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05-27-1993 CONSTRUCTION LOAN AGREEI~VT Page 7
<br />. Loan No 700007062 (Continued)
<br />.Improvements are not completed for purposes of final payment to the general contractor prior to the completion date represented by Borrowe .to
<br />Lender, regardless of the reason for the delay.
<br />Transfer of Property. Sale, transfer, hypothecation, assignment, or conveyance of the Property or the Improvements or any portion thereat or
<br />interest therein by Borrower or any Grantor without lender's prior written consent.
<br />Condsmnatlon. Ali or any material portion of the Property is condemned, seized, or appropriated without compensation, and Borrower does lot
<br />within thirty (30) days after such condemnation, seizure, or appropriation, initiate and diligently prosecute appropriate action to contest in g.; od
<br />faith the validity of such condemnation, seizure, or appropriation.
<br />EFFECT OF AN EVENT OF DEFAULT; REMEDIES. Upon the occurrence of any Event of Default and at any time thereafter, Lender may, at its opti ~n,
<br />but without any obligation to do so, and in addition to any other right Lender may have, do any one or more of the following without notice to Borrow ~~:
<br />(a) Cancel this Agreement; (b) Institute appropriate proceedings to enforce the performance of this Agreement; (c) Withhold further disbursemen of
<br />Loan Funds; (d) Expend funds necessary to remedy the default; (e) Take possession of the Property and continue construction of the Project; (f)
<br />Accelerate maturity of the Note and/or Indebtedness and demand payment of ail sums due under the Note and/or Indebtedness; (g) Bring an acl cm
<br />on the Note and/or Indebtedness; (h) Foreclose the Mortgage or Deed of Trust on the Property in any manner available under law; and (i) Exen: se
<br />any other right or remedy which it has under the Note or Related Documents, or which is otherwise available at law or in equity or by statute.
<br />COMPLETION OF IMPROVEMENTS BV LENDER. If Lender takes possession of the Property, it may take any and all actions necessary in fits
<br />judgment to complete construction of the Improvements, including but not limited to making changes in the Plans and Specifications, work, or materi ds
<br />and entering into, modifying or terminating any contractual arrangements, subject to Lender's right at any lime to discontinue any work without tiabil iy.
<br />if Lender elects to complete the Improvements, it will not assume any liability to Borrower or to any other person for completing the Improvements or for
<br />the manner or quality of construction of the Improvements, and Borrower expressly waives any such liability. Borrower irrevocably appoints Lendal~ as
<br />its attorney-in-fact, with fuN power of substitution, to complete the Impro~rements, at Lender's option, either in Borrower's name or in its own name. In
<br />any event, all sums expended by Lender in completing the construction of the Improvements will be considered to have been disbursed to Borro~~ per
<br />and will be secured by the coNateral for the Loan. Any such sums that cause the principal amount of the Loan to exceed the face amount of the N ite
<br />will be considered to be an additional Loan to Borrower, bearing interest at the Note rate and being secured by the collateral. For these purpos 3s,
<br />Borrower assigns to Lender all of its right, title and interest in and to the Project Documents; however Lender will not have any obligation under he
<br />Project Documents unless Lender expressly hereafter agrees to assume such obligations in writing. Lender will have the right to exercise any right of
<br />Borrower under the Project Documents upon the occurrence of an Event of DefauN. All rights, power;, and remedies of Lender under this Agreem~ mt
<br />are cumulative and alternative, and are in addition to all rights which Lender may have under applicable law.
<br />MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are si part of this Agreement:
<br />Agency. Nothing in this Agreement shall be construed to constitute the creation of a partnership or joint venture between Lender and Borrowea nor
<br />any contractor. Lender is not an agent or representative of Borrower. This Agreement does not create a contractual relationship with and shall ~ lot
<br />be construed to benefit or bind Lender in any way with or create any contractual duties by Lender to any contractor, subcontractor, materialm;.n,
<br />laborer, or any other person.
<br />Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to ! he
<br />matters set forth in this Agreement. No aNeration of or amendment to this Agreement shall be effective unless given in writing and signed by 1 he
<br />party or parties sought to be charged or bound by the alteration or amendment.
<br />Applic~le Law. This Agreement has been delivered to Lender and accepted by Lender in the State of California. If there is a lawn 'it,
<br />Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of ALAMEDA County, the State of California. TI pis
<br />Agreement shall be governed by and construed in accordance with the laws of the State of Calibrnia.
<br />Authority to File Notices. Borrower appoints and designates Lender as its attorney-in-fact to file for record any notice that Lender d~~ ns
<br />necessary to protect its interest under this Agreement. This power shall be deemed coupled with an interest and shall be irrevocable white ~: ny
<br />sum or performance remains due and owing under any of the Related Documents.
<br />Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define 1 ~ie
<br />provisions of this Agreement.
<br />Multiple Parties; Corporate Authority. All obligations of Borrower under this Agreement shall be joint and several, and all references to Borrower
<br />shah mean each and every Borrower. This means that each of the persons signing below is responsible for all obligations in this Agreement.
<br />Consent to Loan Partfclpatlon. Borrower agrees and consents to Lender's sale or transfer, whether now or later, of one or more participali :m
<br />interests in the Loans to one or more purchasers, whether related or unrelated to Lender. Lender may provide, without any limitation whatsoev :~,
<br />to any one or more purchasers, or potential purchasers, any information or knowledge Lender may have about Borrower or about any other mal gar
<br />relating to the Loan, and Borrower hereby waives any rights to privacy it may have with respect to such matters. Borrower additionally waives s !,y
<br />and all notices of sale of participation interests, as well as all notices of any repurchase of such participation interests. Borrower also agrees tl ,at
<br />the purchasers of any such participation interests will be considered as the absolute owners of such interests in the Loans and will have all I •ie
<br />rights granted under the participation agreement or agreements governing the sale of such participation interests. Borrower further waives all
<br />rights of offset or counterclaim that it may have now or later against lender or against any purchaser of such a participation interest a ~~d
<br />unconditionally agrees that either Lender or such purchaser may enforce Borrower's obligation under the Loans irrespective of the failure or
<br />insolvency of any holder of any interest in the Loans. Borrower further agrees that the purchaser of any such participation interests may enforce its
<br />interests irrespective of any personal claims or defenses that Borrower may have against Lender.
<br />Costs and Expenses. Borrower agrees to pay upon demand all of Lender's out-of-pocket expenses, including attorneys' fees, incurred yin
<br />connection with the preparation, execution, enforcement and collection of this Agreement or in connection with the Loans made pursuant to 1 its
<br />Agreement. Lender may pay someone else to help collect the Loans and to enforce this Agreement, and Borrower will pay that amount. T' its
<br />includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsi fit,
<br />including attorneys' fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and ri ~iy
<br />anticipated post-judgment collection services. Borrower also will pay any court. costs, in addition to all other sums provided by law.
<br />Entire Agreement. This Agreement and the Related Documents constitute all of the agreements between the parties relating to the Project si :d
<br />supersede all other prior or concurrent oral or written agreements or understandings relating to the Project.
<br />Notices. All notices required to be given under this Agreement shall be given in writing and shall be effective when actually delivered or wfi ~~n
<br />deposited in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the address shop an
<br />above. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that I ~~e
<br />purpose of the notice is to change the party's address. To the extent permitted by applicable law, if there is more than one Borrower, notice to Fi ~iy
<br />Borrower will constitute notice to all Borrowers. For notice purposes, Borrower agrees to keep Lender informed at all times of Borrower's curd nt
<br />address(es).
<br />Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person ~x
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