc., (ii) Fairholme Funds, Inc., (iii) Pershing Square Capital
Management, L.P. and/or (iv) The Blackstone Group LP and any affiliate of any of the
foregoing. Borrower shall give written notice to Administrative Agent within 30 days after
Borrower receives actual notice of the consummation of a Plan Sponsor Acquisition and shall
provide Administrative Agent with such documents and information as Administrative Agent may
reasonably require so that Administrative Agent can confirm that the transaction qualifies
as a Plan Sponsor Acquisition. In addition, notwithstanding any provision to the contrary,
each of Guarantor and The Howard Research and Development Corporation, a Maryland
corporation (“HRDC”) may pledge, hypothecate and encumber its assets as each may determine.
A Person shall mean any person or entity. Prohibited Equity Transfers do not include
issuance, redemptions, sales, conveyances, exchanges, mortgages, pledges, hypothecations,
assignments, encumbrances, conveyances, transfers or other dispositions in Persons having a
direct or indirect interest in Guarantor (or successor by merger pursuant to a Plan Sponsor
Acquisition).




     (c) SPE Status. Nothing contained in this Section shall be construed to permit any
Transfer which would result in a breach of any representation, warranty or covenant of
Borrower under Section 8.1 of this Agreement.



     13.3 CERTIFICATES OF OWNERSHIP. Borrower shall deliver to Administrative Agent, at any time
and from time to time, not more than five (5) days after Lender’s written request therefor, a
certificate, in form acceptable to Administrative Agent, signed and dated by Borrower, listing the
names of all Persons holding direct or indirect legal or beneficial interests in the Property or
any Borrower or Non-Borrower Mortgagor and the type and amount of each such interest;
provided, however, in no event shall Borrower be obligated to provide such
information with respect to the ownership of Guarantor.



ARTICLE 14. THE ADMINISTRATIVE AGENT; INTERCREDITOR PROVISIONS




     14.1 APPOINTMENT AND AUTHORIZATION.




     (a) Each Lender hereby irrevocably appoints and authorizes the Administrative Agent to take
such action as contractual representative on such Lender’s behalf and to exercise such
powers under this Agreement, the other Loan Documents and Other Related Documents as are
specifically delegated to the Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the foregoing,
each Lender authorizes and directs the Administrative Agent to enter into the Loan Documents
and Other Related Documents for the benefit of the Lenders.




     (b) Each Lender hereby agrees that, except as otherwise set forth herein, any action taken
by the Requisite Lenders in accordance with the provisions of this Agreement, the Loan
Documents or the Other Related Documents, and the exercise by the Requisite Lenders of the
powers set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders.



53









 






     (c) Nothing herein shall be construed to deem the Administrative Agent a trustee or
fiduciary for any Lender or to impose on the Administrative Agent duties or obligations
other than those expressly provided for herein. Without limiting the generality of the
foregoing, the use of the terms “Administrative Agent”, “Agent”, “agent” and similar terms
in the Loan Documents or Other Related Documents with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead, use of such terms is merely a matter
of market custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.




     (d) The Administrative Agent will also furnish to any Lender, upon the request of such
Lender, a copy (or, where appropriate, an original) of any document, instrument, agreement,
certificate or notice furnished to the Administrative Agent by the Borrower, any Loan Party
or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan
Document not already delivered to such Lender pursuant to the terms of this Agreement or any
such other Loan Document. In addition, the Administrative Agent will also furnish to each
Lender, promptly upon Administrative Agent’s receipt, copies of each of the financial
statements, certificates, notices and other documents received by Administrative Agent
pursuant to Article 11.




     (e) As to any matters not expressly provided for by the Loan Documents and Other Related
Documents (including, without limitation, enforcement or collection of any of Borrower’s
obligations hereunder), Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders (or all of the Lenders if explicitly required under any other
provision of this Agreement), and such instructions shall be binding upon all Lenders and
all holders of any of the obligations of Borrower; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall
not be required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to this Agreement or any other Loan Document or Requirements
of Law. Not in limitation of the foregoing, the Administrative Agent may exercise any right
or remedy it or the Lenders may have under any Loan Document upon the occurrence of a
Potential Default or Default unless the Requisite Lenders have directed the Administrative
Agent otherwise. Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative Agent acting
or refraining from acting under this Agreement, the other Loan Documents, or the Other
Related Documents in accordance with the instructions of the Requisite Lenders, or where
applicable, all the Lenders.



     14.2 WELLS FARGO AS LENDER. Wells Fargo, as a Lender, shall have the same rights and powers
under this Agreement and any other Loan Document as any other Lender and may exercise the same as
though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated, include Wells Fargo in each case in its individual capacity. Wells
Fargo and its affiliates may each accept deposits from, maintain deposits or credit balances for,
invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and
generally engage in any kind of business with the Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account therefor to the
other Lenders. Further, the Administrative Agent and any affiliate may accept fees and other
consideration from the Borrower for services in connection with this Agreement and otherwise
without having to account for the same to the other Lenders. The Lenders acknowledge that,
pursuant to such activities, Wells Fargo or its affiliates may receive information regarding the
Borrower, other loan parties, other subsidiaries and other Affiliates (including information that
may be subject to confidentiality obligations in favor of such Person) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to them.



     14.3 LOAN DISBURSEMENTS.




     (a) Promptly following receipt of a complete Application for Payment, Administrative Agent
shall send an electronic or other copy thereof to each other Lender and shall otherwise



54









 






notify each Lender of the proposed disbursement and the Funding Date (as such term is
defined in Exhibit C attached hereto). Each Lender shall make available to
Administrative Agent (or the funding bank or entity designated by Administrative Agent), the
amount of such Lender’s Pro Rata Share of such disbursement in immediately available funds
not later than the times designated in Section 14.3(b). Unless Administrative Agent shall
have been notified by any Lender not later than the close of business (San Francisco,
California time) on the Business Day immediately preceding the Funding Date in respect of
any disbursement that such Lender does not intend to make available to Administrative Agent
such Lender’s Pro Rata Share of such disbursement, Administrative Agent may assume that such
Lender shall make such amount available to Administrative Agent. If any Lender does not
notify Administrative Agent of its intention not to make available its Pro Rata Share of
such disbursement as described above, but does not for any reason make available to
Administrative Agent such Lender’s Pro Rata Share of such disbursement, such Lender shall
pay to Administrative Agent forthwith on demand such amount, together with interest thereon
at the Federal Funds Rate. In any case where a Lender does not for any reason make
available to Administrative Agent such Lender’s Pro Rata Share of such disbursement,
Administrative Agent, in its sole discretion, may, but shall not be obligated to, fund to
Borrower such Lender’s Pro Rata Share of such disbursement. If Administrative Agent funds
to Borrower such Lender’s Pro Rata Share of such disbursement and if such Lender
subsequently pays to Administrative Agent such corresponding amount, such amount so paid
shall constitute such Lender’s Pro Rata Share of such disbursement. Nothing in this Section
14.3(a) shall alter the respective rights and obligations of the parties hereunder in
respect of a Defaulting Lender or a Non-Pro Rata Advance.




     (b) Requests by Administrative Agent for funding by Lenders of disbursements will be made by
telecopy. Each Lender shall make the amount of its disbursement available to Administrative
Agent in Dollars and in immediately available funds, to such bank and account, in El
Segundo, California (to such bank and account in such other place) as Administrative Agent
may designate, not later than 11:00 A.M. (San Francisco time) on the Funding Date designated
by Administrative Agent with respect to such disbursement, but in no event earlier than two
(2) Business Days following Lender’s receipt of the applicable Application for Payment.




     (c) Nothing in this Section 14.3 shall be deemed to relieve any Lender of its obligation
hereunder to make its Pro Rata Share of disbursements on any Funding Date, nor shall
Administrative Agent or any Lender be responsible for the failure of any other Lender to
perform its obligations to make any disbursement hereunder, and the Commitment of any Lender
shall not be increased or decreased as a result of the failure by any other Lender to
perform its obligation to make a disbursement.



     14.4 DISTRIBUTION AND APPORTIONMENT OF PAYMENTS; DEFAULTING LENDERS.




     (a) Subject to Section 14.4(b) below, payments actually received by Administrative Agent for
the account of Lenders shall be paid to them promptly after receipt thereof by
Administrative Agent, but in any event within two (2) Business Days, provided that
Administrative Agent shall pay to Lenders interest thereon, at the lesser of (i) the Federal
Funds Rate and (ii) the rate of interest applicable to the Loan, from the Business Day
following receipt of such funds by Administrative Agent until such funds are paid in
immediately available funds to Lenders. All payments of principal, interest, and other
payments under the Loan Documents or Other Related Documents shall be allocated among such
of Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares in the
Loan or otherwise as provided herein or as separately agreed by Administrative Agent and any
Lender. Administrative Agent shall promptly distribute, but in any event within two (2)
Business Days, to each Lender at its primary address set forth on the appropriate signature
page hereof or on the Assignment and Assumption Agreement, or at such other address as a
Lender may request in writing, such funds as it may be entitled to receive, provided that
Administrative Agent shall in any event not be bound to inquire into or determine the
validity, scope or priority of any interest or entitlement of any Lender and may suspend all
payments and seek appropriate relief (including, without limitation, instructions from
Requisite



55









 






Lenders or all Lenders, as applicable, or an action in the nature of interpleader) in the
event of any doubt or dispute as to any apportionment or distribution contemplated hereby.
The order of priority herein is set forth solely to determine the rights and priorities of
Lenders as among themselves and may at any time or from time to time be changed by Lenders
as they may elect, in writing in accordance with this Agreement, without necessity of notice
to or consent of or approval by Borrower or any other Person. All payments or other sums
received by Administrative Agent for the account of Lenders shall not constitute property or
assets of the Administrative Agent and shall be held by Administrative Agent, solely in its
capacity as agent for itself and the other Lenders, subject to the Loan Documents and the
Other Related Documents.




     (b) Notwithstanding any provision hereof to the contrary, until such time as a Defaulting
Lender has funded its Pro Rata Share of a Protective Advance or prior Loan disbursements
which was previously a Non-Pro Rata Advance, or all other Lenders have received payment in
full (whether by repayment or prepayment) of the amounts due in respect of such Non-Pro Rata
Advance, all of the indebtedness and obligations owing to such Defaulting Lender hereunder
shall be subordinated in right of payment, as provided in the following sentence, to the
prior payment in full of all principal, interest and fees in respect of all Non-Pro Rata
Advances in which the Defaulting Lender has not funded its Pro Rata Share (such principal,
interest and fees being referred to as “Senior Loans”). All amounts paid by a Loan Party
and otherwise due to be applied to the indebtedness and obligations owing to the Defaulting
Lender pursuant to the terms hereof shall be distributed by Administrative Agent to the
other Lenders in accordance with their respective Pro Rata Shares of the Loan (recalculated
for purposes hereof to exclude the Defaulting Lender’s Pro Rata Share of the Loan), until
all Senior Loans have been paid in full. This provision governs only the relationship among
Administrative Agent, each Defaulting Lender, and the other Lenders; nothing hereunder shall
limit the obligations of any Loan Party under the Loan Documents and Other Related
Documents. The provisions of this section shall apply and be effective regardless of
whether a Default occurs and is then continuing, and notwithstanding (a) any other provision
of this Agreement to the contrary, (b) any instruction of any Loan Party as to its desired
application of payments or (c) the suspension of such Defaulting Lender’s right to vote on
matters which are subject to the consent or approval of Requisite Lenders or all Lenders.
Administrative Agent shall be entitled to (i) withhold or setoff, and to apply to the
payment of the defaulted amount and any related interest, any amounts to be paid to such
Defaulting Lender under this Agreement, and (ii) bring an action or suit against such
Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. In addition, the Defaulting Lender shall indemnify, defend and hold
Administrative Agent and each of the other Lenders harmless from and against any and all
liabilities and costs, plus interest thereon at the Default Rate as set forth in the Notes,
which they may sustain or incur by reason of or as a direct consequence of the Defaulting
Lender’s failure or refusal to perform its obligations under this Agreement.



     14.5 PRO RATA TREATMENT. Except to the extent otherwise provided herein: (a) each
borrowing from Lenders shall be made from the Lenders, each payment of the fees shall be made for
the account of the Lenders, and each termination or reduction of the amount of the Commitments
pursuant to this Agreement shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment or prepayment of
principal of the Loan shall be made for the account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Loan held by them, provided that if immediately prior to
giving effect to any such payment in respect of the Loan the outstanding principal amount of the
Loan shall not be held by the Lenders pro rata in accordance with their respective Commitments in
effect at the time the Loan was made, then such payment shall be applied to the Loan in such manner
as shall result, as nearly as is practicable, in the outstanding principal amount of the Loan being
held by the Lenders pro rata in accordance with their respective Commitments; and (c) each payment
of interest on the Loan shall be made for the account of the Lenders pro rata in accordance with
the amounts of interest on the Loan then due and payable to the respective Lenders.



56









 





     14.6 SHARING OF PAYMENTS, ETC. Lenders agree among themselves that (i) with respect to all
amounts received by them which are applicable to the payment of the obligations of Borrower or
Guarantor under the Loan, equitable adjustment will be made so that, in effect, all such amounts
will be shared among them ratably in accordance with their Pro Rata Shares in the Loan, whether
received by voluntary payment, by counterclaim or cross action or by the enforcement of any or all
of such obligations, (ii) if any of them shall by voluntary payment or by the exercise of any right
of counterclaim or otherwise, receive payment of a proportion of the aggregate amount of such
obligations held by it which is greater than its Pro Rata Share in the Loan of the payments on
account of such obligations, the one receiving such excess payment shall purchase, without recourse
or warranty, an undivided interest and participation (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in such obligations owed to the others so that all
such recoveries with respect to such obligations shall be applied ratably in accordance with such
Pro Rata Shares; provided, that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases shall be rescinded and the purchase prices
paid for such participations shall be returned to that party to the extent necessary to adjust for
such recovery, but without interest except to the extent the purchasing party is required to pay
interest in connection with such recovery. Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 14.6 may, to the fullest extent
permitted by law, exercise all its rights of payment with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such participation.



     14.7 COLLATERAL MATTERS; PROTECTIVE ADVANCES.




     (a) Each Lender hereby authorizes the Administrative Agent, without the necessity of any
notice to or further consent from any Lender, from time to time prior to a Default, to take
any action with respect to any Collateral, Loan Documents or Other Related Documents which
may be necessary to perfect and maintain perfected the Liens upon the Collateral granted
pursuant to any of the Loan Documents or Other Related Documents.




     (b) The Lenders hereby authorize the Administrative Agent, at its option and in its
discretion, to release any Lien granted to or held by the Administrative Agent upon any
Collateral (i) upon termination of the Commitments and indefeasible payment and satisfaction
in full of all of obligations of Borrower hereunder; (ii) as expressly permitted by, but
only in accordance with, the terms of the applicable Loan Document; or (iii) if approved,
authorized or ratified in writing by all of the Lenders. Upon request by the Administrative
Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority
to release particular types or items of Collateral pursuant to this Section.




     (c) Upon any sale and transfer of Collateral which is expressly permitted pursuant to the
terms of this Agreement, the Administrative Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be necessary to evidence the
release of the Liens granted to the Administrative Agent for the benefit of the Lenders
herein or pursuant hereto upon the Collateral that was sold or transferred;
provided, however, that (i) the Administrative Agent shall not be required
to execute any such document on terms which, in the Administrative Agent’s opinion, would
expose the Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty and (ii) such
release shall not in any manner discharge, affect or impair the obligations of Borrower or
any Liens upon (or obligations of the Borrower or any other Loan Party in respect of) all
interests retained by the Borrower or any other Loan Party, including (without limitation)
the proceeds of such sale or transfer, all of which shall continue to constitute part of the
Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with
respect to any of the Collateral, the Administrative Agent shall be authorized to deduct all
of the expenses reasonably incurred by the Administrative Agent from the proceeds of any
such sale, transfer or foreclosure.




     (d) The Administrative Agent shall have no obligation whatsoever to the Lenders or to any
other Person to assure that the Collateral exists or is owned by the Borrower or any other
Loan Party or is cared for, protected or insured or that the Liens granted to the
Administrative Agent herein or pursuant hereto have been properly or sufficiently or
lawfully created, perfected,



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protected or enforced or are entitled to any particular priority, or to exercise or to
continue exercising at all or in any manner or under any duty of care, disclosure or
fidelity any of the rights, authorities and powers granted or available to the
Administrative Agent in this Section or in any of the Loan Documents or Other Related
Documents, it being understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, the Administrative Agent may act in any manner it may
deem appropriate, in its sole discretion, given the Administrative Agent’s own interest in
the Collateral as one of the Lenders and that the Administrative Agent shall have no duty or
liability whatsoever to the Lenders, except to the extent resulting from its gross
negligence or willful misconduct.




     (e) The Administrative Agent may make, and shall be reimbursed by the Lenders (in accordance
with their Pro Rata Shares) to the extent not reimbursed by the Borrower for, Protective
Advances during any one calendar year with respect to any Property that is Collateral up to
the sum of (i) amounts expended to pay real estate taxes, assessments and governmental
charges or levies imposed upon such Property; (ii) amounts expended to pay insurance
premiums for policies of insurance related to such Property; and (iii) $500,000. Protective
Advances in excess of said sum during any calendar year for any Property that is Collateral
shall require the consent of the Requisite Lenders. The Borrower agrees to pay on demand
all Protective Advances.




     (f) Each Lender agrees that it will not take any action, nor institute any actions or
proceedings, against Borrower or any other Loan Party under the Loan Documents or the Other
Related Documents with respect to exercising claims against or rights in the Collateral
without the written consent of Requisite Lenders.



     14.8 POST-FORECLOSURE PLANS. If all or any portion of the Collateral is acquired by the
Administrative Agent as a result of a foreclosure or the acceptance of a deed or assignment in lieu
of foreclosure, or is retained in satisfaction of all or any part of the obligations of Borrower
hereunder, the title to any such Collateral, or any portion thereof, shall be held in the name of
the Administrative Agent or a nominee or subsidiary of the Administrative Agent, as agent, for the
ratable benefit of all Lenders. The Administrative Agent shall prepare a recommended course of
action for such Collateral (a “Post-Foreclosure Plan”), which shall be subject to the approval of
the Requisite Lenders. In accordance with the approved Post-Foreclosure Plan, the Administrative
Agent shall manage, operate, repair, administer, complete, construct, restore or otherwise deal
with the Collateral acquired, and shall administer all transactions relating thereto, including,
without limitation, employing a management agent, leasing agent and other agents, contractors and
employees, including agents for the sale of such Collateral, and the collecting of rents and other
sums from such Collateral and paying the expenses of such Collateral. Actions taken by the
Administrative Agent with respect to the Collateral, which are not specifically provided for in the
approved Post-Foreclosure Plan or reasonably incidental thereto, shall require the written consent
of the Requisite Lenders by way of supplement to such Post-Foreclosure Plan. Upon demand therefor
from time to time, each Lender will contribute its share (based on its Pro Rata Share) of all
reasonable costs and expenses incurred by the Administrative Agent pursuant to the approved
Post-Foreclosure Plan in connection with the construction, operation, management, maintenance,
leasing and sale of such Collateral. In addition, the Administrative Agent shall render or cause
to be rendered to each Lender, on a monthly basis, an income and expense statement for such
Collateral, and each Lender shall promptly contribute its Pro Rata Share of any operating loss for
such Collateral, and such other expenses and operating reserves as the Administrative Agent shall
deem reasonably necessary pursuant to and in accordance with the approved Post-Foreclosure Plan.
To the extent there is net operating income from such Collateral (taking into account the funding
of any reasonably required operating reserves), the Administrative Agent shall, in accordance with
the approved Post-Foreclosure Plan, determine the amount and timing of distributions to the
Lenders. All such distributions shall be made to the Lenders in accordance with their respective
Pro Rata Shares. The Lenders acknowledge and agree that if title to any Collateral is obtained by
the Administrative Agent or its nominee, such Collateral will not be held as a permanent
investment. The Administrative Agent shall undertake to sell such Collateral, at such price and
upon such terms and conditions as the Requisite Lenders reasonably shall determine to be most
advantageous to the Lenders. Any purchase money mortgage or deed of trust taken in connection with



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the disposition of such Collateral in accordance with the immediately preceding sentence shall name
the Administrative Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case,
the Administrative Agent and the Lenders shall enter into an agreement with respect to such
purchase money mortgage or deed of trust defining the rights of the Lenders in the same Pro Rata
Shares as provided hereunder, which agreement shall be in all material respects similar to this
Article insofar as the same is appropriate or applicable.




     14.9 APPROVALS OF LENDERS. All communications from the Administrative Agent to any Lender
requesting such Lender’s determination, consent, approval or disapproval (a) shall be given in the
form of a written notice to such Lender, (b) shall be accompanied by a description of the matter or
issue as to which such determination, approval, consent or disapproval is requested, or shall
advise such Lender where information, if any, regarding such matter or issue may be inspected, or
shall otherwise describe the matter or issue to be resolved, (c) shall include, if reasonably
requested by such Lender and to the extent not previously provided to such Lender, written
materials provided to the Administrative Agent by the Borrower in respect of the matter or issue to
be resolved, and (d) shall include the Administrative Agent’s recommended course of action or
determination in respect thereof. Unless a Lender shall give written notice to the Administrative
Agent that it specifically objects to the recommendation or determination of the Administrative
Agent (together with a reasonable written explanation of the reasons behind such objection) within
ten (10) Business Days (or such lesser or greater period as may be specifically required under the
express terms of the Loan Documents or Other Related Documents) of receipt of such communication,
such Lender shall be deemed to have conclusively approved of or consented to such recommendation or
determination.



     14.10 NOTICE OF DEFAULTS. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Potential Default unless the Administrative Agent has
received written notice from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Potential Default and stating that such notice is a “notice
of default”. If any Lender (excluding the Lender which is also serving as the Administrative
Agent) becomes aware of any Default or Potential Default, it shall promptly send to the
Administrative Agent such a “notice of default”. Further, if the Administrative Agent receives
such a “notice of default,” the Administrative Agent shall give prompt notice thereof to the
Lenders.



     14.11 ADMINISTRATIVE AGENT’S RELIANCE, ETC. Notwithstanding any other provisions of this
Agreement, any other Loan Documents or the Other Related Documents, neither the Administrative
Agent nor any of its directors, officers, agents, employees or counsel shall be liable for any
action taken or not taken by it under or in connection with this Agreement or any other Loan
Document, INCLUDING ACTIONS WHICH MAY CONSTITUTE NEGLIGENCE OR ANY STRICT LIABILITY, EXCEPT FOR ITS
OR THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS OR THEIR DUTIES
EXPRESSLY SET FORTH HEREIN OR THEREIN. Without limiting the generality of the foregoing, the
Administrative Agent: may consult with legal counsel (including its own counsel or counsel for the
Borrower or any other Loan Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts. Neither the Administrative
Agent nor any of its directors, officers, agents, employees or counsel: (a) makes any warranty or
representation to any Lender or any other Person and shall be responsible to any Lender or any
other Person for any statement, warranty or representation made or deemed made by the Borrower, any
other Loan Party or any other Person in or in connection with this Agreement or any other Loan
Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or any other Loan Document or the
satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of
the Borrower or other Persons or inspect the property, books or records of the Borrower or any
other Person; (c) shall be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any
other instrument or document furnished pursuant thereto or any Collateral covered thereby or the
perfection or priority of any Lien in favor of the Administrative Agent on behalf of the Lenders in
any such Collateral; (d) shall have any liability in respect of any recitals, statements,
certifications, representations or warranties contained in any of the Loan Documents or Other
Related



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Documents or any other document, instrument, agreement, certificate or statement delivered in
connection therewith; and (e) shall incur any liability under or in respect of this Agreement or
any other Loan Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telephone, telecopy or electronic mail) believed by it to be genuine and
signed, sent or given by the proper party or parties. The Administrative Agent may execute any of
its duties under the Loan Documents or Other Related Documents by or through agents, employees or
attorneys-in-fact and shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.




     14.12 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Regardless of whether the transactions
contemplated by this Agreement, the other Loan Documents and Other Related Documents are
consummated, each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so) pro rata in
accordance with such Lender’s respective Pro Rata Share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against the Administrative Agent (in its capacity as Administrative Agent but not as a
“Lender”) in any way relating to or arising out of the Loan Documents or Other Related Documents,
any transaction contemplated hereby or thereby or any action taken or omitted by the Administrative
Agent under the Loan Documents and Other Related Documents (collectively, “Indemnifiable Amounts”),
INCLUDING ANY OF THE FOREGOING RESULTING FROM ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF
ADMINISTRATIVE AGENT OR ANY STRICT LIABILITY; provided, however, that no Lender shall be liable for
any portion of such Indemnifiable Amounts to the extent resulting from the Administrative Agent’s
gross negligence or willful misconduct as determined by a court of competent jurisdiction in a
final, non-appealable judgment provided, however, that no action taken in accordance with the
directions of the Requisite Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limiting the generality of the foregoing, each
Lender agrees to reimburse the Administrative Agent (to the extent not reimbursed by the Borrower
and without limiting the obligation of the Borrower to do so) promptly upon demand for its ratable
share of any out-of-pocket expenses (including the reasonable fees and expenses of the counsel to
the Administrative Agent) incurred by the Administrative Agent in connection with the preparation,
negotiation, execution, administration, or enforcement (whether through negotiations, legal
proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of
the parties under, the Loan Documents and Other Related Documents, any suit or action brought by
the Administrative Agent to enforce the terms of the Loan Documents and Other Related Documents
and/or collect any obligation of Borrower hereunder, any “lender liability” suit or claim brought
against the Administrative Agent and/or the Lenders, and any claim or suit brought against the
Administrative Agent and/or the Lenders arising under any Hazardous Materials Laws. Such
out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders on the request of
the Administrative Agent notwithstanding any claim or assertion that the Administrative Agent is
not entitled to indemnification hereunder upon receipt of an undertaking by the Administrative
Agent that the Administrative Agent will reimburse the Lenders if it is actually and finally
determined by a court of competent jurisdiction that the Administrative Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the Loan and all
other amounts payable hereunder or under the other Loan Documents or Other Related Documents and
the termination of this Agreement. If the Borrower shall reimburse the Administrative Agent for
any Indemnifiable Amount following payment by any Lender to the Administrative Agent in respect of
such Indemnifiable Amount pursuant to this Section, the Administrative Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.



     14.13 LENDER CREDIT DECISION, ETC. Each Lender expressly acknowledges and agrees that
neither the Administrative Agent nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or warranties to such Lender and
that no act by the Administrative Agent hereafter taken, including any review of the affairs of the
Borrower, any other Loan Party or Affiliate, shall be deemed to constitute any such representation
or warranty by the Administrative Agent to any Lender. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, any other Lender or counsel to
the Administrative Agent,



60









 




or any of their respective officers, directors, employees, agents or counsel, and based on the
financial statements of the Borrower, the other Loan Parties or Affiliates, and inquiries of such
Persons, its independent due diligence of the business and affairs of the Borrower, the other Loan
Parties and other Persons, its review of the Loan Documents and the Other Related Documents, the
legal opinions required to be delivered to it hereunder, the advice of its own counsel and such
other documents and information as it has deemed appropriate, made its own credit and legal
analysis and decision to enter into this Agreement and the transactions contemplated hereby. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent, any other Lender or counsel to the Administrative Agent or any of their respective officers,
directors, employees and agents, and based on such review, advice, documents and information as it
shall deem appropriate at the time, continue to make its own decisions in taking or not taking
action under the Loan Documents or Other Related Documents. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by the Borrower or any other
Loan Party of the Loan Documents or Other Related Documents or any other document referred to or
provided for therein or to inspect the properties or books of, or make any other investigation of,
the Borrower, any other Loan Party. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Administrative Agent under
this Agreement, any of the other Loan Documents or Other Related Documents, the Administrative
Agent shall have no duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate thereof which may
come into possession of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or other Affiliates. Each Lender acknowledges that the Administrative
Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only
acting as counsel to the Administrative Agent and is not acting as counsel to such Lender.




     14.14 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign at any time as
Administrative Agent under the Loan Documents and Other Related Documents by giving written notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Requisite Lenders shall
have the right to appoint a successor Administrative Agent which appointment shall, provided no
Default or Potential Default exists, be subject to the Borrower’s approval, which approval shall
not be unreasonably withheld or delayed (except that the Borrower shall, in all events, be deemed
to have approved each Lender and any of its Affiliates as a successor Administrative Agent). If no
successor Administrative Agent shall have been so appointed in accordance with the immediately
preceding sentence, and shall have accepted such appointment, within thirty (30) days after the
current Administrative Agent’s giving of notice of resignation, then the current Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a
Lender, if any Lender shall be willing to serve, and otherwise shall be an Eligible Assignee. Upon
the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the current Administrative Agent, and the current
Administrative Agent shall be discharged from its duties and obligations under the Loan Documents
and the Other Related Documents. After any Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Article 14. shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent
under the Loan Documents and the Other Related Documents. Notwithstanding anything contained
herein to the contrary, the Administrative Agent may assign its rights and duties under the Loan
Documents and the Other Related Documents to any of its Affiliates by giving the Borrower and each
Lender prior written notice.



     14.15 NO SET-OFFS. Each Lender hereby acknowledges that the exercise by any Lender of
offset, set-off, banker’s lien or similar rights against any deposit account or other property or
asset of Borrower, whether or not located in Hawaii or Texas, could result under certain laws in
significant impairment of the ability of all Lenders to recover any further amounts in respect of
the Loan. Therefore, each Lender agrees not to charge or offset any amount owed to it by Borrower
against any of the accounts, property or assets of Borrower or any of its affiliates held by such
Lender without the prior written approval of Administrative Agent and Requisite Lenders.



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ARTICLE 15. MISCELLANEOUS PROVISIONS




     15.1 INDEMNITY. BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS INDEMNITEES
FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS
AND LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES) WHICH
INDEMNITEES MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE PURPOSE TO WHICH BORROWER
APPLIES THE LOAN PROCEEDS; (B) THE FAILURE OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN
REQUIRED BY THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR ANY OTHER RELATED DOCUMENT; (C) ANY
FAILURE AT ANY TIME OF ANY OF BORROWER’S REPRESENTATIONS OR WARRANTIES TO BE TRUE AND CORRECT; OR
(D) ANY ACT OR OMISSION BY BORROWER, CONSTITUENT PARTNER OR MEMBER OF BORROWER, ANY CONTRACTOR,
SUBCONTRACTOR OR MATERIAL SUPPLIER, ENGINEER, ARCHITECT OR OTHER PERSON WITH RESPECT TO ANY OF THE
PROPERTY; PROVIDED, HOWEVER, BORROWER SHALL HAVE NO OBLIGATION TO DEFEND, INDEMNIFY
OR HOLD HARMLESS HEREUNDER ANY INDEMNITEE FOR ANY SUCH MATTER ARISING OUT OF OR ATTRIBUTABLE TO THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE. BORROWER SHALL IMMEDIATELY PAY TO THE
APPLICABLE INDEMNITEES UPON DEMAND ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST
FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE
PRINCIPAL BALANCE OF THE LOAN. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD
HARMLESS INDEMNITEES SHALL SURVIVE CANCELLATION OF THE NOTES AND THE RELEASE, RECONVEYANCE OR
PARTIAL RECONVEYANCE OF THE MORTGAGE.



     15.2 ADDITIONAL SECURITY INTERESTS. In the event that Wells Fargo is the counterparty to
any Swap Contract, then Borrower hereby grants and assigns to Administrative Agent, for the benefit
of Wells Fargo, a security interest, to secure payment and performance of all obligations, in all
of Borrower’s right, title and interest, now or hereafter acquired, to the payment of money from
Wells Fargo to Borrower under any swap, derivative, foreign exchange or hedge transaction or
arrangement (or similar transaction or arrangement howsoever described or defined) at any time
entered into between Borrower and Wells Fargo in connection with the Loan, including, without
limitation, the Swap Contract. In the event that a party other than Wells Fargo is the
counterparty to a Swap Contract, then Borrower hereby grants and assigns to Administrative Agent,
for the benefit of Lenders, a security interest, to secure payment and performance of all
obligations, in all of Borrower’s right, title and interest, now or hereafter acquired, to the
payment of money from Administrative Agent and Lenders to Borrower under any swap, derivative,
foreign exchange or hedge transaction or arrangement (or similar transaction or arrangement
howsoever described or defined) at any time entered into between Borrower and Administrative Agent
in connection with the Loan, including, without limitation, the Swap Contract.



     15.3 FORM OF DOCUMENTS. The form and substance of all documents, instruments, and forms of
evidence to be delivered to Administrative Agent under the terms of this Agreement, any of the
other Loan Documents or Other Related Documents shall be subject to Administrative Agent s approval
and shall not be modified, superseded or terminated in any respect without Administrative Agent’s
prior written approval.



     15.4 NO THIRD PARTIES BENEFITED. No Person other than Administrative Agent, Lenders and
Borrower and their permitted successors and assigns shall have any right of action under any of the
Loan Documents or Other Related Documents.



     15.5 NOTICES. All notices, demands, or other communications under this Agreement, the other
Loan Documents or the Other Related Documents shall be in writing and shall be delivered to the
appropriate party at the address set forth on the signature page of this Agreement (subject to
change from time to time by written notice to all other parties to this Agreement). All notices,
demands or other communications shall be considered as properly given if delivered personally or
sent by first class United States Postal Service mail, postage prepaid, except that notice of
Default may be sent by certified mail, return receipt requested, or by Overnight Express Mail or by
overnight commercial courier service,



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charges prepaid. Notices so sent shall be effective three (3) days after mailing, if mailed by
first class mail, and otherwise upon receipt; provided, however, that non-receipt
of any communication as the result of any change of address of which the sending party was not
notified or as the result of a refusal to accept delivery shall be deemed receipt of such
communication.




     15.6 ATTORNEY-IN-FACT. Borrower hereby irrevocably appoints and authorizes Administrative
Agent, as Borrower’s attorney-in-fact, which agency is coupled with an interest, following the
occurrence and during the existence of a Default, to execute and/or record in Administrative
Agent’s or Borrower’s name any notices, instruments or documents that Administrative Agent deems
appropriate to protect Lenders’ interest under any of the Loan Documents or Other Related
Documents.



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



     15.8 RIGHT OF CONTEST. Borrower may contest in good faith any claim, demand, levy or
assessment, including the amount or validity of any taxes and assessments on any of the Property
and any mechanic’s or materialmen’s lien claim by any Person other than Administrative Agent or
Lenders which would constitute a Default if: (a) Borrower pursues the contest diligently, in a
manner which Administrative Agent determines is not prejudicial to Administrative Agent or any
Lender, and does not impair the rights of Administrative Agent or any Lender under any of the Loan
Documents or Other Related Documents; and (b) if requested by Administrative Agent, Borrower
deposits with Administrative Agent any funds or other forms of assurance which Administrative Agent
in good faith determines from time to time appropriate to protect Administrative Agent and each
Lender from the consequences of the contest being unsuccessful. Borrower’s compliance with this
Section shall operate to prevent such claim, demand, levy or assessment from becoming a Default.



     15.9 RELATIONSHIP OF PARTIES. The relationship of Borrower, Administrative Agent and
Lenders under the Loan Documents and Other Related Documents is, and shall at all times remain,
solely that of borrower and lender, and Administrative Agent and Lenders neither undertake nor
assumes any responsibility or duty to Borrower or to any third party with respect to the Property,
except as expressly provided in this Agreement, the other Loan Documents and the Other Related
Documents.



     15.10 DELAY OUTSIDE LENDER’S CONTROL. No Lender or Administrative Agent shall be liable in
any way to Borrower or any third party for Administrative Agent’s or such Lender’s failure to
perform or delay in performing under the Loan Documents (and Administrative Agent or any Lender
may suspend or terminate all or any portion of Administrative Agent’s or such Lender’s obligations
under the Loan Documents) if such failure to perform or delay in performing results directly or
indirectly from, or is based upon, the action, inaction, or purported action, of any governmental
or local authority, or because of war, rebellion, insurrection, strike, lock-out, boycott or
blockade (whether presently in effect, announced or in the sole judgment of Administrative Agent or
such Lender deemed probable), or from any Act of God or other cause or event beyond Administrative
Agent’s or such Lender’s control.



     15.11 ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT. If any attorney is engaged by
Administrative Agent or any Lender to enforce or defend any provision of this Agreement, any of the
other Loan Documents or Other Related Documents, or as a consequence of any Default under the Loan
Documents or Other Related Documents, with or without the filing of any legal action or proceeding
or in connection with any appeal of a lower court decision, and including, without limitation, any
fees and expenses incurred in any bankruptcy proceeding of the Borrower, then Borrower shall
immediately pay to Administrative Agent or such Lender, upon demand, the amount of all attorneys’
fees and expenses and all costs incurred by Administrative Agent or such Lender in connection
therewith, together with interest thereon from the date of such demand until paid at the rate of
interest applicable to the principal balance of the Loan.



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     15.12 IMMEDIATELY AVAILABLE FUNDS. Unless otherwise expressly provided for in this
Agreement, all amounts payable by Borrower to Administrative Agent or any Lender shall be payable
only in United States Dollars, immediately available funds.



     15.13 AMENDMENTS AND WAIVERS.




     (a) Generally. Except as otherwise expressly provided in this Agreement, (i) any
consent or approval required or permitted by this Agreement or in any Loan Document to be
given by the Lenders may be given, (ii) any term of this Agreement or of any other Loan
Document may be amended, (iii) the performance or observance by the Borrower or any other
Loan Party of any terms of this Agreement or such other Loan Document may be waived, and
(iv) the continuance of any Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the written consent
of the Requisite Lenders (or the Administrative Agent at the written direction of the
Requisite Lenders), and, in the case of an amendment to any Loan Document, the written
consent of each Loan Party which is party thereto. Notwithstanding the previous sentence
and Section 15.13(b), the Administrative Agent, shall be authorized on behalf of all the
Lenders, without the necessity of any notice to, or further consent from, any Lender, to
waive the imposition of the late fees provided in Section 2.6(c), up to a maximum of three
(3) times per calendar year.




     (b) Unanimous Consent. Notwithstanding the foregoing, no amendment, waiver or
consent shall, unless in writing, and signed by all of the Lenders (or the Administrative
Agent at the written direction of the Lenders), do any of the following:




	 	(i)	 	increase the Commitments of the Lenders (excluding any increase
as a result of an assignment of Commitments permitted under Section 15.14) or
subject the Lenders to any additional obligations;
	 
	 	(ii)	 	reduce the principal of, or interest rates that have accrued or
that will be charged on the outstanding principal amount of, the Loan;
	 
	 	(iii)	 	reduce the amount of any fees payable to the Lenders
hereunder;
	 
	 	(iv)	 	postpone any date fixed for any payment of principal of, or
interest on, the Loan (including, without limitation, the Maturity Date) or for
the payment of fees or any other obligations of Borrower or Guarantor;
	 
	 	(v)	 	change the Pro Rata Shares (excluding any change as a result of
an assignment of Commitments permitted under Section 15.14);
	 
	 	(vi)	 	amend this Section or amend the definitions of the terms used
in this Agreement or the other Loan Documents insofar as such definitions
affect the substance of this Section;
	 
	 	(vii)	 	modify the definition of the term “Requisite Lenders” or
modify in any other manner the number or percentage of the Lenders required to
make any determinations or waive any rights hereunder or to modify any
provision hereof;
	 
	 	(viii)	 	release any Guarantor from its obligations under the Guaranty;
	 
	 	(ix)	 	waive a Default under Section 12.1(a); or
	 
	 	(x)	 	release or dispose of any Collateral unless released or
disposed of as permitted by, and in accordance with, Section 14.7, or in
Section 2.11 hereof with respect to a Property Release; or
	 
	 	(xi)	 	except as expressly provided in this Agreement, release any
Borrower from its obligations under the Loan Documents Other Related Documents;




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     (c) Amendment of Administrative Agent’s Duties, Etc. No amendment, waiver or
consent unless in writing and signed by the Administrative Agent, in addition to the Lenders
required hereinabove to take such action, shall affect the rights or duties of the
Administrative Agent under this Agreement, any of the other Loan Documents or Other Related
Documents. No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon and any amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Administrative Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
Any Default occurring hereunder shall continue to exist until such time as such Default is
waived in writing in accordance with the terms of this Section, notwithstanding any
attempted cure or other action by the Borrower, any other Loan Party or any other Person
subsequent to the occurrence of such Default. Except as otherwise explicitly provided for
herein or in any other Loan Document, no notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other circumstances.



     15.14 SUCCESSORS AND ASSIGNS.




     (a) 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, except that
the Borrower may not assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of all the Lenders (and any such assignment or transfer to
which all of the Lenders have not consented shall be void).




     (b) Participations. Any Lender may at any time grant to an affiliate of such
Lender, or one or more banks or other financial institutions (each a “Participant”)
participating interests in its Commitment or the obligations owing to such Lender hereunder.
No Participant shall have any rights or benefits under this Agreement or any other Loan
Document. In the event of any such grant by a Lender of a participating interest to a
Participant, such Lender shall remain responsible for the performance of it obligations
hereunder, and the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provision of this Agreement;
provided however, such Lender may agree with the Participant that it will
not, without the consent of the Participant, agree to (i) increase such Lender’s Commitment,
(ii) extend the date fixed for the payment of principal on the Loan or a portion thereof
owing to such Lender, or (iii) reduce the rate at which interest is payable thereon. An
assignment or other transfer which is not permitted by subsection (c) below shall be given
effect for purposes of this Agreement only to the extent of a participating interest granted
in accordance with this subsection (b).




     (c) Assignments. Any Lender may with the prior written consent of the
Administrative Agent and the Borrower (which consent, in each case, shall not be
unreasonably withheld) at any time assign to one or more Eligible Assignees (each an
“Assignee”) all or a portion of its rights and obligations under this Agreement and the
Notes; provided, however, (i) no such consent by the Borrower shall be
required (x) if a Default or Potential Default shall exist or (y) in the case of an
assignment to another Lender or an affiliate of another Lender; (ii) any partial assignment
shall be in an amount at least equal to $5,000,000 and after giving effect to such
assignment the assigning Lender retains a Commitment, or if the Commitments have been
terminated, holds a Note having an outstanding principal balance, of at least $5,000,000,
and (iii) each such assignment shall be effected by means of an Assignment and Assumption
Agreement. Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Lender of an amount equal to the purchase price agreed between such
transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to
this



65









 






Agreement and shall have all the rights and obligations of a Lender with a Commitment as set
forth in such Assignment and Assumption Agreement, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Lender, the Administrative Agent and the Borrower shall
make appropriate arrangement so the new Notes (in the form attached hereto as Exhibit
E) are issued to the Assignee and such transferor Lender, as appropriate. In connection
with any such assignment, the transferor Lender shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $4,500; provided,
however, if such assigning Lender is a Defaulting Lender, the administrative fee for
processing such assignment shall be $7,500. Anything in this Section to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan held by it
hereunder to the Borrower, or any of its respective Affiliates or subsidiaries.




     (d) Tax Withholding. At least five (5) Business Days prior to the first day on
which interest or fees are payable hereunder for the account of any Lender, each Lender that
is not incorporated under the laws of the United States of America, or a state thereof,
shall furnish the Administrative Agent and Borrower with a properly completed executed copy
of either Internal Revenue Service Form W-8ECI or Internal Revenue Service Form W-8BEN and
either Internal Revenue Service Form W-8 or Internal Revenue Service Form W-9 and any
additional form (or such other form) as is necessary to claim complete exemption from United
States withholding taxes on all payments hereunder. At all times each Lender shall own or
beneficially own a Note, such Lender shall (i) promptly provide to the Administrative Agent
and Borrower a new Internal Revenue Service Form W-8ECI or Internal Revenue Service Form
W-8BEN and Internal Revenue Service Form W-8 or Internal Revenue Service Form W-9 and any
additional form (or such other form) (or any successor form or forms) upon the expiration or
obsolescence of any previously delivered form and comparable statements in accordance with
applicable United States laws and regulations and amendments duly executed and completed by
such Lender, and (ii) comply at all times with all applicable United States laws and
regulations, including all provisions of any applicable tax treaty, with regard to any
withholding tax exemption claimed with respect to any payments on the Loan. If any Lender
cannot deliver such form, then Borrower may withhold from payments due under the Loan
Documents such amounts as Borrower is able to determine from accurate information provided
by such Lender are required by the Internal Revenue Code.




     (e) Federal Reserve Bank Assignments. In addition to the assignments and
participations permitted under the foregoing provisions of the Section, and without the need
to comply with any of the formal or procedural requirements of this Section, any Lender may
at any time and from time to time, pledge and assign all or any portion of its rights under
all or any of the Loan Documents and Other Related Documents to a Federal Reserve Bank;
provided that no such pledge of assignment shall release such Lender from its obligation
thereunder.




     (f) Information to Assignee, Etc.. A Lender may, from time to time, furnish any
information in the possession of such Lender concerning the Borrower, any subsidiary or any
other Loan Party, or relating to the Loan or the Collateral, including insurance
information, to Assignees and Participants (including prospective Assignees and Participants
who Lender in good faith proposes to assign or participate a portion of the Loan in
accordance with this Agreement). In connection with and to the extent reasonably necessary
for such negotiation, execution and delivery, Borrower authorizes Administrative Agent and
Lenders to communicate all information and documentation related to the Loan (whether to
Borrower or to any Participant, Assignee, legal counsel, appraiser or other necessary party)
directly by e-mail, fax, or other electronic means used to transmit information. Each
Lender shall use commercially reasonable and good faith efforts to maintain, and to cause
any of its Participants to maintain, such information in a confidential manner, and to
restrict the dissemination of such information to Persons having a reasonable and legitimate
need related to the Loan for access thereto.



66









 





     15.15 ADDITIONAL COSTS — LIBOR.




     (a) Capital Adequacy. If any Lender or any Participant in the Loan determines that
compliance with any law or regulation or with any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such Lender or such
Participant, or any corporation controlling such Lender or such Participant, as a
consequence of, or with reference to, such Lender’s or such Participant’s or such
corporation’s Commitments or its making or maintaining Loans below the rate which such
Lender or such Participant or such corporation controlling such Lender or such Participant
could have achieved but for such compliance (taking into account the policies of such Lender
or such Participant or corporation with regard to capital), then the Borrower shall, from
time to time, subject to Section 2.6(f), pay to such Lender or such Participant additional
amounts sufficient to compensate such Lender or such Participant or such corporation
controlling such Lender or such Participant to the extent that such Lender or such
Participant determines such increase in capital is allocable to such Lender’s or such
Participant’s obligations hereunder.




     (b) Additional Costs. In addition to, and not in limitation of the immediately
preceding clause (a), the Borrower shall promptly pay to the Administrative Agent for the
account of a Lender from time to time such amounts as such Lender may determine to be
necessary to compensate such Lender for any costs incurred by such Lender that it determines
are attributable to its making or maintaining of any LIBOR Loans or its obligation to make
any LIBOR Loans or hereunder, any reduction in any amount receivable by such Lender under
this Agreement or any of the other Loan Documents in respect of any of such LIBOR Loans or
such obligation or the maintenance by such Lender of capital in respect of its LIBOR Loans
or its Commitments (such increases in costs and reductions in amounts receivable being
herein called “Additional Costs”), resulting from any Regulatory Change that: (i) changes
the basis of taxation of any amounts payable to such Lender under this Agreement or any of
the other Loan Documents in respect of any of such LIBOR Loans or its Commitments (other
than taxes imposed on or measured by the overall net income of such Lender or of its Lending
Office for any of such LIBOR Loans by the jurisdiction in which such Lender has its
principal office or such Lending Office), or (ii) imposes or modifies any reserve, special
deposit or similar requirements (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System or other similar reserve requirement applicable to
any other category of liabilities or category of extensions of credit or other assets by
reference to which the interest rate on LIBOR Loans is determined) relating to any
extensions of credit or other assets of, or any deposits with or other liabilities of, or
other credit extended by, or any other acquisition of funds by such Lender (or its parent
corporation), or any commitment of such Lender (including, without limitation, the
Commitments of such Lender hereunder) or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that which such Lender could have
achieved but for such Regulatory Change (taking into consideration such Lender’s policies
with respect to capital adequacy).




     (c) Lender’s Suspension of LIBOR Loans. Without limiting the effect of the
provisions of the immediately preceding subsection (a) and (b), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits or other liabilities
of such Lender that includes deposits by reference to which the interest rate on LIBOR Loans
is determined as provided in this Agreement or a category of extensions of credit or other
assets of such Lender that includes LIBOR Loans or (ii) becomes subject to restrictions on
the amount of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Administrative Agent), the
obligation of such Lender to make or continue LIBOR Loans shall be suspended until such
Regulatory Change ceases to be in effect (in which case the provisions of Section
2.6(e)(i)(D) shall apply).




     (d) Notification and Determination of Additional Costs. Each of the Administrative
Agent, each Lender, and each Participant, as the case may be, agrees to notify the Borrower
of



67









 






any event occurring after the Effective Date entitling the Administrative Agent, such Lender
or such Participant to compensation under any of the preceding subsections of this Section
as promptly as practicable; provided, however, that the failure of the Administrative Agent,
any Lender or any Participant to give such notice shall not release the Borrower from any of
its obligations hereunder. The Administrative Agent, each Lender and each Participant, as
the case may be, agrees to furnish to the Borrower, a Lender or a Participant to the
Administrative Agent as well, a certificate setting forth the basis and amount of each
request for compensation under this Section. Determinations by the Administrative Agent,
such Lender, or such Participant, as the case may be, of the effect of any Regulatory Change
shall be conclusive and binding for all purposes, absent manifest error.



     15.16 SIGNS. Administrative Agent may place on the Property, in locations reasonably
determined by Borrower, reasonable signs standard to construction loan transactions stating that
construction financing is being provided by Lenders.



     15.17 LENDER’S AGENTS. Administrative Agent and/or any Lender may designate an agent or
independent contractor to exercise any of such Person’s rights under this Agreement, any of the
other Loan Documents and Other Related Documents. Any reference to Administrative Agent or any
Lender in any of the Loan Documents or Other Related Documents shall include Administrative Agent’s
and such Lender’s agents, employees or independent contractors. Borrower shall pay the costs of
such agent or independent contractor either directly to such person or to Administrative Agent or
such Lender in reimbursement of such costs, as applicable.



     15.18 TAX SERVICE. Administrative Agent, on behalf of Lenders, is authorized to secure, at
Borrower’s expense, a tax service contract with a third party vendor which shall provide tax
information on the Property satisfactory to Administrative Agent.



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



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



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



     15.22 HEADINGS. All article, section or other headings appearing in this Agreement, the
other Loan Documents and Other Related Documents are for convenience of reference only and shall be



68









 




disregarded in construing this Agreement, any of the other Loan Documents and Other Related
Documents.




     15.23 GOVERNING LAW. This Agreement shall be governed by, and construed and enforced in
accordance with the laws of the State of Texas, except to the extent preempted by federal laws.
Borrower and all persons and entities in any manner obligated to Administrative Agent and Lenders
under the Loan Documents and Other Related Documents consent to the jurisdiction of any federal or
state court within the State of Texas having proper venue and also consent to service of process by
any means authorized by Texas or federal law.



     15.24 USA PATRIOT ACT NOTICE; COMPLIANCE. The USA Patriot Act of 2001 (Public Law 107-56)
and federal regulations issued with respect thereto require all financial institutions to obtain,
verify and record certain information that identifies individuals or business entities which open
an “account” with such financial institution. Consequently, Administrative Agent (for itself
and/or as Administrative Agent for all Lenders hereunder) may from time-to-time request, and
Borrower shall provide to Administrative Agent, Borrower’s name, address, tax identification number
and/or such other identification information as shall be necessary for Administrative Agent and
Lenders to comply with federal law. An “account” for this purpose may include, without limitation,
a deposit account, cash management service, a transaction or asset account, a credit account, a
loan or other extension of credit, and/or other financial services product.



     15.25 ELECTRONIC DOCUMENT DELIVERIES. Documents required to be delivered pursuant to the
Loan Documents shall be delivered by electronic communication and delivery, including, the
Internet, e-mail or intranet websites to which the Administrative Agent and each Lender have
access (including a commercial, third-party website such as www.Edgar.com
<http://www.Edgar.com> or a website sponsored or hosted by the Administrative Agent or the
Borrower) provided that (A) the foregoing shall not apply to notices to any Lender pursuant to
Article 3 and (B) the Lender has not notified the Administrative Agent or Borrower that it cannot
or does not want to receive electronic communications. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic delivery pursuant to procedures approved by it for all or particular notices or
communications. Documents or notices delivered electronically shall be deemed to have been
delivered twenty-four (24) hours after the date and time on which the Administrative Agent or
Borrower posts such documents or the documents become available on a commercial website and the
Administrative Agent or Borrower notifies each Lender of said posting and provides a link thereto
provided if such notice or other communication is not sent or posted during the normal business
hours of the recipient, said posting date and time shall be deemed to have commenced as of 9:00
a.m. on the opening of business on the next business day for the recipient. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to provide paper copies
of the certificate required by Section 11.8 to the Administrative Agent and shall deliver paper
copies of any documents to the Administrative Agent or to any Lender that requests such paper
copies until a written request to cease delivering paper copies is given by the Administrative
Agent or such Lender. Except for the certificates required by Section 11.8, the Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the
documents delivered electronically, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery. Each Lender shall be solely
responsible for requesting delivery to it of paper copies and maintaining its paper or electronic
documents.



     15.26 INTEGRATION; INTERPRETATION. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES. THIS INSTRUMENT MAY BE AMENDED ONLY BY AN INSTRUMENT IN WRITING
EXECUTED BY THE PARTIES HERETO. The Loan Documents and Other Related Documents shall not be
modified except by written instrument executed by all parties. Any reference to the Loan Documents
or Other Related Documents includes any amendments, renewals or extensions now or hereafter
approved by Administrative Agent in writing.



69









 





     15.27 JOINT AND SEVERAL LIABILITY. The liability of all persons and entities obligated in
any manner under this Agreement, any of the Loan Documents or Other Related Documents, other than
Administrative Agent and/or Lenders, shall be joint and several.



     15.28 COUNTERPARTS. To facilitate execution, this document may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that the signature of, or
on behalf of, each party, or that the signature of all persons required to bind any party, appear
on each counterpart. All counterparts shall collectively constitute a single document. It shall
not be necessary in making proof of this document to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.
Any signature page to any counterpart may be detached from such counterpart without impairing the
legal effect of the signatures thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature pages.



(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)



70









 





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



	 	 	 	 	 
	 	“ADMINISTRATIVE AGENT”



WELLS FARGO BANK, NATIONAL ASSOCIATION, a 

national banking association, as Administrative Agent for 

the Lenders

 	 
	 	 	 
	 	By:  	                       /s/ J. Kent Howard
 	 
	 	 	Name:  	J. Kent Howard 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Administrative Agent’s Address:



5400 LBJ Freeway, Suite 1000

Dallas, Texas 75240

Attn: Real Estate Banking Group, Ryan Campbell

Telephone: 972-364-1040

Facsimile: 972-386-4723

Email: ryan.c.campbell@wellsfargo.com

 	 
	 



[Signature Page — Loan Agreement]



 









 





	 	 	 	 	 
	 	“LENDER”



WELLS FARGO BANK, NATIONAL ASSOCIATION, a 

national banking association

 	 
	 	 	 
	 	By:  	                       /s/ J. Kent Howard
 	 
	 	 	Name:  	J. Kent Howard 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Lender’s Address:



5400 LBJ Freeway, Suite 1000

Dallas, Texas 75240

Attn: Real Estate Banking Group, Ryan Campbell

Telephone: 972-364-1040

Facsimile: 972-386-4723

Email: ryan.c.campbell@wellsfargo.com

 	 
	 



[Signature Page — Loan Agreement]



 









 





	 	 	 	 	 
	 	“BORROWER”



VICTORIA WARD, LIMITED,

a Delaware corporation
 	 
	 	 	 
	 	By:  	                         /s/ Grant Herlitz
 	 
	 	 	Name:  	Grant Herlitz 	 
	 	 	Title:  	President 	 
	 
	 	VICTORIA WARD CENTER L.L.C.,

a Delaware limited liability company
 	 
	 	 	 
	 	By:  	                         /s/ Grant Herlitz
 	 
	 	 	Name:  	Grant Herlitz 	 
	 	 	Title:  	President 	 
	 
	 	VICTORIA WARD ENTERTAINMENT CENTER

 L.L.C., a Delaware limited liability company
 	 
	 	 	 
	 	By:  	                         /s/ Grant Herlitz
 	 
	 	 	Name:  	Grant Herlitz 	 
	 	 	Title:  	President 	 
	 
	 	WARD PLAZA-WAREHOUSE, LLC,

a Delaware limited liability company
 	 
	 	 	 
	 	By:  	                         /s/ Grant Herlitz
 	 
	 	 	Name:  	Grant Herlitz 	 
	 	 	Title:  	President 	 
	 
	 	WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, 

a Delaware limited liability company
 	 
	 	 	 
	 	By:  	                         /s/ Grant Herlitz
 	 
	 	 	Name:  	Grant Herlitz 	 
	 	 	Title:  	President 	 
	 
	 	Borrower’s Address:



c/o The Howard Hughes Corporation

One Galleria Tower

13355 Noel Road, Suite 950

Dallas, Texas 75252

Attention: President



c/o The Howard Hughes Corporation

One Galleria Tower

13355 Noel Road, Suite 950

Dallas, Texas 75252

Attention: Legal Department

 	 
	 



[Signature Page — Loan Agreement]




 











 





Schedule 1.1 — Pro Rata Shares




     Schedule 1.1 to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation
(“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD
ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a
Delaware limited liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited
liability company, as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative
Agent”, and various Lenders, dated as of September 29, 2011.



	 	 	 	 	 	 	 	 	 
	Lender
	 	Commitment	 	 	Pro Rata Share	 
	Wells Fargo Bank, National Association
	 	$	250,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	TOTALS
	 	$	250,000,000	 	 	 	100	%






 









 






Schedule 7.6 — Litigation Disclosure




     Schedule 7.6 to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation
(“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD
ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a
Delaware limited liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited
liability company, as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative
Agent”, and various Lenders, dated as of September 29, 2011.


1. None.












 









 








Schedule 8.1 — Environmental Reports




     Schedule 8.1 to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation
(“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD
ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a
Delaware limited liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited
liability company, as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative
Agent”, and various Lenders, dated as of September 29, 2011.



     1. Phase I Environmental Site Assessment dated August 23, 2011, prepared by Global Realty
Services Group.



 









 





EXHIBIT A — DESCRIPTION OF PROPERTY




     Exhibit A to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation
(“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD
ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a
Delaware limited liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited
liability company, as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative
Agent”, and various Lenders, dated as of September 29, 2011.



     All the real property located in the County of Honolulu, State of Hawaii, described as
follows:



KEY PROPERTIES




WARD CENTRE



Ward Centre

Tax Parcel ID No. 2-3-005-006



FIRST



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 10, Block 2, area 181,024 SF, more or less, as shown on Map 16, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 722,605 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 89433, dated October 21, 2004, with full powers to
sell, mortgage, lease or otherwise deal with the land



SECOND



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 10, area 1,003 SF, more or less, as shown on Map 20, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited



Being land(s) described in Transfer Certificate of Title No. 722,606 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 89433, dated October 21, 2004, with full powers to
sell, mortgage, lease or otherwise deal with the land.



THIRD



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 12, area 14,790 SF, more or less, as shown on Map 20, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited



Being land(s) described in Transfer Certificate of Title No. 722,607 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 89433, dated October 21, 2004, with full powers to
sell, mortgage, lease or otherwise deal with the land.




Being the premises acquired by land trust agreement and conveyance

Grantor: Victoria Ward, Limited, a Delaware corporation.



Grantee: Bank of Hawaii, a Hawaii corporation, Trustee under that Land Trust Agreement No. 89433,
dated October 21, 2004, with full powers to sell, mortgage, lease or otherwise deal with the land.




Dated: October 21, 2004

Filed: Land Court Document No. 3188119




1









 





WARD VILLAGE SHOPS




WVS Parking Lot

Tax Parcel ID 2-3-005-013



ITEM 1



Parcel First:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 2, area 122,261 SF, more or less, as shown on Map 18, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 635,289 issued to Victoria Ward,
Limited, a Delaware corporation.



Parcel Second:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 2-C area 24,544 SF, more or less, as shown on Map 2, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 188 of Waimanu
Investment Venture, a Hawaii limited partnership;



Together with access to public Roads, namely Kamakee Street, Auahi Street and Queen Street, over
and across Lot 2 of Land Court Consolidation No. 53, as set forth by Land Court Order No. 149191,
filed January 28, 2003 (as to Lot 2-C); and as set forth by Land Court Order No. 149187, filed
January 28, 2003 (as to Lot 2).



Being land(s) described in Transfer Certificate of Title No. 642,194 issued to Victoria Ward,
Limited, a Delaware corporation.



Parcel Third:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 31-A, area 6,486 SF, more or less, as shown on Map 9, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 948 of Hawaiian
Dredging Company Limited.



Being land(s) described in Transfer Certificate of Title No. 642,197 issued to Victoria Ward,
Limited, a Delaware corporation.



ITEM II



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot A-1, area 3,157 SF, more or less, as shown on Map 25, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 975,534 issued to Victoria Ward,
Limited, a Delaware corporation.






2









 








WVS Parking Lot Tax Parcel ID 2-3-005-014

WVS Parking Lot Tax Parcel ID 2-3-005-015

Ward Village A — 1142 Auahi Tax Parcel ID 2-3-005-016

Ward Village B — 116 Auahi Tax Parcel ID 2-3-005-017

Ward Village C — 1108 Auahi Tax Parcel ID 2-3-005-019

327 Kamakee Street (fr Toshiba) Tax Parcel ID 2-3-005-022



ITEM I



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 13, Block 5, area 10,609 SF, more or less, as shown on Map 4, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.



ITEM II



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 12, Block 5, area 10,184 SF, more or less, as shown on Map 4, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.



ITEM III



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 6, Block 5, area 9,138 SF, more or less, as shown on Map 4, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.



ITEM IV



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots: 4, Block 5, area 18,272 SF, more or less; and 5, Block 5, area 9,978 SF, more or less, as
shown on Map 2, filed in the Office of the Assistant Registrar of the Land Court of the State of
Hawaii with Land Court Consolidation No. 53 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.



ITEM V



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:







3









 







Lots: 1, Block 5, area 9,665 SF, more or less; 2, Block 5, area 8,452 SF, more or less, and 3 Block
5, area 15,000 SF, more or less, as shown on Map 2, filed in the Office of the Assistant Registrar
of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria Ward,
Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.



ITEM VI



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 14, Block 5, area 19,570 SF, more or less, as shown on Map 6, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.




WARD PLAZA




Ward Plaza Building 2.115 acres — 92,136 SF

Tax Parcel ID No. 2-1-056-001



All of those certain parcels of land situate at Honolulu, City and County of Honolulu, State of
Hawaii, described as follows:




Lots 109-A, area 6,636 SF and

110-A, area 5,445 SF, more or less, both in Block 9, as shown on Map 30




111, area 7,500 SF

112, area 7,500 SF

113, area 7,500 SF, and

114, area 7,500 SF more or less, all in Block 9, as shown on Map 1



115-A, area 7,255 SF, more or less, Block 9, as shown on Map 30




416, area 7,100 SF

417, area 7,100 SF

418, area 7,100 SF

419, area 7, 100 SF

420, area 9,200 SF, more or less, as shown on Map 19




421-A, area 5,200 SF, more or less, as shown on Map 30



filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land
Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 825, 275 issued to First Hawaiian
Bank, a Hawaii corporation, Trustee under that certain unrecorded Land Trust Agreement No. FHB-TRES
200601, dated September 20, 2006, with full powers to sell, mortgage, lease or otherwise deal with
the land.




Being the premises acquired by warranty deed

Grantor: Victoria Ward, Limited



Grantee: First Hawaiian Bank, a Hawaii corporation, Trustee under that certain unrecorded Land
Trust Agreement No. FHB-TRES 200601, dated September 20, 2006, with full powers to sell, mortgage,
lease or otherwise deal with the land.






4









 








Dated: September 20, 2006

Filed: Land Court Document No. 3488455




WARD ENTERTAINMENT CENTER




Ward Entertainment Center

1020 Auahi Street 161,619 SF

Tax Parcel ID No. 2-3-002-104



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 2-B, Block 4, area 161,619 SF, more or less, as shown on Map 21, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Together with an easement for access and utility purposes over Easement “5” affecting Lot 2-A, Map
21, Land Court Consolidation No. 53, as granted by Grant of Access and Utility Easement dated
November 10, 2004, filed as Land Court Document No. 3208309; and subject to the terms and
provisions contained therein.



Being land(s) described in Transfer Certificate of Title No. 722,604 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 89434, dated October 21, 2004, with full powers to
sell, mortgage, lease or otherwise deal with the land.




Being the premises acquired by land trust agreement and conveyance

Grantor: Victoria Ward, Limited, a Delaware corporation



Grantee: Bank of Hawaii, a Hawaii corporation, Trustee under that Land Trust Agreement No. 89434,
dated October 21, 2004, with full powers to sell, mortgage, lease or otherwise deal with the land.




Dated: October 21, 2004

Filed: Land Court Document No. 3188118




REDEVELOPMENT PROPERTY




WARD GATEWAY CENTRE



Ward Gateway Corner Building

BHP Petroleum Americas

Tax Parcel ID No. 2-3-002-002

Ward Gateway Center

Tax Parcel ID No. 2-3-02-059



FIRST



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots 3, area 10,120 SF, more or less, as shown on Map 8, and 4-A, area 234,343 SF, more or less, as
shown on Map 12, Block 4, filed in the Office of the Assistant Registrar of the Land Court of the
State of Hawaii with Land Court Consolidation No. 53 of Victoria Ward, Limited.



SECOND



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:






5









 







Lots J-1, area 11,535 SF, J-2, area 1, 179 SF, and J-3, area 111 SF, more or less, as shown on Map
2, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with
Land Court Application No. 670of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 825, 278 issued to First Hawaiian
Bank, a Hawaii corporation, Trustee under that certain unrecorded Land Trust Agreement No. FHB-TRES
200602, dated September 20, 2006, with full powers to sell, mortgage, lease or otherwise deal with
the land.




WARD WAREHOUSE




Ward Warehouse — 273,684 SF

Tax Parcel ID No. 2-3-001-005



All of that certain parcel of land situate at Kaakaukukui, Kewalo and Kukuluaeo, Honolulu, City
and County of Honolulu, State of Hawaii, described as follows:



Lot 39, Block 1, area 273,684 SF, more or less, as shown on Map 15, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 825, 276 issued to First Hawaiian
Bank, a Hawaii corporation, Trustee under that certain unrecorded Land Trust Agreement No. FHB-TRES
200601, dated September 20, 2006, with full powers to sell, mortgage, lease or otherwise deal with
the land.




Being the premises acquired by warranty deed

Grantor: Victoria Ward, Limited, a Delaware corporation



Grantee: First Hawaiian Bank, a Hawaii corporation, Trustee under that certain unrecorded Land
Trust Agreement No. FHB-TRES 200601, dated September 20, 2006, with full powers to sell, mortgage,
lease or otherwise deal with the land.




Dated: September 20, 2006

Filed: Land Court Document No. 3488455




WARD WAREHOUSE  — SURFACE PARKING LOTS




1140 Ala Moana and 1031 Auahi Street

Parking Lots across from theater

Tax Parcel ID 2-3-001-001 and 2-3-001-004




ITEM I




Parcel First



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 33, Block 1, area 25,000 SF, more or less, as shown on Map 2, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.



Parcel Second



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:







6









 







Lot 6, area 24,287 SF, more or less, as shown on Map 20, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 686,614 issued to Victoria Ward,
Limited, a Delaware corporation.



Parcel Third



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 8, area 7,159 SF, more or less, as shown on Map 20, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 686,614 issued to Victoria Ward,
Limited, a Delaware corporation.



ITEM II



All of that certain parcel of land situate at Kaakaukukui, Kewalo, and Kukuluaeo, Honolulu, City
and County of Honolulu, State of Hawaii, described as follows:



Lot 32, Block 1, area 25,000 SF, more or less, as shown on Map 2, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,559 issued to Victoria Ward,
Limited, a Delaware corporation.




WARD INDUSTRIAL CENTER AND WARD VILLAGE




Ward Industrial Center 477,582 SF

Tax Parcel ID No. 2-3-002-001



All of that certain parcel of land situate at Honolulu, City and County of Honolulu, State of
Hawaii, described as follows:



Lot 2-A, Block 4, area 477,582 SF, more or less, as shown on Map 21, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 825, 277 issued to First Hawaiian
Bank, a Hawaii corporation, Trustee under that certain unrecorded Land Trust Agreement No. FHB-TRES
200602, dated September 20, 2006, with full powers to sell, mortgage, lease or otherwise deal with
the land.




Being the premises acquired by warranty deed

Grantor: Victoria Ward, Limited, a Delaware corporation



Grantee: First Hawaiian Bank, a Hawaii corporation, Trustee under that certain unrecorded Land
Trust Agreement No. FHB-TRES 200602, dated September 20, 2006, with full powers to sell, mortgage,
lease or otherwise deal with the land.




Dated: September 20, 2006

Filed: Land Court Document No. 3488456

Recorded: Document No. 2006-176675




7









 





WARD INDUSTRIAL AND WARD VILLAGE RELATED PARKING AREAS




967 Queen Street (Parking Lot) 9335 SF

Tax Parcel ID No. 2-3-002-067



All of those certain parcels of land (being portions) of the land(s) described in and covered by
Royal Patent 5716, Land Commission Award 10,605, Apana 7 to Kamakee Piikoi) situate, lying and
being at Kewalo, Honolulu, City and County of Honolulu, State of Hawaii, as shown on map prepared
by Kendall N.H. Hee, Land Surveyor, with Engineers Surveyors Hawaii, Inc., dated September 7, 2006,
approved by the Department of Planning and Permitting, City and County of Honolulu, File No.
2004/SUB-207, on September 15, 2006, and described as follows:



Lots 14-A, area 4,858 SF, 14-B, area 100 SF, 15-A, 4,277 SF, and 15-B, area 100 SF, more or less.




Being the premises acquired by Warranty Deed,

Grantor: Victoria Ward, Limited, a Delaware corporation



Grantee: First Hawaiian Bank, a Hawaii corporation, Trustee under that certain unrecorded Land
Trust Agreement No. FHB-TRES 200602, dated September 20, 2006, with full powers to sell, mortgage,
lease or otherwise deal with the land.




Dated: September 20, 2006

Filed: Land Court Document No. 3488456

Recorded: Document No. 2006-176675




987 Queen Street — Parking Lot

Tax Parcel ID 2-3-002-086



All of those certain parcels of land (being portion(s) of the land(s) described in and covered by
Royal Patent 5716, Land Commission Award 10,605, Apana 7 to Kamakee Piikoi) situate, lying and
being at Kewalo, Honolulu, City and County of Honolulu, State of Hawaii, as shown on map prepared
by Kendall N.H. Hee, Land Surveyor, with Engineers Surveyors Hawaii, Inc., dated September 7, 2006,
approved by the Department of Planning and Permitting, City and County of Honolulu, File No.
2004/SUB-207, on September 15, 2006, and described as follows:



Lot C-1, 2,330 SF, and Lot C-2, 100 SF, more or less.




Being the premises described in deed:

Grantor: Imao Mishima and Kimiko Mishima, husband and wife

Grantee: Victoria Ward, Limited, a Hawaii corporation

Dated: December 6, 1962

Recorded: Liber 4419, Page 58




1015 Queen Street — Parking Lot

Tax Parcel ID 2-3-002-087



All of those certain parcels of land (being portion(s) of the land(s) described in and covered by
Royal Patent 5716, Land Commission Award 10,605, Apana 7 to Kamakee Piikoi) situate, lying and
being at Kewalo, Honolulu, City and County of Honolulu, State of Hawaii, as shown on map prepared
by Kendall N.H. Hee, Land Surveyor, with Engineers Surveyors Hawaii, Inc., dated September 7, 2006,
approved by the Department of Planning and Permitting, City and County of Honolulu, File No.
2004/SUB-207, on September 15, 2006, and described as follows:



Lot E-1, 2,148 SF, Lot E-2, 173 SF, Lot F-1, 783 SF, Lot F-2, 149 SF, Lot G-1, 313 SF, and Lot G-2,
244 SF, more or less.







8









 








Being the premises described in exchange deed:

Grantor: E. E. Black, Limited, a Hawaii corporation

Grantee: Victoria Ward, Limited, a Hawaii corporation

Dated: November 26, 1951

Recorded: Liber 2526, Page 240




PROPERTIES WHICH ARE

NOT KEY PROPERTIES OR REDEVELOPMENT PROPERTIES




Pohukaina Center

Tax Parcel ID 2-1-53-01

214,867 SF



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lots 425, area 129,979 SF, more or less, 426, area 32,312 SF, more or less, 427, area 13, 625 SF,
more or less, 428, area 32,182 SF, more or less, and 429, area 6,769, more or less, as shown on Map
19, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with
Land Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




Ward Court Development — 250 Ward

Tax Parcel ID 2-1-53-30



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 422-A, area 41,135 SF, more or less, as shown on Map 29, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




956 Queen Street

Tax Parcel ID 2-3-003-022



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 405, area 10,000 SF, more or less, as shown on Map 12, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




1240 Ala Moana — IBM Building

Tax Parcel ID 2-03-005-005

Tax Parcel ID 2-03-005-012

Tax Parcel ID 2-03-005-004



All of those certain parcels of land situate at the intersection of Ala Moana Boulevard, Queen
Street and Auahi Street in Honolulu, City and County of Honolulu, State of Hawaii, described as
follows:







9









 







Lots 7, area 25391 SF, more or less, 8, area 12,688 SF, more or less, and 9, area 11,603 SF, more
or less, in Block 2, as shown on Map 2, filed in the Office of the Assistant Registrar of the Land
Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria Ward, Limited.



Being portion(s) of the land(s) described in Transfer Certificate of Title No. 630,559 issued to
Victoria Ward, Limited, a Delaware corporation.




956 Kawaiahao Street

Tax Parcel ID 2-3-003-065



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 407, area 10,000 SF, more or less, as shown on Map 12, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




955 Waimanu Street

Tax Parcel ID 2-3-003-093



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 408, area 10,000 SF, more or less, as shown on Map 12, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




955 Kawaihao Street

Tax Parcel ID 2-3-003-094



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 406, area 10,000 SF, more or less, as shown on Map 12, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




GROUND LEASE PROPERTIES




509 Ahui

4,958 SF

Tax Parcel ID 2-1-052-011



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 52, Block 4, area 4,958 square feet, more or less, as shown on Map 1, filed in the Office of
the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No.
670 of Victoria Ward, Limited.







10









 







Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




307 Kamani

19,650 SF

Tax Parcel ID 2-1-052-012



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 423, area 19,650 SF, more or less, as shown on Map 19, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited. Being land(s) described in Transfer Certificate of Title No. 630,560 issued to
Victoria Ward, Limited, a Delaware corporation.




506 Ahui

9,916 SF

Tax Parcel ID 2-1-052-017

Kilban Foods Hawaii Inc. (Tenant on Tax Parcel Chart)



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots 37, area 4,958 SF, and 38, area 4,958 SF, more or less, Block 3, as shown on Map 1, filed in
the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court
Application No. 670 of Victoria Ward, Limited. Being land(s) described in Transfer Certificate of
Title No. 630,560 issued to Victoria Ward, Limited, a Delaware corporation.




Stand Alone Building and Roadway (Halekauwila Street)

534 Koula Street

Tax Parcel ID 2-1-052-16 and 2-1-052-022



FIRST:



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:




Lot K, area 20,383 square feet, more or less,

Kamani Street, Part 2, area 19,958 SF; and

Mohala Street, Part 2, area 19,958 SF, more or less

as shown on Map 3, filed in the Office of the Assistant Registrar of the Land Court of the State of

Hawaii with Land Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.



SECOND:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 448, area 37,261 SF, more or less, as shown on Map 40, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,561 issued to Victoria Ward,
Limited, a Delaware corporation.






11









 







THIRD:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 450, area 3,829 SF, more or less, as shown on Map 40, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,562 issued to Victoria Ward,
Limited, a Delaware corporation.




320 Ward Court

Tax Parcel ID 2-1-052-020



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 424-A, area 43,543 square feet, more or less, as shown on Map 29, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




Kamani Building  — 331 Kamani

Tax Parcel ID 2-1-052-024



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 413, of Block 5, area 18,115 SF, more or less, as shown on Map 16, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




901-917 Halekauwila 10,000SF

Tax Parcel ID 2-1-052-027

Exotic Nights (Also referenced as Tony and Danny Corp -Tenant on Tax Parcel Chart)



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 412, Block 5, area 10,000 SF, more or less, as shown on Map 16, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited. Being land(s) described in Transfer Certificate of Title No. 630,560 issued
to Victoria Ward, Limited, a Delaware corporation.




350 Ward Street — Ward Court Development

14,858 SF

Tax Parcel ID 2-1-052-028



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:






12









 







Lot 59, Block 5, area 5,000 SF, more or less, and Lot 60, Block 5, area 5,000 SF, more or less, as
shown on Map 1; and 61-A, Block 5, area 4,858SF, more or less, as shown on Map 29 filed in the
Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court
Application No. 670 of Victoria Ward, Limited. Being land(s) described in Transfer Certificate of
Title No. 630,560 issued to Victoria Ward, Limited, a Delaware corporation.




306 -310 Kamani Street

4958 SF

Tax Parcel ID 2-1-052-031



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 56, Block 4, area 4,958 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited. Being land(s) described in Transfer Certificate of Title No. 630,560 issued
to Victoria Ward, Limited, a Delaware corporation.




Pohukaina Court — 838/846 Pohukaina Street

14874 SF

Tax Parcel ID 2-1-052-032




1200 Ala Moana Boulevard, Honolulu, Hawaii 96814

1030 Auahi Street, Honolulu, Hawaii 96814



Also described as:



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:




Lot 53, Block 4, area 4,958 SF, and

Lot 54, Block 4, area 4,958 SF, and



Lot 55, Block 4, area 4,958 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited. Being land(s) described in Transfer Certificate of Title No. 630,560 issued
to Victoria Ward, Limited, a Delaware corporation.




517 Ahui Street (Ahui Bldgs.)

6250 SF

Tax Parcel ID 2-1-052-033



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 50, Block 4, area 6,250 SF, as shown on Map 1, filed in the Office of the Assistant Registrar
of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria Ward,
Limited. Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria
Ward, Limited, a Delaware corporation.




537 Ahui Street (Ahui Bldg.)

Tax Parcel ID 2-1-052-034



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:







13









 







Lot 44, Block 4, area 6,250 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




863-849 Halekauwila Street

Tax Parcel ID 2-1-052-036



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots 42, area 5,000 SF, 43, area 5,000 SF, and 45, area 6,250 SF, more or less, Block 4, as shown
on Map 1, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii
with Land Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




837 Halekauwila Street

Tax Parcel ID 2-1-052-035



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lots 410, Block 4, area 7,500 SF, more or less, as shown on Map 15, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




330 Kamani Street

Tax Parcel ID 2-1-052-038



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 47, Block 4, area 6,250 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




324 Kamani Street

Tax Parcel ID 2-1-052-039



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 49, Block 4, area 6,250 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.







14









 







Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




318 Kamani Street

6250 SF

Tax Parcel ID 2-1-052-040



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 51, Block 4, area 6,250 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited. Being land(s) described in Transfer Certificate of Title No. 630,560 issued
to Victoria Ward, Limited, a Delaware corporation.




Jay Kadowaki / Parking Lot

Tax Parcel ID 2-1-052-042



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots 31, area 5,000 SF, 32, area 5,000 SF, 33, area 5,000 SF, and 34, area 5,000 SF, more or less,
Block 3, as shown on Map 1, filed in the Office of the Assistant Registrar of the Land Court of the
State of Hawaii with Land Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




532 Ahui

20,000 SF

Tax Parcel ID 2-1-052-043



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots 27, area 5,000 SF, 28, area 5,000 SF, 29, area 5,000 SF, and 30, area 5,000 SF, more or less,
as shown on Map 1, filed in the Office of the Assistant Registrar of the Land Court of the State of
Hawaii with Land Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




801 Halekauwila Street

Tax Parcel ID 2-1-052-045



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 23, Block 3, area 5,000 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.








15









 








Halekauwila Building  — 550 Ahui Street

Tax Parcel ID 2-1-052-046



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots: 24, area 5,000 SF, 25, area 5,000 SF, and 26, area 5,000 SF, more or less, Block 3, as shown
on Map 1, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii
with Land Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




531 Ahui Street (Ahui Bldgs.)

Tax Parcel ID 2-1-052-051



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 46, Block 4, area 6,250 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




523 Ahui Street (Ahui Bldg.)

Tax Parcel ID 2-1-052-052



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 48, Block 4, area 6,250 SF, more or less, as shown on Map 1, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.




863-849 Halekauwila Street

Tax Parcel ID 2-1-052-053



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lots 411, Block 4, area 7,500 SF, more or less, as shown on Map 15, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of
Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward,
Limited, a Delaware corporation.







16









 








TAX PARCEL ID NO. 2-1-050




900 Halekauwila 15,000SF

Tax Parcel ID 2-1-050-001



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lots 13, Block 2, area 5,000 SF, 14, Block 2, area, 5,000 SF, and 15, Block 2, 5,000 SF more or
less, as shown on Map 1, filed in the Office of the Assistant Registrar of the Land Court of the
State of Hawaii with Land Court Application No. 670 of Victoria Ward, Limited. Being land(s)
described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward, Limited, a Delaware
corporation.




420 Ward Avenue

27,124 SF

Tax Parcel ID 2-1-050-061



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lots: 18, Block 2, area 5,000 SF, more or less, 20, Block 2, area 3,561 SF, more or less, 21, Block
2, area 5,217 SF, more or less, as shown on Map 1, and Lot 19-A, Block 2, area 4,874 SF, more or
less, and 22-A, Block 2, area 5,656 SF, more or less, as shown on Map 29, filed in the Office of
the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No.
670 of Victoria Ward, Limited. Being land(s) described in Transfer Certificate of Title No. 630,560
issued to Victoria Ward, Limited, a Delaware corporation.




404 Ward Avenue

9,644 SF

Tax Parcel ID 2-1-050-062



All of those certain parcels of land situate at Kewalo, Honolulu, City and County of Honolulu,
State of Hawaii, described as follows:



Lot 16, Block 2, area 5,000 SF, more or less, as shown on Map 1, and Lot 17-A, Block 2, area 4,644
SF, more or less, as shown on Map 29, filed in the Office of the Assistant Registrar of the Land
Court of the State of Hawaii with Land Court Application No. 670 of Victoria Ward, Limited. Being
land(s) described in Transfer Certificate of Title No. 630,560 issued to Victoria Ward, Limited, a
Delaware corporation.




TAX PARCEL ID NO. 2-1-049




Gary A. Galiher

Tax Parcel ID 2-1-49-063



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot C-2-A, area 14,989 SF, more or less, as shown on Map 31, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 630,558 issued to Victoria Ward,
Limited, a Delaware corporation.








17









 








875 Kapiolani

11,637 SF

Tax Parcel ID 2-1-049-080

Jack in the Box (originally Foodmaker, Inc.) (Tenant on Tax Parcel Chart)



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot C-1-A, area 11,637 SF, more or less, as shown on Map 31, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 670 of Victoria
Ward, Limited. Being land(s) described in Transfer Certificate of Title No. 630,558 issued to
Victoria Ward, Limited, a Delaware corporation.










18









 








EXHIBIT A-1

TO LOAN AGREEMENT




“WARD CENTRE PROPERTY”



Ward Centre

Tax Parcel ID No. 2-3-005-006



FIRST



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 10, Block 2, area 181,024 SF, more or less, as shown on Map 16, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 722,605 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 89433, dated October 21, 2004, with full powers to
sell, mortgage, lease or otherwise deal with the land.



SECOND



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 10, area 1,003 SF, more or less, as shown on Map 20, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited



Being land(s) described in Transfer Certificate of Title No. 722,606 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 894343, dated October 21, 2004, with full powers
to sell, mortgage, lease or otherwise deal with the land.



THIRD



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 12, area 14,790 SF, more or less, as shown on Map 20, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited



Being land(s) described in Transfer Certificate of Title No. 722,607 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 89433, dated October 21, 2004, with full powers to
sell, mortgage, lease or otherwise deal with the land.




Being the premises acquired by land trust agreement and conveyance

Grantor: Victoria Ward, Limited, a Delaware corporation



Grantee: Bank of Hawaii, a Hawaii corporation, Trustee under that Land Trust Agreement No. 89433,
dated October 21, 2004, with full powers to sell, mortgage, lease or otherwise deal with the land.




Dated: October 21, 2004

Filed: Land Court Document No. 3188119




1









 





EXHIBIT A-2

TO LOAN AGREEMENT




“WARD ENTERTAINMENT CENTER PROPERTY”



Ward Entertainment Center

1020 Auahi Street 161,619 SF

Tax Parcel ID No. 2-3-002-104



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 2-B, Block 4, area 161,619 SF, more or less, as shown on Map 21, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Together with an easement for access and utility purposes over Easement “5” affecting Lot 2-A, Map
21, Land Court Consolidation No. 53, as granted by Grant of Access and Utility Easement dated
November 10, 2004, filed as Land Court Document No. 3208309; and subject to the terms and
provisions contained therein.



Being land(s) described in Transfer Certificate of Title No. 722,604 issued to Bank of Hawaii, a
Hawaii corporation, Trustee under Land Trust No. 89434, dated October 21, 2004, with full powers to
sell, mortgage, lease or otherwise deal with the land.




Being the premises acquired by land trust agreement and conveyance

Grantor: Victoria Ward, Limited, a Delaware corporation



Grantee: Bank of Hawaii, a Hawaii corporation, Trustee under that Land Trust Agreement No. 89434,
dated October 21, 2004, with full powers to sell, mortgage, lease or otherwise deal with the land.




Dated: October 21, 2004

Filed: Land Court Document No. 3188118




1









 





EXHIBIT A-3

TO LOAN AGREEMENT




“WARD GATEWAY PROPERTY”



Ward Gateway Corner Building

Tax Parcel ID No. 2-3-002-02




Ward Gateway Center

Tax Parcel ID No. 2-3-02-059



FIRST



All of those certain parcels of situate at Kewalo, Honolulu, City and County of Honolulu, State of
Hawaii, described as follows:



Lots 3, area 10,120 SF, more or less, as shown on Map 8, and 4-A, area 234,343 SF, more or less, as
shown on Map 12, Block 4, filed in the Office of the Assistant Registrar of the Land Court of the
State of Hawaii with Land Court Consolidation No. 53 of Victoria Ward, Limited.



SECOND



All of those certain parcels of situate at Kewalo, Honolulu, City and County of Honolulu, State of
Hawaii, described as follows:



Lots J-1, area 11,535 SF, J-2, area 1, 179 SF, and J-3, area 111 SF, more or less, as shown on Map
2, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with
Land Court Application No. 670of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 825, 278 issued to First Hawaiian
Bank, a Hawaii corporation, Trustee under that certain unrecorded Land Trust Agreement No. FHB-TRES
200602, dated September 20, 2006, with full powers to sell, mortgage, lease or otherwise deal with
the land.










1









 








EXHIBIT A-4




WARD INDUSTRIAL PROPERTY







1









 





EXHIBIT A-5

TO LOAN AGREEMENT




“WARD PLAZA BUILDING PROPERTY”



Ward Plaza Building 2.115 acres — 92,136 SF

Tax Parcel ID No. 2-1-056-001



All of those certain parcels of land situate at Honolulu, City and County of Honolulu, State of
Hawaii, described as follows:




Lots 109-A, area 6,636 SF and

110-A, area 5,445 SF, more or less, both in Block 9, as shown on Map 30




111, area 7,500 SF

112, area 7,500 SF

113, area 7,500 SF, and

114, area 7,500 SF more or less, all in Block 9, as shown on Map 1



115-A, area 7,255 SF, more or less, Block 9, as shown on Map30




416, area 7,100 SF

417, area 7,100 SF

418, area 7,100 SF

419, area 7, 100 SF

420, area 9,200 SF, more or less, as shown on Map 19




421-A, area 5,200 SF, more or less, as shown on Map 30

filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land

Court Application No. 670 of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 825, 275 issued to First Hawaiian
Bank, a Hawaii corporation, Trustee under that certain unrecorded Land Trust Agreement No. FHB-TRES
200601, dated September 20, 2006, with full powers to sell, mortgage, lease or otherwise deal with
the land.




Being the premises acquired by warranty deed

Grantor: Victoria Ward, Limited



Grantee: First Hawaiian Bank, a Hawaii corporation, Trustee under that certain unrecorded Land
Trust Agreement No. FHB-TRES 200601, dated September 20, 2006, with full powers to sell, mortgage,
lease or otherwise deal with the land.




Dated: September 20, 2006

Filed: Land Court Document No. 3488455




1









 





EXHIBIT A-6




WARD VILLAGE PROPERT







1









 





EXHIBIT A-7

TO LOAN AGREEMENT




“WARD VILLAGE SHOPS”



Tax Parcel ID 2-3-005-013



ITEM 1



Parcel First:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 2, area 122,261 SF, more or less, as shown on Map 18, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 635,289 issued to Victoria Ward,
Limited, a Delaware corporation



Parcel Second:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 2-C area 24,544 SF, more or less, as shown on Map 2, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 188 of Waimanu
Investment Venture, a Hawaii limited partnership;



Together with access to public Roads, namely Kamakee Street, Auahi Street and Queen Street, over
and across Lot 2 of Land Court Consolidation No. 53, as set forth by Land Court Order No. 149191,
filed January 28, 2003 (as to Lot 2-C); and as set forth by Land Court Order No. 149187, filed
January 28, 2003 (as to Lot 2).



Being land(s) described in Transfer Certificate of Title No. 642,194 issued to Victoria Ward,
Limited, a Delaware corporation



Parcel Third:



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot 31-A, area 6,486 SF, more or less, as shown on Map 9, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application No. 948 of Hawaiian
Dredging Company Limited.



Being land(s) described in Transfer Certificate of Title No. 642,197 issued to Victoria Ward,
Limited, a Delaware corporation



ITEM II



All of that certain parcel of land situate at Kewalo, Honolulu, City and County of Honolulu, State
of Hawaii, described as follows:



Lot A-1, area 3,157 SF, more or less, as shown on Map 25, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53 of Victoria
Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 975,534 issued to Victoria Ward,
Limited, a Delaware corporation.










1









 








EXHIBIT A-8

TO LOAN AGREEMENT




“WARD WAREHOUSE PROPERTY”



Tax Parcel ID No. 2-3-001-005



All of that certain parcel of land situate at Kaakaukukui, Kewalo and Kukuluaeo, Honolulu, City
and County of Honolulu, State of Hawaii, described as follows:



Lot 39, Block 1, area 273,684 SF, more or less, as shown on Map 15, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii with Land Court Consolidation No. 53
of Victoria Ward, Limited.



Being land(s) described in Transfer Certificate of Title No. 825, 276 issued to First Hawaiian
Bank, a Hawaii corporation, Trustee under that certain unrecorded Land Trust Agreement No. FHB-TRES
200601, dated September 20, 2006, with full powers to sell, mortgage, lease or otherwise deal with
the land.




Being the premises acquired by warranty deed

Grantor: Victoria Ward, Limited, a Delaware corporation



Grantee: First Hawaiian Bank, a Hawaii corporation, Trustee under that certain unrecorded Land
Trust Agreement No. FHB-TRES 200601, dated September 20, 2006, with full powers to sell, mortgage,
lease or otherwise deal with the land.



Dated: September 20, 2006










1









 








EXHIBIT A-9

TO LOAN AGREEMENT




WARD VILLAGE RETAIL SHOPS







1









 





EXHIBIT A-10

AUAHI CONDOMINIUM LAND








1









 





EXHIBIT A-11

AUAHI SHOPS








1









 





EXHIBIT B — DOCUMENTS




     Exhibit B to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation
(“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD
ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a
Delaware limited liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited
liability company, as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative
Agent”, and various Lenders, dated as of September 29, 2011.



     1. Loan Documents. The documents listed below, numbered 1.1 through 1.9, inclusive,
and amendments, modifications and supplements thereto which have received the prior written consent
of Lender, together with any documents executed in the future that are approved by Lender and that
recite that they are “Loan Documents” for purposes of this Agreement are collectively referred to
herein as the Loan Documents.




     1.1 This Agreement.




     1.2 The Promissory Notes Secured by Mortgage in the aggregate original principal amount
of the Loan made by Borrower payable to the order of Lenders.




     1.3 The Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and
Fixture Filing of even date herewith executed by Parent, as Mortgagor, to Administrative
Agent, for the benefit of Lenders, as Mortgagee.




     1.4 The Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and
Fixture Filing of even date herewith executed by Bank of Hawaii, a Hawaii corporation, as
Trustee under Land Trust No. 89433 dated October 21, 2004, and Ward Center, collectively as
Mortgagor, to Administrative Agent, for the benefit of Lenders, as Mortgagee.




     1.5 The Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and
Fixture Filing of even date herewith executed by Bank of Hawaii, a Hawaii corporation, as
Trustee under Land Trust No. 89434 dated October 21, 2004, and Ward Entertainment,
collectively as Mortgagor, to Administrative Agent, for the benefit of Lenders, as
Mortgagee.




     1.6 The Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and
Fixture Filing of even date herewith executed by First Hawaiian Bank, a Hawaii corporation,
as trustee under Land Trust Agreement No. FHB-TRES 200601 dated September 20, 2006, and Ward
Plaza, collectively as Mortgagor, to Administrative Agent, for the benefit of Lenders, as
Mortgagee.




     1.7 The Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and
Fixture Filing of even date herewith executed by First Hawaiian Bank, a Hawaii corporation,
as trustee under Land Trust Agreement No. FHB-TRES 200602 dated September 20, 2006, and Ward
Gateway, collectively as Mortgagor, to Administrative Agent, for the benefit of Lenders, as
Mortgagee.




     1.8 Cash Management Agreement of even date herewith executed by Borrower and
Administrative Agent




     1.9 The Deposit Account Control Agreement of even date herewith executed by and among
Borrower, Administrative Agent and Bank of Hawaii, as deposit bank.



1









 





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




     2.1 Completion Guaranty of even date herewith executed by The Howard Hughes
Corporation, a Delaware corporation, as Guarantor in favor of Lender.




     2.2 Limited Guaranty of even date herewith executed by The Howard Hughes Corporation, a
Delaware corporation, as Guarantor in favor of Lender.




     2.3 Unsecured Hazardous Materials Indemnity Agreement dated of even date with this
Agreement executed by and between The Howard Hughes Corporation, a Delaware corporation, as
Indemnitor and Lender.




     2.4 Flood Hazard Notice, executed by Borrower.




     2.5 Opinion of Borrower’s Legal Counsel from K&L Gates, LLP, and the firm of Schlack
Ito.



2









 





EXHIBIT C — DISBURSEMENT PLAN




     Exhibit C to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation (“Parent”),
VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD ENTERTAINMENT
CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a Delaware limited
liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited liability company,
as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative Agent”, and various
Lenders, dated as of September 29, 2011.




	1.	 	Timing of Disbursement. Unless another provision of this Agreement specifies
otherwise, on or about the first (1st) day of each month, or at such other times as
Administrative Agent may approve or determine more appropriate, Borrower shall submit to:





	 	 	 

	 

	 	Wells Fargo Bank, National Association

Minneapolis Loan Center

608 2nd Avenue South

11th Floor

MAC N9303-110

Minneapolis, MN 55402-1916
	 
	 	 
	 

	 	Attention: Claire Alber







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






	 	1.1.	 	a description of the work performed, material supplied and/or costs incurred or
due for which disbursement is requested with respect to any line item, as applicable;
and






	 	1.2.	 	the total amount incurred, expended and/or due for each such Item; and






	 	1.3.	 	the date on which Borrower requests that such disbursement be made (subject to
Section 14.3, the “Funding Date”), which date shall in no event be earlier than ten
(10) Business Days following submittal by Borrower to Administrative Agent of the
Application for Payment (together with all related supporting information and
certificates) and the satisfaction by Borrower of each applicable condition to
disbursement set forth in this Agreement;
	 
	 	 	 	Each Application for Payment by Borrower shall constitute a representation and
warranty by Borrower that Borrower is in compliance with all the conditions
precedent to a disbursement specified in this Agreement.






	2.	 	Right to Condition Disbursements. Administrative Agent shall have the right to
condition any disbursement upon Administrative Agent’s receipt and approval of the following:






	 	2.1.	 	the Application for Payment;






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






	 	2.3.	 	evidence of Borrower’s use of a Lien release, joint check and voucher system
acceptable to Administrative Agent for payments or disbursements to any contractor,
subcontractor, materialman, supplier or Lien claimant;






	 	2.4.	 	If required by Administrative Agent, Independent Inspecting Architect’s
periodic inspections of the stage of construction that has been completed and its
conformance to




1









 






	 	 	 	any plans and specifications and Requirements of Law based upon any such
architect’s, inspector’s and/or engineer’s periodic physical inspections of the
Property;






	 	2.5.	 	waivers and releases of any mechanics’ lien, stop notice claim, equitable lien
claim or other Lien claim rights for lien claims or potential claims in excess of
$25,000;






	 	2.6.	 	evidence of Borrower’s compliance with the provisions of the Articles and
Sections of this Agreement entitled Construction and
Authority/Enforceability;






	 	2.7.	 	a written release executed by any surety to whom Administrative Agent or any
Lender has issued or will issue a set-aside letter and/or any public entity or agency
which is a beneficiary under any instrument of credit or standby letter of credit which
Administrative Agent or any Lender has issued or will issue with respect to the Loan;






	 	2.8.	 	valid, recorded Notice(s) of Completion for any Additional Improvements or any
portions of the Additional Improvements for which Notice(s) of Completion may be
recorded under applicable law;






	 	2.9.	 	any other document, requirement, evidence or information that Administrative
Agent may request under any provision of the Loan Documents; and






	 	2.10.	 	evidence that any goods, materials, supplies, fixtures or other work in
process for which disbursement is requested have been incorporated into the Additional
Improvements.






	 	2.12.	 	in the event any Application for Payment includes the cost of materials stored
at a location other than the Property (“Offsite Materials”), such Application for
Payment shall include each of the following: (a) evidence that the Offsite Materials
have been purchased by Borrower, have been segregated from other materials in the
facility and have been appropriately marked to indicate Borrower’s ownership thereof
and Lenders’ security interest therein; and (b) evidence that the Offsite Materials are
insured as required by this Agreement; and (c) at Administrative Agent’s request, a
security agreement, financing statement and/or subordination agreement in form and
substance satisfactory to Administrative Agent executed by the supplier of the Offsite
Materials, and/or such other persons as Administrative Agent determines may have an
interest in or claim to the Offsite Materials, together with such other additional
documentation and evidence as Administrative Agent may reasonably require to assure
itself that Lenders have a perfected first priority lien on the Offsite Materials.






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






	 	 	 	Borrower acknowledges that this approval process may result in disbursement delays
and an inability for Lenders to fund on the Funding Date and Borrower hereby
consents to all such delays.




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EXHIBIT D — FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT




     Exhibit D to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation
(“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD
ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a
Delaware limited liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited
liability company, as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative
Agent”, and various Lenders, dated as of September 29, 2011.



ASSIGNMENT AND ASSUMPTION AGREEMENT




     THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is dated as of _________,
201___,
between __________________ (“Assignor”) and _________________
(“Assignee”).



RECITALS:




     A. Assignor is a Lender under the Loan Agreement dated as of September 29, 2011 (as from time
to time amended, supplemented or restated, the “Loan Agreement”), by and among VICTORIA WARD,
LIMITED, a Delaware corporation (“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited
liability company, VICTORIA WARD ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company,
WARD PLAZA-WAREHOUSE, LLC, a Delaware limited liability company, and WARD
GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited liability company (“Borrower”), the persons
named therein as Lenders and such other Persons as may become Lenders in accordance with the terms
of the Loan Agreement, and Wells Fargo Bank, National Association, as Administrative Agent
(“Administrative Agent”). (Capitalized terms used in this Agreement without definition have the
same meanings as in the Loan Agreement.)



     B. Currently, Assignor’s Pro Rata Share of the Loan is equal to __________% and Assignee’s Pro
Rata Share of the Loan is equal to _________%.



     C. Assignor desires to assign to Assignee, and Assignee desires to accept and assume, [all/a
portion of] the rights and obligations of Assignor under the Loan Agreement.



     NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto
agree as follows:




	 	1.	 	Assignment.






     (a) Effective on the Assignment Effective Date (as defined in Section 3 below),
Assignor hereby assigns to Assignee the Assigned Share (as defined below) of [all/a portion
of] of Assignor’s rights, title, interest and obligations under the Loan Agreement and other
Loan Documents, including without limitation those relating to Assignor’s Pro Rata Share of
the Loan. The Assigned Share of all such rights, title, interest and obligations is
referred to collectively as the “Assigned Rights and Obligations”.




     (b) The “Assigned Share” means the portion of Assignor’s Pro Rata Share in the Loan
being assigned hereby, such portion being equal to _______% of the Loan (or $__________ of
Commitment). The new Pro Rata Share of Loan being held by Assignee (after giving effect to
the assignment hereunder), and the Pro Rata Share in the Loan retained by Assignor, shall be
as specified on the signature pages of this Agreement



     2. Assumption. Effective on the Assignment Effective Date, Assignee hereby accepts
the foregoing assignment of, and hereby assumes from Assignor, the Assigned Rights and Obligations.



     3. Effectiveness. This Agreement shall become effective on a date (the “Assignment
Effective Date”) selected by Assignor, which shall be on or as soon as practicable after the
execution




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and delivery of counterparts of this Agreement by Assignor, Assignee, Administrative Agent and
Borrower. Assignor shall promptly notify Assignee, Administrative Agent and Borrower in writing of
the Assignment Effective Date.




     4. Payments on Assignment Effective Date. In consideration of the assignment by
Assignor to Assignee, and the assumption by Assignee, of the Assigned Rights and Obligations, on
the Assignment Effective Date Assignee shall pay to Assignor such amounts as are specified in any
written agreement or exchange of letters between them and additionally shall pay to Administrative
Agent a assignment processing fee of $4,500.



     5. Allocation and Payment of Interest and Fees.




     (a) Administrative Agent shall pay to Assignee all interest and other amounts
(including Fees, except as otherwise provided in the written agreement referred to in
Section 4 above) not constituting principal that are paid by or on behalf of Borrower
pursuant to the Loan Documents and are attributable to the Assigned Rights and Obligations
(“Borrower Amounts”), that accrue on and after the Assignment Effective Date. If Assignor
receives or collects any such Borrower Amounts, Assignor shall promptly pay them to
Assignee.




     (b) Administrative Agent shall pay to Assignor all Borrower Amounts that accrue before
the Assignment Effective Date (or otherwise pursuant to the written agreement referred to in
Section 4 above) when and as the same are paid by Administrative Agent to the other Lenders.
If Assignee receives or collects any such Borrower Amounts, Assignee shall promptly pay
such amounts to Assignor.




     (c) Unless specifically assumed by Assignee, Assignor shall be responsible and liable
for all reimbursable liabilities and costs and indemnification obligations which accrue
under Section 14.12 of the Loan Agreement prior to the Assignment Effective Date, and such
liability shall survive the Assignment Effective Date.



     6. Administrative Agent Liability. Administrative Agent shall not be liable for any
allocation or payment to either Assignor or Assignee subsequently determined to be erroneous,
unless resulting from Administrative Agent’s willful misconduct or gross negligence.



     7. Representations and Warranties.




     (a) Each of Assignor and Assignee represents and warrants to the other and to
Administrative Agent as follows:




     (i) It has full power and authority, and has taken all action necessary, to
execute and deliver this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement;




     (ii) The making and performance of this Agreement and all documents required to
be executed and delivered by it hereunder do not and will not violate any law or
regulation applicable to it;




     (iii) This Agreement has been duly executed and delivered by it and constitutes
its legal, valid and binding obligation enforceable in accordance with its terms;
and




     (iv) All approvals, authorizations or other actions by, or filings with, any
Governmental Authority necessary for the validity or enforceability of its
obligations under this Agreement have been made or obtained.




     (b) Assignor represents and warrants to Assignee that Assignor owns the Assigned Rights
and Obligations free and clear of any Lien or other encumbrance.



2









 






     (c) Assignee represents and warrants to Assignor as follows:




     (i) Assignee is and shall continue to be an “Eligible Assignee” as defined in
the Loan Agreement;




     (ii) Assignee has made and shall continue to make its own independent
investigation of the financial condition, affairs and creditworthiness of Borrower
and any other Loan Party; and




     (iii) Assignee has received copies of the Loan Documents and such other
documents, financial statements and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Agreement.



     8. No Assignor Responsibility. Assignor makes no representation or warranty
regarding, and assumes no responsibility to Assignee for:




     (a) the execution (by any party other than Assignor), effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of the Loan Documents or any
representations, warranties, recitals or statements made in the Loan Documents or in any
financial or other written or oral statement, instrument, report, certificate or any other
document made or furnished or made available by Assignor to Assignee or by or on behalf of
any Loan Party to Assignor or Assignee in connection with the Loan Documents and the
transactions contemplated thereby;




     (b) the performance or observance of any of the terms, covenants or agreements
contained in any of the Loan Documents or as to the existence or possible existence of any
Default or Potential Default under the Loan Documents; or




     (c) the accuracy or completeness of any information provided to Assignee, whether by
Assignor or by or on behalf of any Loan Party.



     Assignor shall have no initial or continuing duty or responsibility to make any investigation
of the financial condition, affairs or creditworthiness of any of the Loan Parties, in connection
with the assignment of the Assigned Rights and Obligations or to provide Assignee with any credit
or other information with respect thereto, whether coming into its possession before the date
hereof or at any time or times thereafter.



     9. Assignee Bound by Loan Agreement. Effective on the Assignment Effective Date,
Assignee (a) shall be deemed to be a party to the Loan Agreement and as such, shall be directly
liable to Borrower for any failure by Assignee to comply with Assignee’s assumed obligations
thereunder, including, without limitation, Assignee’s obligation to fund its Pro Rata Share of the
Loan in accordance with provisions of the Loan Agreement, (b) agrees to be bound by the Loan
Agreement to the same extent as it would have been if it had been an original Lender thereunder,
(c) agrees to perform in accordance with their respective terms all of the obligations which are
required under the Loan Documents to be performed by it as a Lender, and (d) agrees to maintain its
status as an Eligible Assignee. Assignee appoints and authorizes Administrative Agent to take such
actions as agent on its behalf and to exercise such powers under the Loan Documents as are
delegated to Administrative Agent by the terms thereof, together with such powers as are reasonably
incidental thereto.



     10. Assignor Released From Loan Agreement. Effective on the Assignment Effective
Date, Assignor shall be released from the Assigned Rights and Obligations; provided, however, that
Assignor shall retain all of its rights to indemnification under the Loan Agreement and the other
Loan Documents for any events, acts or omissions occurring before the Assignment Effective Date,
and, to the extent not assumed by Assignee, Assignor shall continue to be responsible for the
liabilities and obligations described in Section 5(c) of this Agreement.



     11. New Notes. On or promptly after the Assignment Effective Date, Borrower,
Administrative Agent, Assignor and Assignee shall make appropriate arrangements so that new Notes



3









 




executed by Borrower, dated the Assignment Effective Date and in the amount of the respective
Pro Rata Shares of Assignor and Assignee in the original Loan amount, after giving effect to this
Agreement, are issued to Assignor and Assignee, in exchange for the surrender by Assignor and
Assignee to Borrower of any applicable outstanding Notes, marked “Exchanged”.




     12. General.




     (a) No term or provision of this Agreement may be amended, waived or terminated orally,
but only by an instrument signed by the parties hereto.




     (b) This Agreement may be executed in one or more counterparts. Each set of executed
counterparts shall be an original. Executed counterparts may be delivered by facsimile
transmission.




     (c) If Assignor has not assigned its entire remaining Pro Rata Share of the Loan to
Assignee, Assignor may at any time and from time to time grant to others, subject to
applicable provisions in the Loan Agreement, assignments of or participation in all of
Assignor’s remaining Pro Rata Share of the Loan.




     (d) This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Neither Assignor nor Assignee may assign or
transfer any of its rights or obligations under this Agreement without the prior written
consent of the other and Administrative Agent and (subject to the provisions of Section
15.14 of the Loan Agreement) Borrower. The preceding sentence shall not limit the right of
Assignee to grant to others a participation in all or part of the Assigned Rights and
Obligations subject to the terms of the Loan Agreement.




     (e) All payments to Assignor or Assignee hereunder shall, unless otherwise specified by
the party entitled thereto, be made in United States dollars, in immediately available
funds, and to the address or account specified on the signature pages of this Agreement.
The address of Assignee for notice purposes under the Loan Agreement shall be as specified
on the signature pages of this Agreement.




     (f) If any provision of this Agreement is held invalid, illegal or unenforceable, the
remaining provisions hereof will not be affected or impaired in any way.




     (g) Each party shall bear its own expenses in connection with the preparation and
execution of this Agreement.




     (h) This Agreement shall be governed by and construed in accordance with the laws of
the State of Texas.



     (i) [Foreign Withholding. On or before the Assignment Effective Date, Assignee shall
comply with the provisions of Section 15.14(d) of the Loan Agreement.]



(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)






4









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	ASSIGNOR:	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 



	 	 	 	 	 
	 	Pro Rata Share:	_____________%	 
	 	Share of Original Loan:	$_____________   	 
	 
	 	Payment Instruction:	 
	 	 	 
	 	 	 
	 	 	 





					
	 	ABA No.:	 	 
	 	Account No.:	 	 
	 	Reference:	 	 
	 	Loan No. :	 	 
	 	Attn :	 	 
	 	Telephone:	 	 
	 	Facsimile:	 	 





	 	 	 	 	 
	ASSIGNEE:	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 



	 	 	 	 
	 	Pro Rata Share:	_____________%	 
	 	Share of Original Loan:	$_____________   	 
	 
	 	Payment Instruction:	 
	 	 	 
	 	 	 
	 	 	 





					
	 	ABA No.:	 	 
	 	Account No.:	 	 
	 	Reference:	 	 
	 	Loan No. :	 	 
	 	Attn :	 	 
	 	Telephone:	 	 
	 	Facsimile:	 	 



5









 







	 	 	 	 	 
	ACKNOWLEDGED AND AGREED:
	

 	 
	BORROWER: 	 	 
	 	a
	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 
	 
	ADMINISTRATIVE AGENT:  	WELLS FARGO BANK NATIONAL ASSOCIATION

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 	 






6









 






	 	 	 	 	 



EXHIBIT E — FORM OF NOTE





     Exhibit E to LOAN AGREEMENT between VICTORIA WARD, LIMITED, a Delaware corporation
(“Parent”), VICTORIA WARD CENTER L.L.C., a Delaware limited liability company, VICTORIA WARD
ENTERTAINMENT CENTER L.L.C., a Delaware limited liability company, WARD PLAZA-WAREHOUSE, LLC, a
Delaware limited liability company, and WARD GATEWAY-INDUSTRIAL-VILLAGE, LLC, a Delaware limited
liability company, as “Borrower”, WELLS FARGO BANK, NATIONAL ASSOCIATION, as “Administrative
Agent”, and various Lenders, dated as of September 29, 2011.



PROMISSORY NOTE SECURED BY MORTGAGE




	 	 	 

	$__________________

	 	________ __, 201__






     FOR VALUE RECEIVED, _________________, a ____________ (“Borrower”), HEREBY PROMISES TO PAY to
the order of ___________________________ (“Lender”) the principal sum of __________________
Dollars ($__________), or if less, the aggregate unpaid principal amount of all disbursements
disbursed by Lender pursuant to the requirements set forth in the Loan Agreement dated as of
September 29, 2011 (as amended, supplemented or restated from time to time the “Loan Agreement”),
among Borrower, Lender, certain other Lenders named therein or made parties thereto and Wells Fargo
Bank, National Association, as Administrative Agent, together with interest on the unpaid principal
balance hereof at the rate (or rates) determined in accordance with Section 2.6 of the Loan
Agreement from the date such principal is advanced until it is paid in full. It is contemplated
that there will be Advances and payments under this Note from time to time, but no Advances or
payments under this Note (including payment in full of the unpaid balance of principal hereof prior
to maturity) shall affect or impair the validity or enforceability of this Note as to future
Advances hereunder.



     This Note is one of the Notes referred to in and governed by the Loan Agreement, which Loan
Agreement, among other things, contains provisions for the acceleration of the maturity hereof and
for the payment of certain additional sums to Lender upon the happening of certain stated events.
Capitalized terms used in this Note without definition have the same meanings as in the Loan
Agreement.



     The principal amount of this Note, unless accelerated in accordance with Loan Agreement as
described below, if not sooner paid, will be due and payable, together with all accrued and unpaid
interest and other amounts due and unpaid under the Loan Agreement, on the Maturity Date.



     This Note is secured by, among other things, one or more Mortgages with Absolute Assignment of
Leases and Rents, Security Agreement and Fixture Filing (as amended, supplemented or restated from
time to time, collectively, the “Mortgage”) dated of even date with the Loan Agreement, executed by
a Borrower, as mortgagor, to Administrative Agent for the benefit of Lenders, as mortgagee.



     Interest on the Loans is payable in arrears on the eleventh (11th) day of each
month during the term of the Loan Agreement, commencing with the first Business Day of the first
calendar month to begin after the date of this Note. Interest will be computed on the basis of the
actual number of days elapsed in the period during which interest accrues and a year of three
hundred sixty (360) days. The Loan Agreement provides for the payment by Borrower of various other
charges and fees, in addition to the interest charges described in the Loan Agreement, as set forth
more fully in the Loan Agreement.



     All payments of any amount becoming due under this Note shall be made in the manner provided
in the Loan Agreement, in Dollars.



     Upon and after the occurrence of a Default, unless such Default is waived as provided in the
Loan Agreement, this Note may, at the option of Requisite Lenders and without further demand,
notice or legal process of any kind, be declared by Administrative Agent, and in such case
immediately shall become, due and payable.



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     Demand, presentment, protest and notice of nonpayment and protest, notice of intention to
accelerate maturity, notice of acceleration of maturity and notice of dishonor are hereby waived by
Borrower. Subject to the terms of the Loan Agreement, Lender may extend the time of payment of
this Note, postpone the enforcement hereof, grant any indulgences, release any party primarily or
secondarily liable hereon or agree to any subordination of Borrower’s obligations hereunder without
affecting or diminishing Lender’s right of recourse against Borrower, which right is hereby
expressly reserved.



     This Note has been delivered and accepted Administrative Agent’s offices in Dallas, Texas.
This Note shall be interpreted in accordance with, and the rights and liabilities of the parties
hereto shall be determined and governed by, the laws of the State of Texas.



     All notices or other communications required or permitted to be given pursuant to this Note
shall be given to the Borrower or Lender at the address and in the manner provided for in the Loan
Agreement.



     In no contingency or event whatsoever shall interest charged in respect of the Loan evidenced
hereby, however such interest may be characterized or computed, exceed the highest rate permissible
under any law that a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. If such a court determines that Lender has received interest hereunder in
excess of the highest rate applicable hereto, Lender shall, at Lender’s election, either (a)
promptly refund such excess interest to Borrower or (b) credit such excess to the principal balance
hereof. This provision shall control over every other provision of all agreements between Borrower
and Lender.



     Whenever possible each provision of this Note shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Note shall be prohibited by
or invalid under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Note.



2









 





EXHIBIT F — SITE PLAN











1









 








EXHIBIT G — Transfer Authorizer


TRANSFER AUTHORIZER DESIGNATION

(For Disbursement of Loan Proceeds by Funds Transfer)



o NEW o REPLACE PREVIOUS DESIGNATION o ADD o CHANGE o DELETE LINE NUMBER _____



The following representatives of BORROWER’S NAME (“Borrower”) are authorized to request the
disbursement of Loan Proceeds and initiate funds transfers for Loan Number 1004573 dated September
29, 2011 between Wells Fargo Bank, National Association, as Administrative Agent on behalf of the
Lenders (“Agent”) and Borrower. Agent is authorized to rely on this Transfer Authorizer Designation
until it has received a new Transfer Authorizer Designation signed by Borrower, even in the event
that any or all of the foregoing information may have changed.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Maximum Wire	 
	 	 	Name	 	 	Title	 	 	Amount1	 
	1.	 	David R. Weinreb	 	CEO	 	$	20,000,000	 
	2.	 	Grant Herlitz	 	President	 	$	20,000,000	 
	3.	 	Andrew Richardson	 	CFO	 	$	20,000,000	 
	4.	 	Reuben Davidsohn	 	Executive Vice President and Treasurer	 	$	20,000,000	 






Beneficiary Bank Account Holder Information




	 	 	 	 	 

	 

	 	 1.	 	 
	 

	 	Transfer Funds to (Receiving Party Account Name):	 	 
	 
	 	 	 	 
	 

	 	Receiving Party Account Number:	 	 
	 
	 	 	 	 
	 

	 	Receiving Bank Name, City and State:
	 	Receiving Bank Routing (ABA) Number
	 
	 	 	 	 
	 

	 	Maximum Transfer Amount:	 	 
	 
	 	 	 	 
	 

	 	Further Credit Information/Instructions:	 	 
	 
	 	 	 	 
	 

	 	 2.	 	 
	 

	 	Transfer Funds to (Receiving Party Account Name):	 	 
	 
	 	 	 	 
	 

	 	Receiving Party Account Number:	 	 
	 
	 	 	 	 
	 

	 	Receiving Bank Name, City and State:
	 	Receiving Bank Routing (ABA) Number
	 
	 	 	 	 
	 

	 	Maximum Transfer Amount:	 	 
	 
	 	 	 	 
	 

	 	Further Credit Information/Instructions:	 	 
	 
	 	 	 	 
	 

	 	 3.	 	 
	 

	 	Transfer Funds to (Receiving Party Account Name):	 	 
	 
	 	 	 	 
	 

	 	Receiving Party Account Number:	 	 
	 
	 

	 	Receiving Bank Name, City and State:
	 	Receiving Bank Routing (ABA) Number
	 
	 	 	 	 
	 

	 	Maximum Transfer Amount:	 	 
	 
	 	 	 	 
	 

	 	Further Credit Information/Instructions:	 	 







1









 







     Maximum Wire Amount may not exceed the Loan Amount.



	 	 	 	 	 
	 	 	 
	 	Date:  	 	 
	 	“BORROWER” 	 
	 	 	 	 



BORROWING ENTITY
 a partnership




	 	 	 	 	 
	 	By:  	 	 
	 	 	General partner 	 
	 	 	 	 



2