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~05-2i-1993 INSTRUCTION LOAN AGREEM~T PagE~ 2
<br />t_o~n No 700007062 (Continued)
<br />Project or the construction of the Improvements.
<br />Property. The word "Property" means the Real Property together with all Improvements, all equipment, fixtures, and other articles of persc gal
<br />property now or subsequently attached or affixed to the real property, together with all accessions, parts, and additions to, all replacements of, cf ~fd
<br />all substitutions for any of such property, and all proceeds (including insurance proceeds and refunds of premiums) from any sale or o11 per
<br />disposition of such property.
<br />.. Real
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<br />"Real P ~operty" mean the real ~roperty located in ALAMEDA County, State of California, and legally described as:
<br />T r Z1 A('L.IAn c.r~D mn rw.r. 1,RTTT " T.,.,-.... .... ........__
<br />__ The Real Property or its address is commonly known as 723 PALOMINO DRIVE, PLEASANTON, CA 94566. The property tax identification
<br />,~'~~. ~ number for the Real Property is 946-2548-001-01.
<br />• ~•- ~ Related Documents. The words "Related Documents" mean and include without limitation all promissory notes, credit agreements, k: sfn
<br />agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements and documents, whether now .x
<br />hereafter exisfing, executed in connection with the Indebtedness.
<br />Security Agreement. The words "Security Agreement" mean and include without limitation any agreements, promises, covenants, arrangemer Is,
<br />understandings or other agreements, whether created by law, contract, or otherwise, evidencing, governing, representing, or creating a Secw ity
<br />Interest.
<br />Security Interest. The words "Security Interest" mean and include without limitation any type of collateral security, whether in the form of a lif n,
<br />charge, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel trust, factor's lien, equipment trust, conditional sale, trust recei ;.t,
<br />lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whetl far
<br />created by law, contract, or otherwise.
<br />LOAN. The Loan shall be in the principal sum of U.S. 1797,314.00 and shall bear interest on so much of the principal sum as shall be advarx; ad
<br />pursuant to the terms of this Agreement and the Related Documents. The Loan shall bear interest on each Advance from the date of the AdvancEf in
<br />accordance with the terms of the Note. Borrower shall use the Loan Funds solely for the payment of (a) the costs of constructing the Improvemef its
<br />and equipping the Project in accordance with the Construction Contract; (b) other costs and expenses incurred or to be incurred in connection w i:h
<br />the construction of the Improvements as Lender in its sole discretion shall approve; and (c) if permitted by Lender, interest due under the Nc e,
<br />including all expenses and all loan and commitment fees described in this Agreement.
<br />FEES AND EXPENSES. As a condition of Lender's making the Loan, Borrower agrees to pay the following fees, charges, and expenses, in addition I:o
<br />all others set forth in this Agreement: LOAN FEE 55,980.00. Whether or not the Project shall be consummated, Borrower shall assume and pay up ,n
<br />demand all out-of~ocket expenses incurred by Lender in connection with the preparation of loan documents and the making of the Loan, includi ig
<br />without limitation the following: (a) all closing costs, fees, and disbursements; (b) all expenses of Lender's legal counsel; and (c) all title examinati rn
<br />fees, title insurance premiums, appraisal fees, survey costs, required fees, and filing and recording fees.
<br />NO CONSTRUCTION PRIOR TO RECORDING OF SECURITY DOCUMENT. Borrower will not permit any work or materials to be furnished in
<br />connection with the Project until (a) Borrower has signed the Related Documents; (b) lender's mortgage or deed of trust and other Security Intere: is
<br />in the Property have been duly recorded and perfected; and (c) Lender has been provided evidence, satisfactory to Lender, that Borrower f~ :fs
<br />obtained all insurance required under this Agreement or any Related Agreement and that Lender's liens on the Property and Improvements are vsf id
<br />perfected first liens, subject only to such exceptions, if any, acceptable to Lender.
<br />REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender as of the date of this Agreement and as of the date of eFf ;h
<br />disbursement of Loan proceeds:
<br />Organ(zatlon. Borrower is a corporation which is duly organized, validly existing, and in good standing under the laws of the State of Californaa.
<br />Borrower has the full power and authority to own its properties and to transact the businesses in which it is presently engaged or presef• lly
<br />proposes to engage. Borrower also is duly qualified as a foreign corporation and is in good standing in all states in which the failure to so qua. ,IY
<br />would have a material adverse effect on its businesses or financial condition.
<br />Authorization. The execution, delivery, and performance of this Agreement by Borrower, to the extent to be executed, delivered or performed :~y
<br />Borrower, have been duly authorized by all necessary action by Borrower; do not require the consent or approval of any other person, regulatf ry
<br />authority or governmental body; and do not conflict with, result in a violation of, or constitute a default under (a) any provision of its articles of
<br />incorporation or organization, or bylaws, or any agreement or other instrument binding upon Borrower or (b) any law, governmental nagulatir, n,
<br />court decree, or order applicable to Borrower.
<br />Financial Information. Each financial statement of Borrower supplied to Lender truly and completely disclosed Borrower's financial condition :fs
<br />of the date of the statement, and there has been no material adverse change in Borrower's financial condition subsequent to the date of the mf :st
<br />recent financial statement supplied to Lender. Borrower has no material contingent obligations except as disclosed in such financial statements.
<br />Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) agaif :;t
<br />Borrower is pending or threatened, and no other event has occurred which may materially adversely affect Borrower's financial condition or
<br />properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Lender in writing.
<br />Title to Property. Borrower has, or on the date of first disbursement of Loan proceeds will have, good and marketable title to the Property fi• ~e
<br />and clear of all defects, liens, and encumbrances, excepting only liens for taxes, assessments, or governmental charges or levies not !fat
<br />delinquent or payable without penalty or interest, and such liens and encumbrances as may be approved in writing by the Lender.
<br />Hazardous Substances. The terms "hazardous waste " "hazardous substance," "disposal," "release," and "threatened release," as used in 11 pis
<br />Agreement, shall have the same meanings as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 191 I),
<br />as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-11 #9
<br />("SARA'S the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S. ~.
<br />Section 6901, et seq., Chapters 6.5 through 7.7 of Division 20 of the California Health and Safety Code, Section 25100, et seq., or other applicat le
<br />state or Federal laws, rules, or regulations adopted pursuant to any of the foregoing. Except as disclosed to and acknowledged by Lender in
<br />writing, Borrower represents and warrants that: (a) During the period of Borrower's ownership of Borrower's properties, there has been no u; e,
<br />generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person ~; n,
<br />under, or about any of the properties. (b) Borrower has no knowledge of, or reason to believe that there has been (i) any use, generati~: n,
<br />manufacture, storage, treatment, disposal, release, or threatened release of any hazardous waste or substance by any prior owners or occupaf Is
<br />of any of the properties, or (ii) any actual or threatened litigation or claims of any kind by any person relating to such matters. (c) Neitl• far
<br />Borrower nor any tenant, contractor, agent or other authorized user of any of the properties shall use, generate, manufacture, store, treat, dispc; s.e
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