{"id":43736,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/subscription-agreement-estate-of-bernice-pauahi-bishop-pauahi.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"subscription-agreement-estate-of-bernice-pauahi-bishop-pauahi","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/subscription-agreement-estate-of-bernice-pauahi-bishop-pauahi.html","title":{"rendered":"Subscription Agreement &#8211; Estate of Bernice Pauahi Bishop, Pauahi Holdings Corp., Royal Hawaiian Shopping Center Inc. and Goldman Sachs Group LP"},"content":{"rendered":"<pre>\n                             SUBSCRIPTION AGREEMENT\n\n            SUBSCRIPTION AGREEMENT, dated as of April 24, 1992 ('Agreement'),\namong the Trustees of the Estate of Bernice Pauahi Bishop, a private educational\ncharitable trust organized under the laws of the State of Hawaii ('KS\/BE'),\nPauahi Holdings Corporation, a Hawaii corporation ('Knight's Parent') and Royal\nHawaiian Shopping Center, Inc., a corporation organized under the laws of Hawaii\nand an indirect wholly-owned subsidiary of KS\/BE ('Knight'), on the one hand,\nand The Goldman Sachs Group, L.P., a limited partnership organized under the\nlaws of the State of Delaware (the 'Partnership'), on the other hand.\n\n            The parties agree as follows:\n\n            1. Definitions.\n\n            Capitalized terms used in this Agreement which are defined in the\nKnight Partnership Provisions referred to in Section 2 below have the respective\nmeanings set forth in such Knight Partnership Provisions.\n\n            For purposes of this Agreement, 'subsidiary' includes any\npartnership the controlling general partner of which is the Partnership or any\nsubsidiary thereof or the general partners of the Partnership (including a\nsubsidiary by virtue of this definition).\n\n            2. Subscription and Sale.\n\n            Subject to the satisfaction (or waiver) of the conditions set forth\nin Sections 4 and 5 below, KS\/BE, Knight's Parent, Knight and the Partnership\nagree as follows: on the Closing Date (as defined in Section 3(a) below), Knight\nshall purchase from the Partnership for a purchase price (the 'Purchase Price')\nof Two Hundred and Fifty Million Dollars (U.S. $250,000,000) a Part J limited\npartnership interest in the Partnership with Part J Actual\n\nCapital equal to $250 million, such limited partnership interest (the\n'Partnership Interest') to have the terms and conditions set forth in Article VI\nto the Memorandum of Agreement referred to in Section 3(b) below (such terms and\nconditions being referred to herein as the 'Knight Partnership Provisions'), and\nthe Partnership shall sell the Partnership Interest to Knight. The Partnership\nInterest is subject to adjustment following the Closing Date as set forth in the\nKS\/BE Partnership Provisions.\n\n            3. Closing and Closing Date.\n\n            (a) The consummation of the purchase and sale of the Partnership\nInterest shall be effective as of the date hereof (the 'Closing'). The date for\nexecution and delivery of the agreements or other instruments referred to in\nthis Section 3 (unless previously executed and delivered) and for delivery of\nthe Purchase Price (the 'Closing Date') will occur on April 24, 1992 or on such\nother date thereafter as may be contemplated by Section 11 hereof as the\nPartnership shall elect upon not less than two business days' prior notice,\ngiven orally or in writing, to KS\/BE (unless KS\/BE consents, orally or in\nwriting, to waiver of or shorter notice).\n\n            (b) Knight shall, on or prior to the Closing Date, execute and\ndeliver a Memorandum of Agreement of the Partnership, including Article VI,\namended and restated as of November 30, 1990, as further amended as of October\n14, 1991, November 26, 1991 and April 24, 1992 and effective as of the Closing\n(the 'Memorandum of Agreement').\n\n            (c) On the Closing Date, Knight shall deliver the Purchase Price in\nimmediately available funds to the Partnership by wire transfer to an account in\nNew York city designated by the Partnership.\n\n\n                                      -2-\n\n            (d) On the Closing Date, each of KS\/BE and Knight's Parent shall\nexecute and deliver to the Partnership the irrevocable proxy provided for in\nSection 10(c) hereof. On the Closing Date, Knight shall execute and deliver to\nthe Partnership its irrevocable proxy\/power-of-attorney and proxy provided for\nin Sections 9(c) and 10(c) hereof, respectively.\n\n            (e) On the Closing Date, the Partnership and Knight shall execute\nand deliver the Registration Rights Agreement appearing as Annex 5 hereto (the\n'Registration Rights Agreement').\n\n            4. Conditions to Knight's Obligations.\n\n            Knight's obligation to purchase the Partnership Interest is subject\nto, in its discretion, the satisfaction in all material respects of the\ncondition that the Partnership shall have performed on or prior to the Closing\nDate all its obligations hereunder to be performed on or prior to the Closing\nDate, and the satisfaction in all material respects as of the Closing Date of\nthe following additional conditions:\n\n            (i) any inaccuracy as of the Closing Date in the Partnership's\n      representations and warranties set forth in Sections 6(d) and 6(e) hereof\n      would not have or result in a material adverse impact on the business or\n      financial condition of KS\/BE and its subsidiaries taken as a whole and\n      would not adversely affect the Partnership Interest;\n\n            (ii) since the date of this Agreement to and including the Closing\n      Date, the consummation of such transactions shall not have become\n      prohibited under the laws of the United States to which KS\/BE or its\n      subsidiaries are subject; and\n\n            (iii) Sullivan &amp; Cromwell, counsel to the Partnership, shall have\n      delivered their written opinion, dated the Closing Date, to KS\/BE,\n      Knight's Parent and Knight to the effect set forth in Annex 1 hereto.\n\n\n                                      -3-\n\n            5. Conditions to the Partnership's Obligation.\n\n            The Partnership's obligation to sell the Partnership Interest is\nsubject to, in the Partnership's discretion, the satisfaction in all material\nrespects as of the Closing Date of the following conditions:\n\n            (i) any inaccuracy as of the Closing Date in the representations and\n      warranties set forth in Sections 7(a) and 7(b) hereof would not have or\n      result in the imposition of limitations or restrictions on the business or\n      operations of the Partnership or its subsidiaries which are unacceptable\n      to the Partnership and would not adversely affect the Partnership Interest\n      (from the Partnership's viewpoint);\n\n            (ii) since the date of this Agreement to and including the Closing\n      Date, the consummation of such transactions shall not have become\n      prohibited under the laws of the United States to which the Partnership is\n      subject; and\n\n            (iii) Nathan T.K. Aipa, Esq., counsel to KS\/BE, Knight's Parent and\n      Knight, shall have delivered his written opinion, dated the Closing Date,\n      to the Partnership to the effect of Annex 2 hereto.\n\n            6.    Representations, Warranties and Agreements of the Partnership.\n\n            The Partnership represents, warrants and agrees as of the date\nhereof that:\n\n            (a) Good Standing. The Partnership is a partnership formed and\nvalidly existing under the Revised Uniform Limited Partnership Act of the State\nof Delaware and has all requisite power and authority under such law to own its\nproperty and to carry on its business as now being conducted. Goldman, Sachs &amp; Co. is a partnership formed and validly existing under the Partnership Law of\nthe State of New York and has all requisite power and authority under such law\nto own its property and to carry on its business as now being conducted.\n\n            (b) Qualification. With such exceptions as do not in the aggregate\nmaterially adversely affect their respective businesses, the Partnership and\nGoldman, Sachs &amp; Co. have all permits, licenses and approvals necessary to carry\non their respective businesses as presently conducted\n\n\n                                      -4-\n\nas required by law or the rules of the Securities and Exchange Commission, the\nNational Association of Securities Dealers, Inc. and each other association,\ncorporation or governmental agency having appropriate authority.\n\n            (c) Stock Exchange Membership, etc. Goldman, Sachs &amp; Co. is a member\norganization in good standing of the New York Stock Exchange, Inc. and the\nNational Association of Securities Dealers, Inc.\n\n            (d) Regulatory Approvals. No filings, notifications, consents,\napprovals, authorizations or orders are required to be made with or secured from\ngovernmental or regulatory or judicial authorities by the Partnership (or any\nsubsidiary thereof) in order to consummate the transactions contemplated by\nSection 2 hereof.\n\n            (e) Power and Authority. The Partnership has full power and\nauthority to enter into this Agreement and the Registration Rights Agreement, to\nsell the Partnership Interest and to perform the other obligations provided for\nherein and in the Registration Rights Agreement, all of which have been duly\nauthorized by all proper and necessary action.\n\n            (f) Binding Agreements. This Agreement constitutes, and when\nexecuted and delivered in accordance herewith the Registration Rights Agreement\nwill constitute, a valid and binding agreement of the Partnership. When executed\nand delivered by Knight, the Memorandum of Agreement will constitute a valid and\nbinding agreement of the other partners continuing as partners of the\nPartnership as of the Closing.\n\n            (g) Litigation. As of the date of this Agreement, there are no\nproceedings or investigations pending or, so far as the Partnership knows,\nthreatened before any court, arbitrator or governmental or administrative\nauthority, instrumentality or agency which, in any one case or in the aggregate,\ncould reasonably be expected to have a material adverse effect on the business,\noperations, properties, assets, or condition, financial or otherwise, of the\nPartnership and its subsidiaries, taken as a whole, or which could affect the\nexecution, delivery and performance of this Agreement, the Registration Rights\nAgreement or the Memorandum of Agreement.\n\n            (h) Legality. As of the date of this Agreement, the consummation of\nthe purchase and sale of the Partnership Interest are not prohibited under the\nlaws of the United\n\n\n                                      -5-\n\nStates to which the Partnership or its subsidiaries are subject.\n\n            (i) No Conflicts. There is no order or judgment and no provision of\nany mortgage, indenture, contract or agreement binding on the Partnership or\naffecting its property which would conflict with or prevent the execution,\ndelivery or performance of this Agreement, the Registration Rights Agreement or\nthe Memorandum of Agreement (including Article VI thereof), and no consents or\nwaivers of parties to any such mortgage, indenture, contract or agreement\n(including the Memorandum of Agreement) are required for the Partnership's\nexecution, delivery or performance of this Agreement, the Registration Rights\nAgreement or the Memorandum of Agreement (including Article VI thereof), other\nthan those which have been obtained.\n\n            (j) Financial Statements. The Partnership has furnished to KS\/BE and\nKnight consolidated statements of financial condition of the Partnership as of\nNovember 29, 1991 and as of the end of each of the two preceding fiscal years,\nand consolidated statements of income and changes in partnership capital for the\nthree fiscal years then ended, certified by Coopers &amp; Lybrand, together with a\nconsolidated statement of income for the fiscal quarter ended February 28, 1992.\nAll such financial statements are complete and correct, have been prepared in\naccordance with generally accepted accounting principles applied on a consistent\nbasis, except as may be specified therein, and present fairly the consolidated\nfinancial condition of the Partnership as of the respective dates specified\ntherein, and the consolidated results of the operations of the Partnership for\nthe periods specified therein. As of the date hereof, there has been no material\nadverse change since November 29, 1991 involving the business, prospects or\nfinancial condition of the Partnership.\n\n            (k) Profit Plans. For the purposes of Section 12(B) of the Goldman\nSachs Profit Participation Plans and Similar Plans, no general partner of the\nPartnership constitutes a 'Protected Partner' of the Partnership.\n\n            (l) SBCM. All material terms of SBCM's investment in the Partnership\nand Goldman, Sachs &amp; Co. are as set forth in (i) the Memorandum of Agreement (as\namended through the date hereof), (ii) the Amended and Restated Memorandum of\nAgreement of Goldman, Sachs &amp; Co., (iii) the Amended and Restated Subscription\nAgreement, dated as of March 28, 1989, among The Sumitomo Bank Limited, SBCM,\nGoldman, Sachs &amp; Co. and the Partnership, and (iv) the\n\n\n                                      -6-\n\nLetter Agreement, dated as of December 6, 1991, between SBCM and the\nPartnership.\n\n            7.    Representations, Warranties and Agreements of KS\/BE, Knight's\n                  Parent and Knight.\n\n            KS\/BE, Knight's Parent and Knight each represents, warrants and\nagrees as of the date hereof that:\n\n            (a) Regulatory Approvals. There are no filings, notifications,\nconsents, approvals, authorizations or orders which KS\/BE, Knight's Parent or\nKnight (or any of their respective subsidiaries) is required to make with or\nsecure from governmental, regulatory or judicial authorities in order to\nconsummate the transactions contemplated by Section 2 hereof.\n\n            (b) Power and Authority. Each of KS\/BE, Knight's Parent and Knight\nhas full power and authority to enter into this Agreement; Knight has full power\nand authority to purchase the Partnership Interest, to enter into the\nRegistration Rights Agreement and to grant the irrevocable\nproxy\/power-of-attorney and proxy referred to in Sections 9(c) and 10(c) hereof,\nrespectively; KS\/BE and Knight's Parent each have full power and authority to\ngrant the irrevocable proxy referred to in Section 10(c) hereof; and each of\nKS\/BE, Knight's Parent and Knight has full power and authority to perform the\nobligations provided for herein and, in the case of Knight, in the Registration\nRights Agreement, all of which have been duly authorized by all proper and\nnecessary corporate or other action.\n\n            (c) Binding Agreements. This Agreement constitutes a valid and\nbinding agreement of KS\/BE, Knight's Parent and Knight. Each proxy and\nproxy\/power-of-attorney delivered pursuant to this Agreement, whether by KS\/BE,\nKnight's Parent or Knight, shall be valid and binding, shall be irrevocable and\nshall not be terminable by operation of law, dissolution or bankruptcy of KS\/BE,\nKnight's Parent or Knight or for any other reason (provided, however, that upon\na transfer permitted by this Agreement by KS\/BE, Knight's Parent or Knight of\nshares or other securities that are the subject of such proxy or\nproxy\/power-of-attorney to a third party, such proxy or proxy\/power-of-attorney\nshall terminate with respect to the shares or securities that are so\ntransferred). Each such irrevocable proxy and proxy\/power-of-attorney shall be\nenforceable according to its terms. When executed and delivered by Knight, the\nMemorandum of Agreement and the Registration Rights Agreement will each\nconstitute a valid and binding agreement of Knight.\n\n\n                                      -7-\n\n            (d) Litigation. As of the date of this Agreement, there are no\nproceedings or investigations pending or, so far as each of KS\/BE, Knight's\nParent and Knight knows, threatened before any court, arbitrator or governmental\nor administrative authority, instrumentality or agency which could affect the\nexecution, delivery and performance of this Agreement, the Registration Rights\nAgreement or the proxy\/power of attorney and proxy referred to in Sections 9(c)\nand 10(c) hereof by KS\/BE, Knight's Parent or Knight, as applicable.\n\n            (e) Legality. As of the date of this Agreement, the consummation of\nthe purchase and sale of the Partnership Interest, and the granting of the\nproxy\/power of attorney and proxy referred to in Section 9(c) and 10(c) hereof,\nare not prohibited under the laws of the United States to which KS\/BE, Knight's\nParent or Knight or their subsidiaries are subject.\n\n            (f) No Conflicts. There is no order or judgment, no provision of the\ncertificate of incorporation of Knight or Knight's Parent or the constituent\ndocuments of KS\/BE and no provision of any mortgage, indenture, contract or\nagreement binding on KS\/BE, Knight's Parent or Knight or affecting their\nproperty which would conflict with or prevent the execution, delivery or\nperformance of this Agreement or the Registration Rights Agreement, or the\ngranting of the proxy\/power of attorney and proxy referred to in Sections 9(c)\nand 10(c) hereof, and no consents or waivers of parties to any such mortgage,\nindenture, contract or agreement are required for KS\/BE'S, Knight's Parent's or\nKnight's execution, delivery or performance of this Agreement or the\nRegistration Rights Agreement, or the granting of the proxy\/power of attorney\nand proxy referred to in Sections 9(c) and 10(c) hereof.\n\n            (g) 1940 Act. Knight is not, and will not as a result of the\nconsummation of the transactions contemplated hereby and by the Knight\nPartnership Provisions become, an 'investment company' as such term is defined\nin the Investment Company Act of 1940, as amended, and each of KS\/BE, Knight's\nParent and Knight covenant and agree to operate the business of Knight or any\nsuccessor or assignee of Knight permitted by Section 15 hereof and Section 12 of\nthe Knight Partnership Provisions so as not to cause Knight or any such entity,\nas applicable, to become an 'investment company' at any time during the term\nhereof.\n\n\n                                      -8-\n\n            8. Certain Agreements.\n\n            (a) The Tax Matters Partner referred to in paragraph 11(g) of\nArticle I of the Memorandum of Agreement shall periodically notify and consult\nwith Knight during any administrative or judicial proceeding with respect to the\ndetermination of the taxable income of the Partnership. Notwithstanding the\nforegoing, the Tax Matters Partner shall have complete control of such\nadministrative or judicial proceeding and, to the extent permitted by the\nInternal Revenue Code and other applicable laws, Knight agrees to file all tax\nreturns consistently with the Partnership and to waive its rights to participate\nin any administrative or judicial proceeding with respect to the determination\nof the Partnership's taxable income.\n\n            (b) Upon request of Knight, the Partnership shall consider taking\nactions to reduce Knight's tax liabilities; provided, however, the Partnership\nneed not consider actions which would in the Partnership's sole judgment in any\nway adversely affect the Partnership, any general partner or any other limited\npartner.\n\n            (c) Upon Knight's request, the Partnership shall provide Knight with\n(i) schedules showing the determination of the capital accounts of Knight's\nPartnership Interest and its Actual and Imputed Share (and the Partnership shall\nmake appropriate persons available to provide Knight an explanation of, and to\ndiscuss with Knight the contents of, such schedules), (ii) annual audited\nconsolidated financial statements of Goldman, Sachs &amp; Co., and (iii) interim\nquarterly consolidated statements of income of the Partnership, as available.\n\n            (d) The Partnership agrees that, in the event KS\/BE, Knight's Parent\nor Knight incurs any expenses or liabilities as a result of the operation of\nSection 9 of\n\n\n                                      -9-\n\neither Article III or Article V or the last paragraph of paragraph 6 of Article\nI of the Memorandum of Agreement (other than liabilities expressly assumed by\nKS\/BE, Knight's Parent or Knight pursuant to such provisions), the Partnership\nwill indemnify and hold harmless KS\/BE, Knight's Parent and Knight, as the case\nmay be, against all such expenses (including reasonable fees and disbursements\nof counsel).\n\n            (e) Notwithstanding any provision of the Memorandum of Agreement,\n(i) none of KS\/BE, Knight's Parent or Knight shall, as a result of the entering\ninto this Agreement, the Knight Partnership Provisions or the Registration\nRights Agreement, or the consummation of the transactions contemplated hereby or\nthereby, be prevented from competing, directly or indirectly, with the\nPartnership, or any Firm or any Successor Partnership or Successor Business,\n(ii) KS\/BE, Knight's Parent and Knight each hereby authorize the Management\nCommittee of the Partnership to implement any Plan adopted and approved in\naccordance with paragraph 15 of Article I of the Memorandum of Agreement, and\neach irrevocably waives for itself and its successors and assigns any right to\ncontest the terms of any Plan adopted in accordance with said paragraph 15,\nwhether on grounds of unequal or disparate treatment, inconsistency or conflict\nwith the terms and provisions of the Memorandum of Agreement, unfairness or any\nother reason, provided, in each case, that such Plan is not inconsistent with\nSection 5 or 6(c), as the case may be, of the Knight Partnership Provisions, and\n(iii) Knight shall be entitled to give notices under the Memorandum of Agreement\nin the manner provided in this Agreement in respect of notices required under\nthe Memorandum of Agreement to be given to the Partnership.\n\n\n                                      -10-\n\n            9.    Absence of Control or Controlling Influence; Absence of\n                  Restrictions; Proxy\/Power-of-Attorney.\n\n            (a) Notwithstanding any provisions of this Agreement, the Memorandum\nof Agreement, any other agreements contemplated hereby or otherwise, KS\/BE,\nKnight's Parent and Knight each agree that it does not have, and that it will\nnot exercise or attempt to exercise and will prevent any successor thereof or\nany direct or indirect subsidiary thereof from exercising or attempting to\nexercise, by any action or omission to act, by virtue of any provision of this\nAgreement, the Memorandum of Agreement, any other agreements contemplated\nhereby, any requirement of law or otherwise, any control or controlling\ninfluence over the management, policies or affairs of the Partnership, the\nCompany, any successor or successors to the Partnership or the Company (other\nthan a successor pursuant to Section 6(c) of the Knight Partnership Provisions)\nor any direct or indirect subsidiary of the Partnership, the Company or any such\nsuccessor (each such entity being referred to in this Section 9 as a 'Goldman\nEntity'). The foregoing agreement shall extend, without limitation, to: (i) the\nmanagement of any Goldman Entity; (ii) the business affairs of any Goldman\nEntity; (iii) the financial, accounting or tax affairs of any Goldman Entity;\n(iv) any matters relating to partnership interests in or securities of a Goldman\nEntity, including, without limitation, the admission, withdrawal or retirement\nof general or limited partners or the election or retirement of managing\ndirectors or the issuance, payment, redemption or repurchase of debt or equity\nsecurities; (v) partner, managing director and employee affairs, including,\nwithout limitation, the hiring and termination of employees, partner, managing\ndirector and employee compensation, partner, managing director and employee\nbenefit arrangements and partner, managing director and employee retirement\narrange-\n\n\n                                      -11-\n\nments; and (vi) acquisitions by a Goldman Entity of all or part of any other\nentity, dispositions by a Goldman Entity of all or any part of a Goldman Entity,\ncombination by a Goldman Entity with any other entity, incorporation of all or\nany part of a Goldman Entity, or liquidation of all or any part of the business\nof a Goldman Entity, it being understood that the foregoing shall not constitute\na waiver by KS\/BE, Knight's Parent or Knight of any terms or provisions of this\nAgreement or of the Knight Partnership Provisions or the Incidental Partnership\nProvisions, and that, in any event, Knight shall be treated equally in relation\nto the general partners and SBCM according to Knight's Actual Share.\n\n            (b) Notwithstanding any provisions of this Agreement, the Memorandum\nof Agreement, any other agreements contemplated hereby or otherwise, each of\nKS\/BE, Knight's Parent and Knight agrees that there are not, and that it will\nnot impose or attempt to impose and will prevent any successor thereof or any\ndirect or indirect subsidiary thereof from imposing or attempting to impose, by\nany action or omission to act, by virtue of any provision of this Agreement, the\nMemorandum of Agreement, any other agreements contemplated hereby, or any\nrequirement of law or otherwise, any restrictions on matters relating to the\ncapital of any Goldman Entity. The foregoing agreement shall extend, without\nlimitation, to: (i) capital levels of, or increases to or withdrawals from\ncapital of, any Goldman Entity; (ii) the interest (or other return) paid on the\ncapital of limited partners (other than Knight) or, subject to the Partnership's\nagreement pursuant to Section 6(a) of the Knight Partnership Provisions, of\ngeneral partners of any Goldman Entity; or (iii) the issuance or retirement of\n(w) general partnership interests or limited partnership interests (other than\nKnight's limited partnership interest) of any\n\n\n                                      -12-\n Goldman Entity, or the capital stock held by managing directors or others of\nany Goldman Entity, (x) debt securities of any Goldman Entity, whether senior or\nsubordinated, short- or long-term, secured or unsecured, other than debt\nsecurities held by KS\/BE, Knight's Parent or Knight, (y) equity securities of\nany Goldman Entity or (z) options or warrants to acquire any securities of any\nGoldman Entity, it being understood that the foregoing shall not constitute a\nwaiver by KS\/BE, Knight's Parent or Knight of any terms or provisions of this\nAgreement or of the Knight Partnership Provisions or the Incidental Partnership\nProvisions, and that, in any event, Knight shall be treated equally in relation\nto the general partners and SBCM according to Knight's Actual Share.\n\n            (c) On the Closing Date, Knight shall deliver to the Partnership its\nirrevocable proxy\/power-of-attorney in the form set forth in Annex 3 hereto.\nKnight agrees, to the extent (if any) that such irrevocable\nproxy\/power-of-attorney is not enforceable under law, to provide its consent to\nany of the matters set forth therein and\/or to execute any of the amendments,\ndocuments or other instruments referred to therein promptly following written\ndemand by the Partnership.\n\n            10.   Agreements in the Event of Incorporation of the Partnership.\n\n            (a) Investment Representations; Non-Transferability. Knight\nrepresents that its acquisition hereby or from time to time hereafter of any\nSecurities (as defined below) of the Company or any other Goldman Entity\npursuant to this Agreement or the Memorandum of Agreement is or shall be for\ninvestment purposes. Except as provided in Section 10(b) below or as\ncontemplated by Section 15(d) below or Section 5(f) of Article VI of the\nMemorandum of\n\n\n                                      -13-\n\nAgreement, each of Knight, Knight's Parent and KS\/BE agrees that it shall not\nsell, transfer, exchange, make any assignment of (including an assignment for\nthe benefit of Knight's, Knight's Parent's or KS\/BE'S creditors or a transfer to\na trustee) or receive for the benefit of Knight's, Knight's Parent's or KS\/BE's\ncreditors, give away, pledge, hypothecate or otherwise dispose of any Securities\nhereby or from time to time hereafter acquired by it, nor shall Knight, Knight's\nParent or KS\/BE enter into any agreement as a result of which any person or\nentity will or could obtain any interest in such Securities. For purposes of\nthis Agreement, 'Securities' shall refer to (i) any common stock issuable to\nKnight in exchange for its Part J Actual Capital (including any common stock\nwhich may be issued in exchange therefor pursuant to Annex 7 hereof, 'Common\nStock'), and any preferred stock issuable to Knight in exchange for its Part K\nInterest, in each case as contemplated by the Knight Partnership Provisions, and\nany subscription rights for such common stock or preferred stock granted hereto\nor thereto, (ii) any other securities issuable to Knight pursuant to Section 5\nof the Knight Partnership Provisions and (iii) any other securities of the\nCompany or any other Goldman Entity issuable to Knight pursuant to this\nAgreement or the Knight Partnership Provisions. Any Securities issued shall be\nissued in registered form and, other than any Common Stock when disposed of to\nthe public, shall bear a legend in substantially the following form or such\nother form as KS\/BE and the Partnership (or the Company) may agree:\n\n            'THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE NOT TRANSFERABLE\n            AND ARE SUBJECT TO THE PROVISIONS OF A SUBSCRIPTION AGREEMENT, DATED\n            AS OF APRIL 24, 1992, AMONG ROYAL HAWAIIAN SHOPPING CENTER, INC.,\n            PAUAHI HOLDINGS CORPORATION, THE TRUSTEES OF THE ESTATE OF BERNICE\n            PAUAHI BISHOP AND THE GOLDMAN SACHS\n\n\n                                      -14-\n\n            GROUP, L.P. NO HOLDER OF THIS CERTIFICATE OTHER THAN KNIGHT SHALL BE\n            ENTITLED TO ANY RIGHTS HEREUNDER AND, IF HELD BY ANY SUCH HOLDER,\n            THIS CERTIFICATE AND THE SECURITIES EVIDENCED HEREBY SHALL BE VOID\n            AND BE DEEMED CANCELLED. THESE SECURITIES HAVE NOT BEEN REGISTERED\n            UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR THE SECURITIES\n            LAWS OF ANY OTHER JURISDICTION.'\n\n            (b) Disposition of Securities.\n\n            (i) Knight shall have the rights set forth in this Section 10(b) to\n      dispose from time to time of the Common Stock issuable to it pursuant to\n      the Knight Partnership Provisions and Annex 7 hereto.\n\n            (ii) Except as otherwise provided in (iv) below or in Section 2(c)\n      of the Registration Rights Agreement, Knight may dispose of Common Stock\n      only after the date when the Company shall have become a public company by\n      the initial registration by the Company of its common stock under the\n      Securities Act of 1933 (the '1933 Act'). Any such disposition may be made\n      only (x) by means of a widely-dispersed underwritten public offering in\n      conformity with regulatory requirements and guidelines applicable to\n      KS\/BE, Knight's Parent and Knight and (y) pursuant to the exercise of\n      Knight's demand right or piggy-back rights as set forth in the\n      Registration Rights Agreement attached as Annex 5 hereto (which sets forth\n      procedures for public offerings whether or not registered under the 1933\n      Act). The successor to the broker-dealer business of the Partnership\n      (hereinafter referred to as the 'Company Broker-Dealer') shall be the\n      book-running managing underwriter of the underwriting syndicate.\n\n            (iii) In connection with any disposition of securities of the\n      Company by the Company, Knight, the\n\n\n                                      -15-\n\n      Company's managing directors or otherwise, Knight agrees that it shall be\n      subject to the same customary limitations on sales following consummation\n      of such disposition as managing directors of the Company agree to with the\n      underwriters of such securities and that it will execute and deliver any\n      agreement to such effect required by such underwriters.\n\n            (iv) In addition to the demand right and piggy-back rights granted\n      pursuant to Section 10(b) (ii) hereof and the Registration Rights\n      Agreement, Knight shall be entitled, from and after the fifth anniversary\n      of the initial public offering by the Company of its common stock, to sell\n      its Common Stock in the manner and amounts permitted by Rule 144(e) under\n      the 1933 Act, or any similar successor provision, provided, that in the\n      case of any such sale the Company shall have received an opinion of\n      counsel to Knight acceptable to it that such sale may be made without\n      registration under the 1933 Act.\n\n            (c) Proxy and Voting Agreement.\n\n            (i) On the Closing Date, KS\/BE, Knight's Parent and Knight shall\n      each deliver to the Partnership its irrevocable proxy in the form set\n      forth in Annexes 4(a) and (b) hereto, respectively. KS\/BE, Knight's Parent\n      and Knight each further agree, to the extent (if any) that such\n      irrevocable proxy is not enforceable under law, to vote any securities of\n      the Company or any subsidiary of the Company held by it (whether acquired\n      pursuant to this Agreement or otherwise) in the manner provided in such\n      proxy. KS\/BE further agrees to cause any direct or indirect subsidiary\n      thereof (other than Knight's Parent or Knight) to vote any securities of\n      the Company or any subsidiary thereof that may be\n\n\n                                      -16-\n\n      acquired by such subsidiary of KS\/BE in the manner provided in KS\/BE's\n      foregoing proxy.\n\n            (ii) Knight understands that time is of the essence in a public\n      offering, and if, in connection with any recapitalization in connection\n      with a public offering, the Company wishes for any reason to modify the\n      terms of Knight's securities, Knight agrees to consider (without any\n      obligation to consent to) such modifications according to any reasonable\n      time schedule prescribed by the Company.\n\n            11. Delay in Closing Date; Adjustments.\n\n            In the event the Closing Date does not occur on or before April 24,\n1992, the Closing Date shall be automatically extended, subject to Section 13\nbelow, until the date when the conditions thereto are satisfied (or waived) and\nup to five business days thereafter, within which five business days the Closing\nDate shall occur. In the event of such extension, the parties shall mutually\nagree upon such adjustments to the terms hereof as shall be necessary or\nappropriate and shall use best efforts to have the Closing Date occur as soon as\npossible.\n\n            12. Confidentiality.\n\n            (a) Each party will keep confidential any and all information\nfurnished to it by another party or its representatives in connection with the\ntransactions contemplated by this Agreement, the Memorandum of Agreement and the\nother agreements referred to herein, except to the extent any such information\nis generally available to the public (other than as a result of a disclosure by\nsuch party or its representatives), and the parties will instruct their\nrespective partners, directors, officers, employees and other representatives\nhaving access to such information of such obligation \n\n\n                                      -17-\n\nof confidentiality. If this Agreement is terminated pursuant to Section 13(a)\nhereof, each party will return to the other all copies of material containing\ninformation disclosed to such party by the other. At the time this Agreement is\nterminated pursuant to Section 13(b) hereof or at the time immediately following\nan initial public offering registered under the 1933 Act by the Company, the\nparties hereto shall return to each other copies of materials previously\ndisclosed to the other through such time as the parties shall agree at such\ntime.\n\n            (b) Without limitation of the foregoing, KS\/BE, Knight's Parent and\nKnight each hereby specifically covenants and agrees that it shall not, in the\ncourse of making or securing filings, notifications, consents, approvals,\nauthorizations or orders with governmental or administrative agencies or bodies\nor courts for any reason following the date of this Agreement, disclose to any\nperson at any time any information (financial or other) concerning the\nPartnership which is not publicly disclosed, unless the Partnership otherwise\nconsents or unless pursuant to a court or administrative order or procedure.\n\n            (c) The parties agree that they will advise and confer with each\nother prior to the issuance of any report, statement, press release or other\nwritten statement identifying the other party or relating to the transactions\ncontemplated by this Agreement, the Memorandum of Agreement and the other\nagreements referred to herein and the implementation hereof and thereof. No\nreport, statement, press release or other written statement shall be\ndisseminated publicly or delivered to any other person without the specific,\nwritten consent of the other party, which consent may not be unreasonably\nwithheld, provided, however, that either party may deliver written statements to\n\n\n                                      -18-\n\nadministrative agencies or bodies or courts or trademark commissions, and\nprovided further, however, that the Partnership and KS\/BE may mutually agree\nupon guidelines for routine disclosures (i.e., references to the other in\nstockholder reports, brochures or other documents describing their respective\nbusinesses, etc.) pursuant to which the disclosures covered by such guidelines\nmay be made without specific or prior approval.\n\n            13. Termination.\n\n            This Agreement shall terminate:\n\n            (a) if the Closing Date does not occur on or before July 31, 1992\n      for any reason;\n\n            (b) on the date of payment of the distribution with respect to the\n      final year of a Withdrawal Period; or\n\n            (c) on the date of disposition by Knight or cancellation of the\n      Securities set forth in clause (i), and, if such are equity securities or\n      exercisable, convertible or otherwise exchangeable in any manner into\n      equity securities, (ii) or (iii) of Section 10(a) hereof;\n\nprovided, however, that (i) the agreements set forth in Sections 12, 14 and\n15(b) (as such relates to Sections 12 and 14) hereof shall continue indefinitely\nand (ii) the agreements set forth in Section 10(c) shall continue for a period\nof five years from the date of the final disposition or cancellation of all\nSecurities set forth in (c) above.\n\n            14. Governing Law; Arbitration.\n\n            (a) This Agreement is being entered into and is intended to be\nperformed in the State of New York and will\n\n\n                                      -19-\n\nbe construed and enforced in accordance with and governed by the laws of the\nState of New York.\n\n            (b) Any dispute, controversy or claim arising out of or relating to\nprovisions of this Agreement and each of the Annexes hereto shall be finally\nsettled by arbitration in accordance with the Arbitration Rules of the United\nNations Commission on International Trade Law ('UNCITRAL') in effect on the date\nof this Agreement. The number of arbitrators shall be three and the\nAdministering Authority shall be the American Arbitration Association. The\ntribunal shall adopt rules of procedure supplementary to the rules of UNCITRAL\nas it deems equitable under the circumstances. All direct costs of an\narbitration proceeding under this Section, including fees and expenses of\narbitration, shall be borne equally by the parties hereto. All other costs,\nincluding counsel and witness fees, shall be borne by the party incurring them.\nThe place of arbitration shall be The City of New York. The arbitration shall be\nconducted in the English language. An award rendered by all or a majority of the\narbitrators shall be final and binding, and judgment may be entered upon it in\nany court having jurisdiction. In no event shall this subsection be construed as\nconferring upon any court authority or jurisdiction to inquire into or review\nsuch award on its merits. The parties agree to exclude any right of application\nor appeal to the Federal, New York State and any other courts in connection with\nany question of law or fact arising in the course of the arbitration or with\nrespect to any award made.\n\n            15.   Ownership of Knight; KS\/BE Agreement with Respect to Knight;\n                  Assignment.\n\n            (a) KS\/BE, Knight's Parent and Knight each agrees that Knight, and\nany assignee of Knight pursuant to Section 15(d) below (other than KS\/BE), will\nremain a wholly-\n\n\n                                      -20-\n\nowned subsidiary of KS\/BE or of another wholly-owned subsidiary of KS\/BE. Except\nas provided in Section 15(d) below and Section 12 of the Knight Partnership\nProvisions, none of KS\/BE, Knight's Parent or Knight shall (i) have any right to\nsell, transfer, exchange, make any assignment of (including in assignment for\nthe benefit of Knight's or KS\/BE's creditors or a transfer to a trustee) or\nreceive for the benefit of Knight's or KS\/BE's creditors, give away, pledge,\nhypothecate, or otherwise to dispose of any of Knight's interest in the\nPartnership or in the profits or assets thereof, or KS\/BE's interest, direct or\nindirect, in Knight, or (ii) have the right to enter into any agreement as a\nresult of which any person or entity will or could obtain any interest in the\nPartnership or the Partnership Interest, or KS\/BE's interest, direct or\nindirect, in Knight.\n\n            (b) KS\/BE, Knight's Parent and Knight each agrees that (i) the\nequity securities of Knight and Knight's Parent shall at all times during the\nterm hereof be owned, directly or indirectly, by KS\/BE, (ii) any securities of\nKnight or Knight's Parent other than common equity securities shall be either\n(x) non-recourse to Knight or Knight's Parent, or (y) guaranteed by, or\notherwise entitled to the credit support of, KS\/BE, and (iii) Knight's interest\nin the Partnership will not be used, directly or indirectly, as a means of\nobtaining financing for KS\/BE or any of its direct or indirect subsidiaries, and\nno representations specifically regarding the Partnership or the performance of\nthe Partnership Interest, nor any information regarding the Partnership or the\nPartnership Interest which is subject to Section 12(a) hereof, shall be provided\nin connection with any such financing.\n\n\n                                      -21-\n\n            (c) KS\/BE agrees that it shall cause Knight to perform all the\nobligations of Knight contained in this Agreement, the Memorandum of Agreement\nand the other agreements contemplated hereby and thereby.\n\n            (d) Each of KS\/BE, Knight's Parent and (except as provided in the\nnext sentence) Knight may not assign this Agreement or any of the other\nagreements contemplated hereby or by the Memorandum of Agreement to any party.\nWith the consent of the Partnership (which shall not be unreasonably withheld),\nKnight or Knight's Parent may assign this Agreement to KS\/BE or another directly\nor indirectly wholly-owned subsidiary of KS\/BE organized under the laws of any\nUnited States jurisdiction, provided that KS\/BE or such subsidiary shall execute\nand deliver such amendments to, or documents or instruments of assumption of,\nthis Agreement, the Memorandum of Agreement and the other agreements\ncontemplated hereby and thereby (including the irrevocable proxies and\nproxy\/power-of-attorney) as are required by the Partnership so as to become a\nparty thereto successor to Knight or Knight's Parent, as the case may be, with\nall rights and obligations provided herein and therein. Such assignment shall\nrelease the assignor from its obligations hereunder. Any assignment made in\nviolation of this provision shall be null and void.\n\n            16.   Survival of Agreement; Further Assurances.\n\n            (a) All terms and provisions of this Agreement shall survive\nexecution and delivery of this Agreement, the Closing Date and any investigation\nmade at any time by any party or on its behalf until terminated pursuant to\nSection 13 hereof; provided, however, that the representations and warranties of\nthe Partnership contained in Section 6 and of KS\/BE and Knight contained in\nSection 7 shall terminate on December 31, 1993.\n\n\n                                      -22-\n\n            (b) Each of KS\/BE, Knight and the Partnership agrees that, in the\nevent any of the consents, approvals, authorizations or orders secured in order\nto consummate the transactions contemplated hereby are threatened to be modified\nor revoked, each shall use its best efforts to prevent such modification or\nrevocation.\n\n            17. Registered Address; Notices.\n\n            All notices and other communications hereunder shall be in writing\nand shall be mailed by first class mail, postage prepaid, addressed (a) if to\nKS\/BE, Knight's Parent or Knight, at The Trustees of the Kamehameha\nSchools\/Bernice Pauahi Bishop Estate, P.O. Box 3466, 567 South King Street,\nSuite 200, Honolulu, Hawaii 96801, Attention: Nathan T.K. Aipa, General Counsel,\nor at such other address as KS\/BE, Knight's Parent or Knight shall furnish to\nthe Partnership in writing, or (b) if to the Partnership, at 85 Broad Street,\nNew York, New York 10004, Attention: Robert J. Katz, General Counsel, or at such\nother address as the Partnership shall have furnished to KS\/BE, Knight's Parent\nor Knight in writing.\n\n            18. Miscellaneous.\n\n            (a) For purposes of Clause (i) of the definition of 'General\nPartners' Capital' set forth in the Knight Partnership Provisions, those certain\ninvestments made by the Partnership and Affiliates prior to November 29, 1991\nare set forth in Annex 8 hereto.\n\n            (b) Annex 9 hereto contains a schedule setting forth certain\ncalculations in respect of Knight's Actual Share.\n\n            (c) This Agreement will be binding upon and inure to the benefit of\nand be enforceable by the respective\n\n\n                                      -23-\n\nsuccessors and assigns of the parties hereto (including, with respect to the\nPartnership, the Company). No recourse under or upon any obligation of the\nPartnership contained in this Agreement shall be had against any current or\nfuture partner of the Partnership. This Agreement embodies the entire agreement\nand understanding between KS\/BE, Knight and the Partnership and supersedes all\nprior agreements and understandings relating to the subject matter hereof,\nwhether written or oral. The headings in this Agreement are for purposes of\nreference only and shall not limit or otherwise affect the meaning thereof. This\nAgreement may be executed in any number of counterparts, each of which shall be\nan original, but all of which together shall constitute one instrument.\n\n\n                                      -24-\n\n      IN WITNESS WHEREOF, the parties hereto have executed and delivered this\nAgreement as of the date first above written.\n\n                                        THE TRUSTEES OF THE ESTATE OF\n                                        BERNICE PAUAHI BISHOP\n\n                                        By: \/s\/ Henry H. Peters\n APPROVED AS TO FORM                        -------------------------------\nCONTENTS &amp; AUTHORIZATION                    Henry H. Peters         TRUSTEE\n                      \n   \/s\/ [ILLEGIBLE]                      By: \/s\/ William S. Richardson\n----------------------                      -------------------------------\n   LEGAL DEPARTMENT                         William S. Richardson   TRUSTEE\n\n                                        By: \/s\/ Matsuo Takabuki\n                                            -------------------------------\n                                            Matsuo Takabuki         TRUSTEE\n\n\n                                        ROYAL HAWAIIAN SHOPPING\n                                        CENTER, INC.\n\n\n                                        By: \/s\/ [ILLEGIBLE]\n                                            -------------------------------\n                                            Title: PRESIDENT\n\n                                        By: \/s\/ [ILLEGIBLE]\n                                            -------------------------------\n                                            Title: TREASURER\n\n\n                                        PAUAHI HOLDINGS CORPORATION\n\n                                        By: \/s\/ [ILLEGIBLE]\n                                            -------------------------------\n                                            Title: PRESIDENT\n\n                                        By: \/s\/ [ILLEGIBLE]\n                                            -------------------------------\n                                            Title: Vice PRESIDENT\n\n\n                                        THE GOLDMAN SACHS GROUP, L.P.\n\n                                        By: \/s\/ [ILLEGIBLE]\n                                            -------------------------------\n                                            Title: Partner\n\n\n                                      -25-\n\n                       Annex 5 to Subscription Agreement\n\n                         REGISTRATION RIGHTS AGREEMENT\n\n            REGISTRATION RIGHTS AGREEMENT, dated as of April 24, 1992 (the\n'Agreement'), between Royal Hawaiian Shopping Center, Inc. ('Knight'), a Hawaii\ncorporation and an indirect wholly-owned subsidiary of The Trustees of the\nEstate of Bernice Pauahi Bishop, a private educational charitable trust\norganized under the laws of the State of Hawaii ('KS\/BE'), and The Goldman Sachs\nGroup, L.P., a limited partnership organized under the laws of Delaware (the\n'Partnership').\n\n            WHEREAS, pursuant to a Subscription Agreement, dated as of April 24,\n1992, among KS\/BE, Knight's Parent, Knight and the Partnership (the\n'Subscription Agreement'), Knight is purchasing as of the date hereof a limited\npartnership interest in the Partnership, as described in the Subscription\nAgreement and in the 'Knight Partnership Provisions' referred to in Section 2 of\nthe Subscription Agreement (the 'Knight Partnership Provisions'); and\n\n            WHEREAS, pursuant to Section 10(b) of the Subscription Agreement,\nthe Partnership has granted Knight certain registration rights with respect to\nsecurities of the Partnership's corporate successor (the 'Company') in the event\nthe Partnership incorporates and registers its common stock under the Securities\nAct of 1933 (the '1933 Act');\n\n            THEREFORE, the parties agree as follows:\n\n            1. Definitions.\n\n            The terms used in this Agreement which are defined in the\nSubscription Agreement or in the Knight Partnership Provisions have the\nrespective meanings set forth therein.\n\n            2. Piggy-Back Registration Rights.\n\n            (a) (i) Following the initial U.S. registered public offering of the\nCompany's common stock, in the event the Company intends (x) to file a\nregistration statement under the 1933 Act with respect to an offering of its\nsecurities or to publicly offer its securities outside the United States and (y)\nto offer managing directors of the\n\nCompany rights to include up to a specified maximum aggregate number of\nadditional shares of common stock owned by them in such registration statement\nor foreign offering, the Company shall provide Knight with notice of such\nintention no less than 20 business days prior to such filing or to the\ncommencement of such foreign offering. Knight is hereby granted rights to\nparticipate with the Company's managing directors in such registration statement\nor foreign offering on a pro rata basis with the managing directors. In the\nevent Knight elects to have Common Stock registered (or, in the case of a\nforeign offering, offered) on its behalf, Knight may have registered (or\noffered) such percentage of the maximum number of shares of Common Stock to be\nregistered (or offered) on behalf of Knight, SBCM and the managing directors as\nequals the percentage obtained by dividing (x) the number of shares of Common\nStock sought to be registered (or offered) at such time by Knight on its behalf,\nby (y) the sum of such number of shares and the aggregate number of shares of\nthe Company's common stock sought to be registered (or offered) at such time by\nSBCM and by the managing directors on their behalf.\n\n            (ii) Knight may elect to exercise the foregoing rights by giving\nwritten notice (an 'Election Notice') of its election to participate and the\nnumber of shares of Common Stock of its desired participation to the Company\nwithin 10 business days of receipt by Knight of the foregoing notice from the\nCompany. On receipt of Knight's election to participate, the Company shall\neither include such shares of Common Stock on behalf of Knight in the\nregistration statement or foreign offering or, within 10 business days of\nreceipt by the Company of Knight's notice, deliver written notice (a 'Purchase\nNotice') to Knight specifying either that the Company elects or that the Company\nis affording its managing directors the right to\n\n\n                                      -2-\n\nelect (with or without the Company) to purchase all or a portion of the shares\notherwise to be registered or offered on behalf of Knight in lieu of including\nthem in the registration statement or foreign offering. In the event the Company\nprovides in its Purchase Notice that it will offer purchase rights to its\nmanaging directors in all or any portion of the shares the subject of Knight's\nElection Notice, the Company shall have a period of ten business days from the\ndelivery of the Purchase Notice within which to determine and notify Knight by a\nsubsequent written notice (the 'MD Purchase Notice') as to the number of shares\nto be purchased by the managing directors and the Company. Thereafter, the\nCompany shall be obligated to purchase (together, if applicable, with the\nmanaging directors specified in any MD Purchase Notice) the shares the subject\nof such Purchase Notice or MD Purchase Notice, as the case may be, from Knight\non or prior to the consummation of the registered or foreign public offering.\nThe purchase price applicable to such purchase shall be the initial public\noffering price of the shares actually sold pursuant to the registration\nstatement or foreign offering, less the applicable gross underwriting discount.\n(If such registered or foreign public offering is not consummated, however, the\nCompany and\/or the managing directors shall not be required to purchase any\nshares from Knight pursuant to this paragraph.)\n\n            (iii) In the event the Company does not deliver a Purchase Notice\nand intends to proceed with a registered or foreign public offering including\nCommon Stock on behalf of Knight, and in the event Knight does not provide the\nCompany in writing with the information concerning Knight required to be\nincluded in the registration statement or offering circular on or prior to five\nbusiness days prior to the date of the Company's intended filing of the\nregistration\n\n\n                                      -3-\n\nstatement or commencement of the offering, the Company need not include shares\non behalf of Knight in the registration statement or foreign offering.\n\n            (b) In the event the Company includes Common Stock in a registration\nstatement or foreign offering on behalf of Knight pursuant to this Section 2,\nthe Company may file said registration statement with the Securities Exchange\nCommission (if applicable) and offer the Common Stock to the public in the\nmanner and according to the time schedule chosen by the Company in its sole\ndiscretion, including, without limitation, the choice of representatives,\nunderwriters, the form of underwriting agreement, the United States\njurisdictions in which the securities shall be registered or qualified, etc.,\nprovided, however, that the underwriting agreement as it relates to Knight and\nthe reimbursement of expenses, indemnification and contribution provided by the\nCompany to the underwriters with respect to Common Stock sold on behalf of\nKnight shall, except as otherwise provided in this Section 2(b), be in such form\nas the Company Broker-Dealer customarily uses at the time of such offering with\nclients with regard to such type of secondary offering of equity securities (the\n'Standard Form'), provided (i) the representations and warranties and agreements\nof the Company and the opinions of counsels for the Company contained in the\nStandard Form shall be appropriately modified so as to be not more burdensome to\nthe Company than the representations and warranties and the opinions delivered\nin connection with the Company's initial public offering, (ii) the expenses of\nsuch registration and offering shall be borne by the parties as set forth in\nthis Section 2(b), (iii) the representations and warranties, agreements and\nopinions of counsel made or deliverable on behalf of Knight as selling\nstockholder to the underwriters under the Standard Form may have such\n\n\n                                      -4-\n\nmodifications thereto as the Company Broker-Dealer and Knight shall negotiate\nin good faith at the time of such offering and (iv) in consideration and as part\nof the purchases and sales and other transactions contemplated by the\nSubscription Agreement, the Company (and not Knight) shall provide reimbursement\nof expenses, indemnification and contribution to the underwriters and their\ncontrolling persons as set forth in the Standard Form. In addition, any\ndisposition of Common Stock on behalf of Knight must be in a widely-dispersed\npublic offering and in conformity with regulatory requirements and guidelines\napplicable to KS\/BE and Knight. The Partnership and Knight further agree that\nKnight shall pay the expenses of the Company in connection with an offering\npursuant to this Section 2 on a pro rata basis with the managing directors, the\nCompany and any other party participating in such registration statement or\noffering (i.e., pro rata on the basis of the aggregate initial public offering\nprice of Common Stock included on Knight's, the managing directors', the\nCompany's and any such party's behalf in said registration statement or foreign\noffering). Knight shall also pay all its own expenses in connection therewith.\n\n            (c) In the event managing directors of the Company are afforded\npiggy-back registration rights in the initial public offering of the Company's\ncommon stock, Knight shall have the right to participate in such registration\nstatement on a pro rata basis with such managing directors as specified in this\nSection 2, provided that Knight must deliver written notice of the exercise of\nits rights within 10 business days of notification by the Company, which\nnotification by the Company need not precede the filing of the registration\nstatement by more than 20 business days.\n\n\n                                      -5-\n\n            3. Demand Right.\n\n            (a) (i) In the event that Knight has not had the opportunity to\nexercise and sell shares pursuant to the piggy-back registration rights granted\nto it pursuant to Section 2 hereof and Section 10(b) of the Subscription\nAgreement (other than as a result of the exercise by the Company or its managing\ndirectors of their respective purchase rights under Section 2(a)(ii) hereof)\nprior to the fifth anniversary of the initial U.S. registered public offering by\nthe Company of its common stock, it shall have the right, at any time during the\nterm hereof after such fifth anniversary, to exercise the demand right referred\nto in Section 10(b)(ii) of the Subscription Agreement by providing written\nnotice (a 'Disposition Notice') to the Company of its intention to exercise such\ndemand right and specifying the number of shares of Common Stock sought to be\ndisposed of and whether Knight desires that the offering be made in the United\nStates and\/or outside the United States.\n\n            (ii) On receipt of a Disposition Notice, the Company may indicate,\nby written notice (a 'Delay Notice') delivered to Knight within ten business\ndays of receipt by the Company of the Disposition Notice, that Knight may not\ndispose of any Common Stock during a period of up to 90 days (as specified in\nthe Delay Notice) following the Company's receipt of the Disposition Notice if,\nin the judgment of the Company in its sole discretion, such disposition would\ninterfere with a public offering of the Company's securities to be made by the\nCompany (within or outside the United States) during such specified period, and\nKnight shall have no right to proceed with the proposed distribution during such\nperiod (although Knight may otherwise be afforded piggy-back rights to\nparticipate in such public offering pursuant to Section 2 hereof).\n\n\n                                      -6-\n\n            (iii) In the event the Company does not proceed with the filing of a\nregistration statement under the 1933 Act with respect to such a public offering\nor otherwise commence a public offering outside the United States within the\nperiod specified in the Delay Notice, Knight shall be entitled to deliver\nanother Disposition Notice at the end of the specified period if Knight still\ndesires to effect a disposition, and the Company shall have no further right to\ndeliver a Delay Notice with respect to such intended distribution unless Knight\nhas not made such distribution (other than due to the fault of the Company)\nwithin 90 days of delivery to the Company of the second Disposition Notice.\n\n            (b) Following receipt of a Disposition Notice, if the Company does\nnot deliver a Delay Notice, the Company may deliver a Purchase Notice or an MD\nPurchase Notice in the manner set forth in Section 2(a)(ii) hereof, and the\nCompany, or the managing directors and the Company, as the case may be, shall\nhave a period of ten business days following delivery of the Purchase Notice or\nMD Purchase Notice (as applicable) to consummate the purchase of the shares\ntherein specified. In the event the Company specifies pursuant to the Purchase\nNotice or the MD Purchase Notice (as applicable) that only a portion of the\nshares the subject of the Disposition Notice are to be purchased, the Company\nshall be obligated to proceed at such time with the disposition in a widely\ndispersed public offering of the portion of the shares not specified to be\npurchased. The purchase price applicable to any purchase of shares of Common\nStock pursuant to this paragraph (b) shall be the average closing price for the\n20 trading days prior to the date of the Disposition Notice, less an amount\nequal to the gross underwriting discount that would be applicable to a\nwidespread United States public offering on the date of the Purchase Notice with\nrespect to such shares as justified in\n\n\n                                      -7-\n\na written statement delivered by the Company and the Company Broker-Dealer to\nKnight.\n\n            (c) In the event the Company registers Common Stock of Knight under\nthe 1933 Act pursuant to the exercise of Knight's demand right as set forth in\nSection 10(b) of the Subscription Agreement and this Section 3 (in an offering\nwithin or outside the United States), the following procedures and agreements\nshall govern:\n\n            (i) The Company will use its best efforts to prepare and file with\n      the Securities and Exchange Commission (the 'Commission') a registration\n      statement with respect to the Common Stock as promptly as practicable\n      after the date on which the Company became obligated pursuant to Sections\n      3(a) or (b) above to participate in a public offering; provided, however,\n      the Company need not file such registration statement until it has\n      received in writing from Knight the information required to be provided by\n      Knight for inclusion in the registration statement. Unless Knight and the\n      Company otherwise agree, the Company will use its best efforts to cause\n      the registration statement to become effective as promptly as practicable\n      following the date on which the registration statement is filed with the\n      Commission.\n\n            (ii) Following the effective date of the registration statement, the\n      Company will prepare and file with the Commission such amendments or\n      supplements to the registration statement (or to the prospectus forming a\n      part thereof) as may be required pursuant to the underwriting agreement\n      referred to below.\n\n            (iii) The Company shall take such action as Knight or the\n      representatives of the underwriters of the offering (the\n      'Representatives') shall request to\n\n\n                                      -8-\n\n      qualify the Common Stock to be disposed of for offering and sale under the\n      securities laws of such United States jurisdictions as the Representatives\n      may reasonably request and to comply with such laws so as to permit\n      continuance of sales and dealings therein for such period as may be\n      required pursuant to the underwriting agreement referred to below;\n      provided, however, in connection therewith the Company shall not be\n      required to qualify as a foreign corporation or to file a general consent\n      to service of process in any jurisdiction.\n\n            (d) In connection with any such offering the Company, Knight and the\nRepresentatives shall enter into a Standard Form underwriting agreement as\nprovided in Section 2(b) above, except that Knight shall pay all expenses of the\nCompany and Knight in connection with such offering, including the following:\n(i) the fees, disbursements and expenses of the Company's counsel(s) (United\nStates and foreign) and accountants in connection with the registration of the\nCommon Stock to be disposed of under the 1933 Act and all other expenses in\nconnection with the preparation, printing and filing of the registration\nstatement, any preliminary prospectus or final prospectus, any other offering\ndocument and amendments and supplements thereto and the mailing and delivering\nof copies thereof to the underwriters and dealers; (ii) the cost of printing or\nproducing any agreement(s) among underwriters, underwriting agreement(s), any\nBlue Sky or Legal Investment memoranda, any selling agreements and any other\ndocuments in connection with the offering, sale or delivery of the Common Stock\nto be disposed of; (iii) all expenses in connection with the qualification of\nthe Common Stock to be disposed of for offering and sale under state securities\nlaws, including the fees and disbursements of counsel for the underwriters in\n\n\n                                      -9-\n\nconnection with such qualification and in connection with any Blue Sky and Legal\nInvestment surveys; (iv) the filing fees incident to securing any required\nreview by the National Association of Securities Dealers, Inc. of the terms of\nthe sale of the Common Stock to be disposed of; (v) all costs and expenses of\nthe underwriters which would otherwise be reimbursed or paid for by the Company;\nand (vi) all costs and expenses incident to the performance of Knight's\nobligations in connection with the offering, including (x) any fees and expenses\nof counsel(s) for Knight, (y) the fees and expenses of any attorney-in-fact or\ncustodian for Knight or any depositary and (z) all expenses and taxes (domestic\nand foreign) incident to the sale and delivery by Knight to the underwriters of\nthe Common Stock to be disposed of. The Company shall pay the costs and charges\nof any transfer agent or registrar and the cost of preparing certificates for\nshares of Common Stock to be disposed of.\n\n            4. Reimbursement of Expenses, Indemnification and Contribution.\n\n            (a) The Company will indemnify and hold harmless Knight against any\nlosses, claims, damages or liabilities to which Knight may be subject, under the\nAct or otherwise, insofar as such losses, claims, damages or liabilities (or\nactions in respect thereof) arise out of or are based upon an untrue statement\nor alleged untrue statement of a material fact contained in any preliminary\nprospectus or final prospectus, any registration statement, any offering\ncircular (or other offering document) or any amendment or supplement thereto, or\narise out of or are based upon (i) in connection with an offering registered\nunder the 1933 Act, the omission or alleged omission to state therein a material\nfact required to be stated therein or necessary to make the statements therein\nnot misleading or (ii) in connection with\n\n\n                                      -10-\n\nan offering not registered under the 1933 Act, the omission or alleged omission\nto state therein a material fact necessary in order to make the statements\ntherein, in the light of the circumstances under which they were made, not\nmisleading, and will reimburse Knight from time to time upon request for any\nlegal or other expenses reasonably incurred by Knight in connection with\ninvestigating or defending any such action or claim; provided, however, that the\nCompany shall not be liable to Knight in any such case to the extent that any\nsuch loss, claim, damage or liability arises out of or is based upon an untrue\nstatement or alleged untrue statement or omission or alleged omission made in\nany preliminary prospectus or final prospectus, any registration statement, any\noffering circular (or other offering document) or any such amendment or\nsupplement in reliance upon and in conformity with written information furnished\nto the Company by Knight for use therein.\n\n            (b) Knight and KS\/BE will, jointly and severally, indemnify and hold\nharmless the Company against any losses, claims, damages or liabilities to which\nthe Company may become subject, under the Act or otherwise, insofar as such\nlosses, claims, damages or liabilities (or actions in respect thereof) arise out\nof or are based upon an untrue statement or alleged untrue statement of a\nmaterial fact contained in any preliminary prospectus or final prospectus, any\nregistration statement, any offering circular (or other offering document) or an\namendment or supplement thereto, or arise out of or are based upon (i) in\nconnection with an offering registered under the 1933 Act, the omission or\nalleged omission to state therein a material fact required to be stated therein\nor necessary to make the statements therein not misleading or (ii) in connection\nwith an offering not registered under the 1933 Act, the omission or alleged\nomission to state therein a material fact necessary\n\n\n                                      -11-\n\nin order to make the statements therein, in the light of the circumstances under\nwhich they were made, not misleading, and will reimburse the Company for any\nlegal or other expenses reasonably incurred by the Company in connection with\ninvestigating or defending any such action or claim; provided, however, that\nKnight and KS\/BE shall not be liable in any such case to the extent that any\nsuch loss, claim, damage or liability arises out of or is based upon an untrue\nstatement or alleged untrue statement or omission or alleged omission made in\nany preliminary prospectus or final prospectus, any registration statement, any\noffering circular (or other offering document) or any such amendment or\nsupplement other than in reliance upon and in conformity with written\ninformation furnished to the Company by Knight expressly for use therein.\n\n            (c) Promptly after receipt by an indemnified party under paragraph\n(a) or (b) above of notice of the commencement of any action, such indemnified\nparty shall, if a claim in respect thereof is to be made against the\nindemnifying party under such paragraph, notify the indemnifying party in\nwriting of the commencement thereof; but the omission so to notify the\nindemnifying party shall not relieve it from any liability which it may have to\nthe indemnified party otherwise than under such paragraph. In case any such\naction shall be brought against the indemnified party and it shall notify the\nindemnifying party of the commencement thereof, the indemnifying party shall be\nentitled to participate therein and, to the extent that it shall wish, to assume\nthe defense thereof, with counsel reasonably acceptable to the indemnified party\n(which may include Sullivan &amp; Cromwell), and, after notice from the indemnifying\nparty to the indemnified party of its election so to assume the defense thereof,\nthe indemnifying party shall not be liable to the indemnified party under such\n\n\n                                      -12-\n\nparagraph for any legal expenses of other counsel or any other expenses, in each\ncase subsequently incurred by the indemnified party, in connection with the\ndefense thereof other than reasonable costs of investigation; provided, however,\nthat, in the event such indemnified party shall have reasonably concluded that\nthere are defenses available to it which are different from or additional to\nthose available to the indemnifying party, the indemnifying party shall not have\nthe right to direct the defense of such action as it relates to such defenses on\nbehalf of such indemnified party and the fees and expenses of separate counsel\nrelating to such defenses for such indemnified party shall be borne by the\nindemnifying party. In no event shall the indemnifying party be liable for the\nreasonable fees and expenses of more than one local counsel in connection with\nany one action or separate but similar or related actions in the same\njurisdiction arising out of the same general allegations or circumstances and\none national counsel coordinating all such actions.\n\n            (d) If the indemnification provided for in this Section 4 is\nunavailable to or insufficient to hold harmless an indemnified party under\nsubsection (a) or (b) above in respect of any losses, claims, damages or\nliabilities (or actions in respect thereof) referred to therein, then the\nindemnifying party shall contribute to the amount paid or payable by the\nindemnified party as a result of such losses, claims, damages or liabilities (or\nactions in respect thereof) in such proportion as is appropriate to reflect not\nonly (i) the relative benefits received by the Company on the one hand and\nKnight and KS\/BE on the other from the offering of Common Stock on behalf of\nKnight but also (ii) the relative fault of the Company on the one hand and\nKnight and KS\/BE on the other in connection with the statements or omissions\nwhich resulted in such losses,\n\n\n                                      -13-\n\nclaims, damages or liabilities (or actions in respect thereof), as well as any\nother relevant equitable considerations. The relative fault shall be determined\nby reference to, among other things, whether the untrue or alleged untrue\nstatement of a material fact or the omission or alleged omission to state a\nmaterial fact relates to information supplied by the Company or Knight and the\nparties' relative intent, knowledge, access to information and opportunity to\ncorrect or prevent such statement or omission. The partnership and Knight agree\nthat it would not be just and equitable if contributions pursuant to this\nparagraph (d) were determined by pro rata allocation or by any other method of\nallocation which does not take account of the equitable considerations referred\nto above in this paragraph (d). The amount paid or payable by an indemnified\nparty as a result of the losses, claims, damages or liabilities (or actions in\nrespect thereof) referred to above in this paragraph (d) shall be deemed to\ninclude any legal or other expenses reasonably incurred by such indemnified\nparty in connection with investigating or defending any such action or claim. No\nperson guilty of fraudulent misrepresentation (within the meaning of Section\n11(f) of the 1933 Act) shall be entitled to contribution from any person who was\nnot guilty of such fraudulent misrepresentation.\n\n            (e) The obligations of the Company, Knight and KS\/BE under this\nSection 4 shall be in addition to any liability which the Company, Knight and\nKS\/BE may otherwise have and shall extend, upon the same terms and conditions,\nto each person, if any, who controls the Company or Knight or KS\/BE,\nrespectively, within the meaning of the 1933 Act (including, as to Knight,\nKnight's Parent and KS\/BE) and to their respective officers, directors and\nTrustees.\n\n\n                                      -14-\n\n            5. Governing Law; Arbitration.\n\n            (a) This Agreement is being entered into and is intended to be\nperformed in the State of New York and will be construed and enforced in\naccordance with and governed by the laws of the State of New York.\n\n            (b) Any dispute, controversy or claim arising out of or relating to\nprovisions of this Agreement shall be finally settled by arbitration in\naccordance with the Arbitration Rules of the United Nations Commission on\nInternational Trade Law ('UNCITRAL') in effect on the date of this Agreement.\nThe number of arbitrators shall be three and the Administering Authority shall\nbe the American Arbitration Association. The tribunal shall adopt rules of\nprocedure supplementary to the rules of UNCITRAL as it deems equitable under the\ncircumstances. All direct costs of an arbitration proceeding under this Section,\nincluding fees and expenses of arbitration, shall be borne equally by the\nparties hereto. All other costs, including counsel and witness fees, shall be\nborne by the party incurring them. The place of arbitration shall be The City of\nNew York. The arbitration shall be conducted in the English language. An award\nrendered by all or a majority of the arbitrators shall be final and binding, and\njudgment may be entered upon it in any court having jurisdiction. In no event\nshall this subsection be construed as conferring upon any court authority or\njurisdiction to inquire into or review such award on its merits. The parties\nagree to exclude any right of application or appeal to the Federal, New York\nState or other courts in connection with any question of law or fact arising in\nthe course of the arbitration or with respect to any award made.\n\n\n                                      -15-\n\n            6. Assignment; Assumption.\n\n            (a) Knight may not assign this Agreement to any party, other than\n(i) to KS\/BE or Knight's Parent, or (ii) otherwise in connection with an\nassignment duly approved by the partnership pursuant to Section 15(d) of the\nSubscription Agreement. Any assignment made in violation of this Section 6 shall\nbe null and void.\n\n            (b) In the event the Partnership or the Company sells or transfers\nits business to or otherwise combines with any person and Knight receives\nsecurities of such person in an exchange subject to Section 6(c) of the Knight\nPartnership Provisions, the Partnership (and the Company) and Knight agree that\nthe Partnership's (or the Company's) remaining obligations (if any) under this\nAgreement shall be assumed, as a term of such sale, transfer or combination, by\nsuch other person on terms consistent to the fullest extent practicable with the\nterms hereof.\n\n            7. Registered Address; Notices.\n\n            All notices and other communications hereunder shall be in writing\nand shall be mailed by first class mail, postage prepaid, addressed (a) if to\nKS\/BE, Knight's Parent or Knight, at The Kamehameha Schools\/Bernice Pauahi\nBishop Estate, P.O. Box 3466, 567 South King Street, Suite 200, Honolulu, Hawaii\n96801, Attention: Nathan T.K. Aipa, Esq., General Counsel, or at such other\naddress as Knight shall furnish to the Partnership in writing, or (b) if to the\nPartnership, at 85 Broad Street, New York, New York 10004, Attention: Robert J.\nKatz, General Counsel, or at such other address as the Partnership shall have\nfurnished to Knight in writing.\n\n\n                                      -16-\n\n            8. Miscellaneous.\n\n            This Agreement will be binding upon and inure to the benefit of and\nbe enforceable by the respective successors and assigns of the parties hereto\n(including, with respect to the Partnership, the Company). No recourse under or\nupon any obligation of the Partnership contained in this Agreement shall be had\nagainst any current or future general partner of the Partnership. This Agreement\nshall terminate upon the disposition by Knight of all shares of its Common\nStock, other than Sections 4 and 5 hereof, which shall survive any such\ndisposition. The headings in this Agreement are for purposes of reference only\nand shall not limit or otherwise affect the meaning thereof. This Agreement may\nbe executed in any number of counterparts, each of which shall be an original,\nbut all of which together shall constitute one instrument.\n\n\n                                      -17-\n\n            IN WITNESS WHEREOF, the parties hereto have executed and delivered\nthis Agreement as of the date first above written.\n\n\n                                        ROYAL HAWAIIAN SHOPPING CENTER,\n                                        INC.\n\n\n                                        By:\n                                            ------------------------------------\n                                            Title:\n\n\n                                        By:\n                                            ------------------------------------\n                                            Title:\n\n\n                                        THE GOLDMAN SACHS GROUP, L.P.\n\n\n                                        By:\n                                            ------------------------------------\n\n\n                                      -18-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7660],"corporate_contracts_industries":[9418],"corporate_contracts_types":[9622,9627],"class_list":["post-43736","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-goldman-sachs-group-inc","corporate_contracts_industries-financial__securities","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43736","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43736"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43736"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43736"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43736"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}