Exhibit
10.3


 


CONSTRUCTION
LOAN AGREEMENT


 


THIS
CONSTRUCTION LOAN AGREEMENT is entered into as of the 31st day of January, 2018, by FREMONT HILLS DEVELOPMENT CORPORATION, a California
corporation (“Borrower”), PARKVIEW FINANCIAL FUND 2015, LP, a Delaware limited partnership, having its principal office
at c/o Parkview Financial Fund GP, Inc., 12400 Wilshire Boulevard, Suite 350, Los Angeles, CA 90025, and TREZ CAPITAL (2016) CORPORATION,
a British Columbia corporation acting as a nominee on behalf of certain entities managed by it, having its principal office at
1700-745 Thurlow Street, Vancouver, B.C., Canada V6E 0C5, together with their assignees under Article XIV (individually and/or
collectively “Lenders”), and PARKVIEW FINANCIAL FUND 2015, LP, a Delaware limited partnership (“Administrative
Agent”) as contractual representative of the Lenders to the extent and in the manner provided in Article XII (in such capacity,
the “Administrative Agent”).


 


RECITALS


 


A.          Borrower
has good and indefeasible fee simple title to that certain real property commonly known as 2501 Cormack Road, Fremont, California
94539 and more particularly described in Exhibit
A attached hereto (“Property”).


 


B.          Borrower
proposes to construct on the Property improvements consisting of, without limitation a one hundred fifty-eight unit project, together
with all appurtenances now or hereafter located on the Property (“Improvements”).


 


C.          Borrower
desires to borrow from Lenders up to the maximum principal amount of SIXTY-FIVE MILLION AND 00/100 DOLLARS ($65,000,000.00) for
purposes of constructing the Improvements.


 


D.          Lenders
are willing to extend credit to Borrower in amount requested, pursuant to the terms and provisions set forth herein.


 


AGREEMENT


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender
hereby agrees as follows:


 


ARTICLE
I


DEFINITIONS


 


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


 


“Account
Bank” means East West Bank.


 


“Administrative
Agent” means PARKVIEW FINANCIAL FUND 2015, LP, a Delaware limited partnership, or any successor administrative agent appointed
pursuant to Section 12.14.


 






    	 	1	 



     


    

 


“Affiliate”
means any person or entity which controls, is controlled by or is under common control with any other person or entity. For purposes
of this definition, “control” (which includes the correlative meanings of “controlled by” and “under
common control with”) means the effective power, directly or indirectly, to direct or cause the direction of the management
and policies of a person or entity. Without limiting the generality of the foregoing, Jae Won Ryu, Ronald Scott Hanks, Xu Zhong,
Jianping Pan, Helios Real Estate Group are “Affiliates” of Borrower for purposes of this Agreement.


 


“Architect”
means Hoover Associates / ArchiRender, a Collaboration.


 


“Architect’s
Contract” means that certain AIA Document B101-2007 Standard Form of Agreement Between Owner and Architect dated December
22, 2014, between Borrower and the Architect with respect to the design of the Improvements.


 


“Architect
Assignment” means the Assignment executed by Borrower in favor of Administrative Agent assigning Borrower’s interest
in the Architect’s Contract, Plans and Specifications, Permits and other contracts, franchises and interests of Borrower
relating to the Project.


 


“Assignee”
shall have the meaning given to such term in Article XIV.


 


“Assignment
and Assumption Agreement” means an assignment and assumption agreement among a Lender and an Assignee and the Administrative
Agent substantially in the form of Exhibit
E.


 


“Authorized
Representative” means a person designated by the applicable entity and approved by Administrative Agent Lender for the purpose
of certifying and taking all other actions necessary or which Lenders may deem desirable under this Agreement.


 


“Borrower’s
Account” means an account with Account Bank, Account No. 80-72002688, in the name of Borrower.


 


“Business
Day” means any day, except a Saturday, Sunday or any other day in which commercial banks in Los Angeles, California and Vancouver,
British Columbia are authorized or required by law to close. Unless specifically referenced in this Agreement as a Business Day,
all references to “days” shall be deemed calendar days.


 


“Budget”
means the project budget set forth as Exhibit
B to this Agreement.


 


“Bylaws”
means those certain Bylaws of Borrower dated September 10, 2014, as amended prior to the date hereof.


 


“Closing”
means the date the Deed of Trust is recorded with the County Recorder in which the Property is located.


 


“Collateral”
means the Property and/or Improvements.


 






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“Commitment”
means, as to each Lender, such Lender’s obligation to make disbursements pursuant to Article II in an amount up to but not
exceeding the amount set forth for such Lender on Exhibit D attached hereto as such Lender’s “Commitment Amount”
or set forth in the applicable Assignment and Assumption Agreement, as the same may be reduced from time to time pursuant to the
terms of this Agreement or as appropriate to affect any assignments to or by such Lender effective in accordance with Article XIV.


 


“Completion
Date” means June 15, 2019, the date by which construction of the Improvements must be complete.


 


“Construction
Agreement” means that certain AIA Document A121-2014 Standard Form of Master Agreement Between Owner and Contractor to construct
the Improvements dated August 15, 2016, by and between Borrower and General Contractor and that certain Work Order by and between
Borrower and General Contractor dated August 15, 2016.


 


“Contractor
Assignment” means the Assignment executed by Borrower in favor of Administrative Agent assigning Borrower’s interest
in the Construction Agreement to Administrative Agent.


 


“Construction
Schedule” means the construction schedule to be submitted to Administrative Agent pursuant to Section 3.1(C)(q).


 


“Contracts”
means all contracts and subcontracts entered into for the provision of goods and services in connection with the design, construction,
maintenance, management and operation of the Improvements, including the Architect’s Contract and the Construction Agreement.


 


“Contractors”
means all contractors, subcontractors, architects, engineers, designers, consultants, suppliers, materialmen and like providers
of goods and services in connection with the Project, including the Architect and the General Contractor.


 


“Deed
of Trust” means the Construction Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing executed by Borrower,
as trustor, for the benefit of Administrative Agent, as beneficiary, encumbering the Property.


 


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


 


“Eligible
Assignee” means any Person that is: (a) an existing Lender; (b) a commercial bank, trust company, savings and loan association,
savings bank, insurance company, investment bank or pension fund organized under the laws of the United States of America, any
state thereof or the District of Columbia, and having total assets in excess of $5,000,000,000; or (c) a commercial bank organized
under the laws of any other country which is a member of the Organization for Economic Co-operation and Development, or a political
subdivision of any such country and having total assets in excess of $10,000,000,000, provided that such bank is acting through
a branch or agency located in the United States of America. If such entity is not currently a Lender, such entity’s (or
in the case of a bank which is a subsidiary, such bank’s parent’s) senior unsecured long term indebtedness must be
rated BBB or higher by S&P, Baa2 or higher by Moody’s Investor Service or the equivalent or higher either such rating
by another rating agency acceptable to the Administrative Agent.


 






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“Escrow”
means Old Republic Title, which shall act as the escrow holder for recordation of the Deed of Trust and performance of the Administrative
Agent’s instructions, pursuant to Administrative Agent’s written instructions dated as of even date herewith.


 


“Environmental
Indemnity” means the Environmental Indemnity executed by Borrower.


 


“Event
of Default” has the meaning set forth in Article IX of this Agreement.


 


“Extended
Maturity Date 1” - means Six (6) months after the Maturity Date.


 


“Extended
Maturity Date 2” – means Six (6) months after the Extended Maturity Date 1.


 


“Extended
Maturity Date 3” – means Six (6) months after the Extended Maturity Date 2.


 


“Extended
Maturity Date 4” – means Six (6) months after the Extended Maturity Date 3.


 


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


 


“General
Contractor” means Queens Land Builder, Inc.


 


“Guarantors”
means JiangPing Pan, an individual, Jae Ryu, an individual, and Xu Zhong, an individual.


 


“Guaranty”
means the Payment Guaranty.


 


“Hard
Costs” means all costs incurred for labor performed in the construction of the Improvements and the materials incorporated
into the Improvements.


 






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“Hazardous
Materials” means (i) any chemical, compound, material, mixture or substance that is now or may later be defined or listed
in, or otherwise classified pursuant to, any Hazardous Materials Law as a “hazardous substance”, “hazardous material”,
“hazardous waste”, “extremely hazardous waste”, “acutely hazardous waste”, “radioactive
waste”, “infectious waste”, “biohazardous waste”, “toxic substance”, “pollutant”,
“toxic pollutant”, “contaminant” as well as any formulation not mentioned herein intended to define, list,
or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity “EP toxicity,” or “TCLP toxicity”; (ii) petroleum, natural gas, natural gas liquids,
liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas) and ash produced by a
resource recovery facility utilizing a municipal solid waste stream, and drilling fluids, produced waters and other wastes associated
with the exploration, development or production of crude oil, natural gas, or geothermal resources; (iii) “hazardous substance”
as defined in Section 25281(f) of the California Health and Safety Code; (iv) “waste” as defined in Section 13050(d)
of the California Water Code (v) asbestos in any form; (vi) urea formaldehyde foam insulation; (vii) transformers or other equipment
which contain dielectric fluid containing levels of polychlorinated biphenyls (PCBs) in excess of fifty (50) parts per million;
(viii) radon; and (ix) any other chemical, material, or substance that, because of its quantity, concentration, or physical or
chemical characteristics, exposure to which is limited or regulated for health and safety reasons by any governmental authority,
or which poses a significant present or potential hazard to human health and safety or to the environment if released into the
workplace or the environment.


 


“Hazardous
Materials Laws” means all present and future federal, state and local laws, ordinances, regulations, permits, guidance documents,
policies, decrees, orders and any other requirements, whether statutory, regulatory or contractual, of governmental authorities
relating to health, safety, the environment or the use, handling, disposal or transportation of any Hazardous Materials (including,
without limitation, the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901
et seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (including the Superfund
Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control
Act, as amended, 15 U.S.C. Section 2601 et seq.; the Hazardous Materials Transportation Act, as amended 49 U.S.C. Section 1801
et seq.; the Atomic Energy Act, as amended, 42 U.S.C. Section 2011 et seq.; the Federal Insecticide, Fungicide and Rodenticide
Act, as amended, 7 U.S.C. Section 136 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended,
30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; each as now and hereafter
amended, and the regulations thereunder, and any other applicable local, state and/or federal laws or regulations that govern (i)
the existence, cleanup and/or remedy of contamination on the Property; (ii) the protection of the environment from released, spilled,
deposited or otherwise emplaced contamination; (iii) the control of hazardous wastes; or (iv) the use, generation, transport, treatment,
removal or recovery of Hazardous Materials, including any and all building materials.


 


“Improvements”
shall include the real-property, personal property and the tangible and intangible properties which Borrower intends to construct
on the Property with the proceeds of the Loan in accordance with the Plans and Specifications and all off-site improvements which
are required to be completed in connection with such construction on the Property.


 


“In-Balance”
means, with respect to the Loan, Administrative Agent’s determination from time to time that any undisbursed loan funds
together with all sums, if any, provided by Borrower as shown in the Budget shall at all times be equal to a greater than the
amount which Administrative Agent from time to time reasonably determines necessary to: (i) pay through completion all costs of
the development and construction of the Improvements in accordance with the Budget; (ii) pay all sums which may accrue under the
Loan Documents prior to the repayment of the Loan; and (iii) enable Borrower to perform and satisfy all the covenants that Borrower
contained in the Loan Documents.


 






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


 


“Loan”
means the loan in the maximum principal amount of Sixty Five Million Dollars ($65,000,000).


 


“Loan
Documents” means this Agreement, the Note, the Deed of Trust, the Architect Assignment, Contractor Assignment and all other
agreements, instruments or documents, other than the Environmental Indemnity, executed by Borrower evidencing, securing or otherwise
delivered in connection with the Loan.


 


“Maturity
Date” means January 31, 2019.


 


“Non-Prorata
Advance” shall mean a Protected Advance or a disbursement under the Loan with respect to which fewer than all Lenders have
funded their respective prorata shares in breach of their obligations under this Agreement.


 


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


 


“Participant”
shall have the meaning as described as such term in Article X hereof.


 


“Payment
Guaranty” means the Guaranty executed by the Guarantors guaranteeing the repayment of the Loan.


 


“Permits”
means all permits, licenses, operating authorizations, certificates, variances, waivers, approvals or other authorizations of any
kind issued or granted by any governmental authority which are required in connection with (i) the lawful and proper operation
and maintenance of the Property; (ii) construction of the Improvements; and (ii) any existing use of the Property.


 


“Permitted
Encumbrances” has the meaning set forth in Section 6.10.


 


“Plans
and Specifications” means the plans and specifications for the Improvements, as approved by Administrative Agent and as may
be revised from time to time in accordance with the terms of this Agreement. The Plans and Specifications as of the date of this
Agreement are described on Exhibit C to this Agreement.


 






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“Potential
Event of Default” means an event which, with the giving of notice or the lapse of time, or both, would become an Event of
Default.


 


“Project”
means, as the context requires, (a) the Property and the Improvements or (b) the project of constructing the Improvements on the
Property in accordance with the Plans and Specifications and this Agreement.


 


“Project
Costs” means Hard Costs, Soft Costs and all other costs necessary to complete the Improvements in accordance with the Plans
and Specifications and otherwise in accordance with this Agreement.


 


“Property”
means the real property described in Exhibit “A” to this Agreement.


 


“Property
Laws” means (i) all zoning, building, environmental and other laws, ordinances, rules, regulations, and restrictions of any
governmental authority, including, without limitation, the Americans with Disabilities Act to the extent applicable, the Subdivision
Map Act and those relating to the presence of asbestos and/or hazardous wastes, (ii) any building permits or any conditions, easements,
rights-of-way, covenants, restrictions of record or any recorded or unrecorded agreement affecting or concerning the Property,
including, without limitation, planned development permits, condominium declarations and any owner participation, development or
regulatory agreements with any governmental authority and (iii) requirements of insurance companies or similar organizations, affecting
the operation and use of the Property or consummation of the transactions contemplated by the Loan Documents.


 


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


 


“Protective
Advance” means any advance made by Administrative Agent in accordance with the provisions of Article X to protect the Collateral
securing the Loan.


 


“Requisite
Lenders” means, as of any date, Lenders (which must include the Lender then acting as Administrative Agent) having at least
67% of the aggregate amount of the Commitments, or, if the Commitments have been terminated or reduced to zero, Lenders holding
at least 67% of the principal amount outstanding under the Loan, provided that (a) in determining such percentage at any given
time, all then existing Defaulting Lenders will be disregarded and excluded and the prorata shares of the Lenders shall be redetermined,
for voting purposes only, to exclude the prorata shares of the Loan of such Defaulting Lenders, and (b) at all times when two or
more Lenders are party to this Agreement, the term “Requisite Lenders” shall in no event mean less than two Lenders.


 


“Separateness
Provisions” shall have the meaning as described as such term in Section 7.3 hereof.


 


“Soft
Costs” means all Project Costs which are not Hard Costs or the cost of acquiring the Property, and include, without limitation,
permit and license fees, development fees, architectural and engineering consultants and services, survey costs, title insurance
premiums, legal fees, origination fees, interest on the Loan and the like.


 






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“Title
Insurer” has the meaning set forth in Section 3.1(C).


 


“Title
Policy” has the meaning set forth in Section 3.1(C).


 


“Transfer”
means any sale, installment sale, exchange, mortgage, pledge, hypothecation, assignment, or other transfer, conveyance or disposition,
whether voluntarily, involuntarily or by operation or otherwise.


 


“UCC”
means the California Uniform Commercial Code in effect from time to time.


 


ARTICLE
II


THE LOAN


 


2.1         Loan.
Subject to the terms and conditions of this Agreement, Lenders agree to make and disburse the Loan to Borrower. The Loan shall
be evidenced and repaid in accordance with the terms of the Note.


 


2.2         Purpose.
Amounts disbursed to or on behalf of Borrower pursuant to the Note shall be used for the construction of the Improvements and for
such other purposes and uses as may be permitted under this Agreement and the other Loan Documents (including refinancing the debt
encumbering the Property).


 


2.3         Deed
of Trust. The Note shall be secured, in part, by the Deed of Trust encumbering certain real property and improvements
as described therein.


 


2.4         Origination
Fee. Borrower agrees to pay to Lenders at Closing a non-refundable loan origination fee in the amount of $1,300,000.00
(“Origination Fee”).


 


2.5         Maturity
Date. All sums due and owing under this Agreement and the other Loan Documents shall be repaid in full on the Maturity
Date.


 


2.6         Full
Repayment And Reconveyance. Satisfaction Or Release. Upon receipt of all sums owing and outstanding under the Loan Documents,
and the full performance of all other obligations secured by the Deed of Trust, Administrative Agent shall reconvey, satisfy or
release the Property and Improvements from the lien of the Deed of Trust and terminate any assignment of leases and rents or UCC-fmancing
statements related to the Collateral; provided, however, that all of the following conditions shall be satisfied at the time of,
and with respect to, such reconveyance, satisfaction or release: (a) Administrative Agent shall have received all escrow, closing
and recording costs, the costs of preparing and delivering such reconveyance, satisfaction or release, the payment of any and all
sums then due and payable under the Loan Documents, and the full payment and performance of all other obligations secured by the
Deed of Trust, including, without limitation, those set forth in the Note and the Deed of Trust; and (b) Administrative Agent shall
have received a written release satisfactory to Administrative Agent of any set aside letter, letter of credit or other form of
undertaking which Lenders have issued to any surety, governmental agency or any other party in connection with the Loan and/or
the Property. Lenders’ obligation to make further disbursements under the Loan shall terminate as to any portion of the Loan
undisbursed as of the date of issuance of such reconveyance, satisfaction or release, and any commitment of Lenders to lend any
undisbursed portion of the Loan shall be cancelled.


 




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2.7         Option
to Extend.


 


(i)          Extended
Maturity Date 1.


 


Borrower
shall have the option to extend the term of the Loan from the Maturity Date (for purposes of this Section, “Original Maturity
Date”), to the Extended Maturity Date 1, upon satisfaction of each of the following conditions precedent:


 


(a)          Borrower
shall provide Administrative Agent with written notice by way of certified mail of Borrower’s request to exercise the option
to extend (“First Option to Extend”) not more than ninety (90) days but not less than thirty (30) days prior to the
Original Maturity Date;


 


(b)          As
of the date of Borrower’s delivery of notice of request to exercise the First Option to Extend, and as of the Original Maturity
Date, no Event of Default shall have occurred and be continuing, and no Potential event of Default shall exist, and Borrower shall
so certify in writing;


 


(c)          Borrower
shall execute or cause the execution of all documents reasonably required by Administrative Agent to exercise the First Option
to Extend and shall deliver to Administrative Agent, at Borrower’s sole cost and expense, such title insurance endorsements
reasonably required by Lender;


 


(d)          There
shall have occurred no material adverse change, as determined by Lender in its sole discretion, in the financial condition of Borrower
or any Guarantor or other person or entity in any manner obligated to Lenders under the Loan Documents from that which existed
on the Effective Date;


 


(e)          At
least 45 days before the Original Maturity Date, Borrower shall pay to Administrative Agent a documentation fee in the amount of
$29,875.00; and


 


(f)          At
least 30 days before the Original Maturity Date, Borrower shall pay to Lenders an extension fee in the amount of $650,000.00.


 


(ii)          Extended
Maturity Date 2.


 


Borrower
shall have the option to extend the term of the Loan from the Extended Maturity Date 1 to the Extended Maturity Date 2, upon satisfaction
of each of the following conditions precedent:


 


(a)          Borrower
shall have timely and properly exercised the First Option to Extend, pursuant to paragraph 2.7(i) above;


 






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(b)          Borrower
shall provide Administrative Agent with written notice by way of certified mail of Borrower’s request to exercise the second
option to extend (“Second Option to Extend”) not more than ninety (90) days but not less than thirty (30) days prior
to the Extended Maturity Date 1;


 


(c)          As
of the date of Borrower’s delivery of notice of request to exercise the Second Option to Extend, and as of the Extended Maturity
Date 1, no Event of Default shall have occurred and be continuing, and no Potential event of Default shall exist, and Borrower
shall so certify in writing;


 


(d)          Borrower
shall execute or cause the execution of all documents reasonably required by Administrative Agent to exercise the Second Option
to Extend and shall deliver to Administrative Agent, at Borrower’s sole cost and expense, such title insurance endorsements
reasonably required by Administrative Agent;


 


(e)          There
shall have occurred no material adverse change, as determined by Administrative Agent in its sole discretion, in the financial
condition of Borrower or any Guarantor or other person or entity in any manner obligated to Lenders under the Loan Documents from
that which existed on the Effective Date;


 


(f)           At
least 45 days before the Extended Maturity Date 1, Borrower shall pay to Administrative Agent a documentation fee in the amount
of $29,875.00; and


 


(g)          At
least 30 days before the Extended Maturity Date 1, Borrower shall pay to Lenders an extension fee in the amount of $650,000.00.


 


(iii)         Extended
Maturity Date 3.


 


Borrower
shall have the option to extend the term of the Loan from the Extended Maturity Date 2 to the Extended Maturity Date 3, upon satisfaction
of each of the following conditions precedent:


 


(a)          Borrower
shall have timely and properly exercised the First Option to Extend, pursuant to paragraph 2.7(i) above, and the Second Option
to Extend, pursuant to paragraph 2.7(ii) above;


 


(b)          Borrower
shall provide Administrative Agent with written notice by way of certified mail of Borrower’s request to exercise the third
option to extend (“Third Option to Extend”) not more than ninety (90) days but not less than thirty (30) days prior
to the Extended Maturity Date 1;


 


(c)          As
of the date of Borrower’s delivery of notice of request to exercise the Third Option to Extend, and as of the Extended Maturity
Date 2, no Event of Default shall have occurred and be continuing, and no Potential event of Default shall exist, and Borrower
shall so certify in writing;


 


(d)          Borrower
shall execute or cause the execution of all documents reasonably required by Administrative Agent to exercise the Third
Option to Extend and shall deliver to Administrative Agent, at Borrower’s sole cost and expense, such title insurance
endorsements reasonably required by Administrative Agent;


 






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(e)          There
shall have occurred no material adverse change, as determined by Administrative Agent in its sole discretion, in the financial
condition of Borrower or any Guarantor or other person or entity in any manner obligated to Lenders under the Loan Documents from
that which existed on the Effective Date;


 


(f)           At
least 45 days before the Extended Maturity Date 2, Borrower shall pay to Administrative Agent a documentation fee in the amount
of $29,875.00; and


 


(g)          At
least 30 days before the Extended Maturity Date 2, Borrower shall pay to Lenders an extension fee in the amount of $650,000.00.


 


(iv)         Extended
Maturity Date 4.


 


Borrower
shall have the option to extend the term of the Loan from the Extended Maturity Date 3 to the Extended Maturity Date 4, upon satisfaction
of each of the following conditions precedent:


 


(a)          Borrower
shall have timely and properly exercised the First Option to Extend, pursuant to paragraph 2.7(i) above, the Second Option to Extend,
pursuant to paragraph 2.7(ii) above, and the Third Option to Extend, pursuant to paragraph 2.7(iii) above;


 


(b)          Borrower
shall provide Administrative Agent with written notice by way of certified mail of Borrower’s request to exercise the fourth
option to extend (“Fourth Option to Extend”) not more than ninety (90) days but not less than thirty (30) days prior
to the Extended Maturity Date 3;


 


(c)          As
of the date of Borrower’s delivery of notice of request to exercise the Fourth Option to Extend, and as of the Extended Maturity
Date 3, no Event of Default shall have occurred and be continuing, and no Potential event of Default shall exist, and Borrower
shall so certify in writing;


 


(d)          Borrower
shall execute or cause the execution of all documents reasonably required by Administrative Agent to exercise the Fourth Option
to Extend and shall deliver to Administrative Agent, at Borrower’s sole cost and expense, such title insurance endorsements
reasonably required by Administrative Agent;


 


(e)          There
shall have occurred no material adverse change, as determined by Administrative Agent in its sole discretion, in the financial
condition of Borrower or any Guarantor or other person or entity in any manner obligated to Lenders under the Loan Documents from
that which existed on the Effective Date;


 


(f)          At
least 45 days before the Extended Maturity Date 3, Borrower shall pay to Administrative Agent a documentation fee in the amount
of $29,875.00; and


 






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(g)          At
least 30 days before the Extended Maturity Date 3, Borrower shall pay to Lenders an extension fee in the amount of $650,000.00.


 


Except
as modified by this Option to Extend, the terms and conditions of this Agreement and the other Loan Documents as modified and approved
by Lenders shall remain unmodified and in full force and effect.


 


ARTICLE
III


CONDITIONS PRECEDENT


 


3.1         Initial
Disbursement. Lenders’ obligation to make the initial disbursement of the Loan is subject to Lenders’ approval
of the estimated closing statement prepared by the escrow company designated to handle the funding, and the satisfaction of the
following conditions precedent not later than February 15, 2018.


 


A.          Loan
Documents. Administrative Agent shall have received, in form and substance satisfactory to Administrative Agents, each
of this Agreement, the Note, the Deed of Trust, the Contractor Assignment, Architect Assignment, the Environmental Indemnity and
the Guaranty, each originally executed.


 


B.          Borrower
and Guarantors. Lenders shall have received the following concerning Borrower and its members, in form and substance
satisfactory to Lenders:


 


(i)           With
respect to Borrower, (i) a copy of Borrower’s Bylaws certified to be true and complete by Borrower’s Authorized Representative
(which shall contain the Separateness Provisions); (ii) a copy of Borrower’s Articles of Incorporation and any amendments,
certified by the California Secretary of State; (iii) a recent good-standing certificate regarding Borrower issued by the California
Secretary of State and an Entity Status Letter from the California Franchise Tax Board; (iv) a certificate of Borrower’s
Authorized Representative, including a copy of resolutions, indicating that Borrower is duly authorized to execute and deliver
the Loan Documents, complete the construction of the Improvements and perform its obligations under such Loan Documents; (v) a
certificate with respect to the incumbency and a signature certificate set in forth the signatures of Borrower’s Authorized
Representative; and (vi) such other documents as Lender shall reasonably request with respect to Borrower’s existence and
authorization.


 


(ii)          With
respect to each Guarantor, (i) a copy of such Guarantor’s driver's license and passport; (ii) a copy of such
Guarantor’s current year financial statements; (iii) a copy of such Guarantor’s three years tax returns; and (iv)
such other documents as Lender shall reasonably request with respect to Guarantor’s existence and authorization.


 


C.          The
Property and Construction of the Improvements. If checked in the following paragraphs, and if applicable, Administrative
Agent shall have received the following items or the following conditions shall have been satisfied concerning the Property and
the construction of the Improvements, in form and substance satisfactory to Administrative Agent.


 






    	 	12	 



     


    

 


(a)          x          A
2006 ALTA Policy of Title Insurance with Extended Coverage with such endorsements as Administrative Agent may require (the
“Title Policy”), issued by a title insurer approved by Lenders (the “Title Insurer”), showing the
Deed of Trust to be a first-priority lien upon the Property in an amount at least equal to the Loan, free and clear of all
liens, encumbrances, conditions, restrictions and other exceptions to title except for those approved by Administrative
Agent;


 


(b)          x          an
appraisal by Administrative Agent’s appraiser or an appraiser engaged by Administrative Agent showing the current value of
the Property and the value of the Property with the completed Improvements in an amount satisfactory to Lenders;


 


(c)            ̈          a
survey by a licensed surveyor satisfactory to and certified to Administrative Agent;


 


(d)          x          copies
of all of the Contracts, including the Architect’s Contract and the Construction Agreement, together with a Certificate of
Architect in the form attached to the Contractor Assignment, signed by the Architect; a Certificate of General Contractor in the
form attached to the Contractor Assignment, signed by the General Contractor; and such other certificates and consents signed by
such other Contractors as Administrative Agent shall request;


 


(e)            ̈          a
proposed trade/payment breakdown and list of all Contractors who will perform work or supply material for the Project, each of
whom must be satisfactory to Lenders, together with such financial statements of such Contractors as Lenders may require;


 


(f)           x          the
Budget;


 


(g)          x          the
Plans and Specifications;


 


(h)          x          a
certificate executed by Borrower’s Authorized Representative setting forth (i) all Permits necessary for the construction
of the Improvements, operation and maintenance of the Project and otherwise to perform Borrower’s obligations under the Loan
Documents and (ii) the dates on which the Permits which have been obtained were obtained and the date Borrower expects to obtain
each Permit which has not been obtained, together with copies of all Permits already obtained;


 


(i)             ̈          any
initial study, negative declaration, mitigated negative declaration, environmental impact report, notice of determination or notice
of exemption prepared, adopted, certified or filed by or with any governmental agency in connection with the Property, the Improvements
or the Project;


 


(j)             ̈          soils
and geological reports and test results by a soils engineer satisfactory to Lenders, including evidence that the Plans and Specifications
conform to the recommendations of such engineer;


 


(k)            ̈          an
environmental audit report prepared by a consultant acceptable to Administrative Agent showing the absence of Hazardous
Materials on or about the Property;


 


(l)             ̈          a
report prepared by an engineer satisfactory to Administrative Agent on the design and specifications of the Improvements reviewing
the degree of probable damage from earthquake;


 




    	 	13	 



     


    

 


(m)          x          evidence
that the Project, the construction of the Improvements and the Property with the completed Improvements complies or will comply
with all Property Laws;


 


(n)            ̈          letters
from utility companies and municipalities or other evidence satisfactory to Administrative Agent assuring the availability of all
utilities necessary to construct the Improvements and operate the Property;


 


(o)            ̈          a
list, and if required by Administrative Agent, copies of all bonds or other security deposits required to be filed with any governmental
agency in connection with the Project;


 


(p)           x          evidence
that the insurance required by Section 2.11 of the Deed of Trust is in effect; and


 


(q)           x          a
construction schedule showing the estimated commencement and completion of construction for each stage of the Improvements (the
“Construction Schedule”).


 


D.          Representations
and Warranties. All representations and warranties contained in this Agreement are true and correct.


 


E.          Other
Conditions Precedent. If checked in the following sections, and if applicable, Administrative Agent shall have received
the following, in form and substance satisfactory to Administrative Agent:


 


(i)           ̈          the
results of a search of the California Secretary of State’s UCC records concerning Borrower, and the Guarantors;


 


(ii)          ̈          the
results of a search of the UCC Records with respect to Borrower from the Secretary of State of Borrower’s State of Formation
and with respect to each Guarantor from the Secretary of State for its State of Formation or, in the case of an individual, his
principal residence;


 


(iii)        x         such
financial statements concerning Borrower, and the Guarantors as Administrative Agent shall require;


 


(iv)         ̈          an
opinion of counsel to Borrower, and the Guarantors satisfactory to Administrative Agent concerning the existence and power of Borrower,
and the Guarantors, the due authorization, execution, delivery and enforceability of the Loan Documents and such other matters
as Administrative Agent shall require;


 


(v)         x         evidence
that Borrower has paid not less than $36,473,281 of Project Costs from its own funds;


 




    	 	14	 



     


    

 


(vi)        x          payment
of the Origination Fee to Lenders and the payment of all of Lenders’ fees, including, without limitation the following:


 


		(1)	$8,675.00 appraisal fee;



 


		(2)	$18,925.00 appraisal review fee;



 


		(3)	$995.00 packaging fee;



 


		(4)	$1,255.00 administrative fee;



 


		(5)	$4,975.00 processing fee;



 


		(6)	$26,845.00 drawing review;



 


(7)          $28,675.00
legal and underwriting fees; less a deposit of $75,000.00 previously made to Administrative Agent by Borrower.


 


		(8)	$725,000.00 broker fee to UCC United Capital Companies,
Inc.;



 


(vii)       x          payment
of escrow and title insurance costs; and


 


(viii)      x          such
other documents, agreements, certificates and assurances as Lender shall require.


 


		3.2	Subsequent
Disbursements.



 


Lenders’
obligation to make any disbursements (other than the initial disbursement) of the Loan shall be subject to the satisfaction of
the following conditions precedent:


 


(a)          There
shall exist no Event of Default or Potential Event of Default under this Agreement or any of the Loan Documents, or an event, omission
or failure of any condition which would constitute an Event of Default after notice or passage of time or both.


 


(b)          The
Loan is In-Balance, as defined in Section 5.7 below.


 


(c)          No
liens other than Permitted Encumbrances shall have been filed against the Property and Administrative Agent shall not have received
or been served with a verified claim or notice to withhold, whether or not accompanied by the bond described in California Civil
Code Section 8532, which has not been released, withdrawn or for which Borrower has not furnished the bond required by California
Civil Code Section 8510 satisfactory to Administrative Agent to indemnify Lenders from all loss, cost or expense with respect to
such lien or notice withhold.


 


(d)          There
shall have occurred no material adverse change in the condition of Borrower, any Guarantor, the General Contractor or with respect
to the Project, and no event shall have occurred which will give Lenders reasonable cause to believe that the construction of the
Improvements cannot be completed by the Completion Date in accordance with the Plans and Specifications and the terms of this Agreement.


 




    	 	15	 



     


    

 


(e)          The
Property shall not have been materially injured or damaged by fire or other casualty, or, in the event of such damage, Borrower
shall have satisfied the conditions of Section 2.12 of the Deed of Trust;


 


(f)          All
representations and warranties contained in this Agreement are true and correct.


 


(g)          The
conditions to disbursements set forth in Article V hereof shall have been satisfied.


 


ARTICLE
IV


BORROWER’S ACCOUNT


 


The
proceeds of the Loan, and, if applicable, any sums in any other accounts referenced in this Agreement (to the extent that Administrative
Agent has control over disbursement from such account) (the “Controlled Accounts”), when qualified for disbursement,
shall be deposited into the Borrower’s Account or otherwise disbursed to or for the benefit or account of Borrower in accordance
with the Loan Documents. As additional security for Borrower’s performance under the Loan Documents, Borrower hereby irrevocably
pledges and assigns to Administrative Agent for the benefit of all Lenders the Borrower Account and all monies at any time deposited
in the Borrower Account. Borrower shall not, without obtaining the prior written consent of Lenders, further pledge, assign or
grant any security interest in the Borrower, any Account, or any funds on deposit in Account, or permit any lien to attach thereto,
or any levy to be made thereon, or any UCC Financing Statements to be filed thereon, except those naming Lender as the secured
party, to be filed with respect thereto. This Agreement is, among other things, intended by the parties to be a security agreement
for purposes of the UCC.


 


ARTICLE
V


DISBURSEMENTS


 


		5.1	Disbursements.



 


(a)          Lenders
shall disburse the Loan to or for the account of Borrower at such times (but no more frequently than once every thirty (30) Business
Days) as Borrower may request and in accordance with the terms and conditions of this Agreement.


 


(b)          Each
request for disbursement shall be subject to an administrative fee of $3,975, which shall be paid by the Borrower, and not from
proceeds of the Loan;


 


(c)          Each
disbursement shall be made only for costs set forth in the Budget and actually incurred by the Borrower. No Proceeds of the Loan
will be disbursed for any line item in the Budget in excess of the amount allocated to that line item. Whenever the Administrative
Agent determines, in its sole discretion, that amounts allocated in the Budget to a certain line item, including contingencies,
are in excess of the amount needed for such line item, Administrative Agent may reallocate all or a portion of such excess to any
other line item, and thereafter notify the Borrower in writing of such reallocation. No other reallocations between line items
shall be permitted without the Administrative Agent’s prior written consent, which may be granted or withheld in Administrative
Agent’s sole discretion.


 




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(d)          Lenders
shall not withhold any retainages with respect to disbursements made hereunder. In no event will disbursements include costs covered
by a prior disbursement.


 


5.2         Conditions
to Initial Disbursements.


 


(a)          Lenders
shall make an initial disbursement of the Loan upon the satisfaction of the conditions precedent set forth in Article III above
in the amount set forth in the estimated closing statement, as prepared by the escrow company designated to handle the funding,
which shall comprise [$1,899,465] to pay the Origination Fee and the other costs referred to in Section 3.1(E)(vi) and (vii) above
and $15,380,483 for the purpose of paying off the existing loan. Proceeds of the Loan used to pay the Origination Fee and costs
incurred by Lenders shall be disbursed directly to Administrative Agent, without need for any notice to or request of Lenders.


 


(b)          Lenders
shall make additional disbursements of the Loan after the initial disbursement provided for in Section 5.2(a) but before the commencement
of construction of the Improvements solely for costs incurred in acquiring Permits.


 


5.3         Conditions
to Disbursement of Hard Costs. Lenders shall make each disbursement of the Loan to pay for Hard Costs upon the satisfaction
of the following conditions, if checked in the following sections, in form and substance satisfactory to Administrative Agent:


 


(a)          x          Borrower
shall have delivered to Administrative Agent a completed application for disbursement on AIA form G-702, signed by the Borrower,
the Architect (if required by Administrative Agent), and the General Contractor, together with all of the following, not less than
ten (10) Business Days before the date on which Borrower requests the disbursement to be made:


 


(i)          x          if
required by Administrative Agent, completed checks payable to the General Contractor or other Contractors;


 


(ii)         x          if
required by Administrative Agent, executed copies of all Contracts not previously delivered to and approved by Administrative Agent,
which Administrative Agent shall have approved;


 


(iii)        x          a
report signed by the Architect, the General Contractor or such other person as Administrative Agent shall determine showing the
estimated percentage of completion of each item or element of the Improvements and corresponding figures showing the percentage
of the amount of the line item of the Budget expended on such item or element of the Improvements;


 


(iv)        x          conditional
lien releases to a current date from all Contractors and other persons entitled to record a valid lien or serve a valid stop notice
who will be paid from the current disbursement and unconditional lien releases from all Contractors and other persons entitled
to record a valid lien or serve a valid stop notice with respect to all prior disbursements;


 




    	 	17	 



     


    

 


(v)          x          if
required by Administrative Agent, invoices in form and substance satisfactory to Administrative Agent completed by the Contractors
who have supplied labor or material to the Project and are entitled to be paid, together with appropriate certifications of delivery
of materials to the jobsite; and


 


(vi)         x          copies
of any other documents or items which Administrative Agent, in its good faith judgment, deems necessary and appropriate;


 


(b)          x          Administrative
Agent shall have received satisfactory evidence that all Permits required in connection with the work for which the disbursement
is sought have been issued;


 


(c)          x          at
such time as foundations are completed, Administrative Agent shall have received a CLTA 102.5 endorsement for each foundation completed,
and if required by Administrative Agent, a certificate from the Architect acceptable to Administrative Agent certifying that the
foundations have been constructed in conformity with all recommendations of the soils report approved by Administrative Agent;


 


(d)          x          if
required by Administrative Agent, a current CLTA 122 endorsement satisfactory to Administrative Agent and such other endorsements
to the Title Policy satisfactory to Administrative Agent as Administrative Agent may, in its discretion, determine are necessary;


 


(e)          x          Administrative
Agent or a consultant retained by Administrative Agent shall have inspected the Project and provided to Administrative Agent a
report verifying that (i) the Improvements are being constructed in accordance with the Plans and Specifications, the Budget, all
Permits and all requirements and recommendations of any engineers, consultants and governmental entities; (ii) the materials and
labor being paid for with the proceeds of the disbursement of the Loan being requested have been incorporated into the Project
or rendered in connection with the Project, respectively; (iii) the Loan is In Balance; and (iv) the statements of Borrower, the
Architect, the General Contractor and any other person signing the application for disbursement are true.


 


5.4         Conditions
to Disbursement of Soft Costs. Lenders shall make each disbursement of the Loan to pay for Soft Costs upon Borrower’s
written request accompanied by invoices, statements or such other evidence that Borrower has duly incurred the cost requested to
be disbursed as Lenders shall request, together with such other conditions set forth in Section 5.3 as Lenders shall request.


 


5.5         Conditions
to Certain Disbursements. Notwithstanding other provisions of this Article V, Lender will disburse Loan funds for the
following items on the following conditions and in the following amounts:


 




    	 	18	 



     


    

 


(a)          Any
amounts specified in the Budget for developer fees shall be disbursed upon satisfaction of all of the following: (i) either (A)
a valid notice of completion has been recorded and the applicable lien periods have expired or (B) Administrative Agent has received
lien waivers or releases in form and content satisfactory to Administrative Agent evidencing actual payment for work performed
to date of such lien waiver or release (except for the amount of any work covered by a surety bond satisfactory to Administrative
Agent) from all Contractors employed or furnishing materials in connection with the construction of the Improvements; (ii) all
claims of lien and stop notices that may have been recorded or notice thereof served on any Lender have either been paid in full
and released, or Borrower has posted an appropriate surety bond to discharge the same; (iii) Borrower shall have procured and delivered
to Administrative Agent an endorsement to the Title Policy in the form of CLTA No. 101.2, and such additional endorsements to the
Title Policy satisfactory to Administrative Agent showing the Deed of Trust to be a first lien upon the Property, excepting only
such items as have previously been approved by Administrative Agent; (iv) Borrower shall have delivered to Administrative Agent
a certificate of the Architect attesting to the completion of the Improvements in a good and workmanlike manner in accordance with
the Plans and Specifications; and (v) Borrower shall have delivered the original or a certified copy of a Certificate of Occupancy
for the Improvements from the applicable governmental entity.


 


(b)          Funds
to pay for the “interest” line item in the Budget and Loan expenses owing by Borrower to Lenders shall be
disbursed directly to Lenders as and when due under the Note or other Loan Documents. Any amounts so advanced by Lenders from
such line item shall be secured by the Deed of Trust and the other Loan Documents. Lenders shall give Borrower notice of any
such application of amounts available under the Loan to the payment of Loan expenses.


 


(c)          Amounts
under the Budget line item “contingency” shall disbursed only with Lender’s consent, which it may grant or withhold
in its sole and absolute discretion.


 


5.6         Stored
Materials. Notwithstanding the other provisions of this Article V, Lenders shall have the right to determine in its
sole discretion whether to make disbursements for materials to be purchased by Borrower or any Contractor employed in connection
with the construction of the Improvements at the date of a request for disbursement but not yet incorporated into the Improvements.
Any disbursements approved by Lenders for such materials shall be subject to the following further conditions: (a) Administrative
Agent on behalf of Lenders has a valid, perfected first-priority security interest in all such materials; (b) the insurance policies
required in the Deed of Trust cover such materials; (c) such materials are stored in a location and protected against theft or
damage by means approved by Administrative Agent; and (d) title to such materials has passed to Borrower free and clear of all
liens, claims, security interests or encumbrances other than Administrative Agent’s security interest in such materials.
Borrower’s and Lenders’ interest shall otherwise be fully protected including the provision of applicable insurance
and transportation to the Property for those materials and equipment stored off the Property.


 


5.7         In
Balance. If at any time the Loan is not In Balance, Lenders shall not be required to make further disbursements of the
Loan under this Agreement unless and until each of the following have been satisfied in Lenders’ discretion :


 


(a)          Borrower
shall have paid from its own funds sufficient costs of construction so that the Loan is In-Balance;


 




    	 	19	 



     


    

 


(b)          Borrower
shall have delivered to Administrative Agent a description of the work paid for by Borrower out of its own funds, together with
copies of the invoices paid by Borrower; and


 


(c)          Borrower
shall have delivered to Administrative Agent unconditional lien releases from all Contractors and other persons entitled to record
a valid lien or serve a valid stop notice who were paid by Borrower.


 


Borrower’s
failure to cause the Loan to be In Balance within 30 days of Borrower’s receipt of written notice from Administrative Agent
that the Loan is not In-Balance shall constitute an Event of Default.


 


5.8         Persons
to Whom Disbursements Made. At Administrative Agent’s option, disbursements of the Loan may be made to Borrower
or for Borrower’s account to the person to whom Borrower is obligated with respect to the amount being disbursed.


 


5.9         The
Loan Administrator. At Borrower’s sole cost and expense, Administrative Agent may retain a construction loan administrator
to administer this Agreement, determine Borrower’s satisfaction of the conditions precedent for any disbursement, coordinate
disbursements of the Loan and perform such other services as Administrative Agent may desire.


 


5.10       Lenders’
Verification. Any of the items required to be delivered by Borrower to Lenders in connection with this Agreement may
be verified by Administrative Agent, or an agent designated by Administrative Agent by, amongst other things, inspection of the
construction of the Improvements or such other investigation as Administrative Agent, or any such agent may deem necessary or desirable;
it being understood, however, that any inspections or approvals shall be for Lenders’ sole benefit, and shall in no way abrogate
or modify in any manner the effect of any certifications made by Borrower pursuant to this Article V or Borrower’s representations
and warranties pursuant to Article V below.


 


5.11       Lender’s
Discretion. Lenders will not be required to make disbursements of the Loan for any portion of the Improvements if any
inspection performed by Administrative Agent or its representative respecting such portion of the Improvements discloses any material
state of facts reasonably objectionable to Lenders.


 


ARTICLE
VI 

REPRESENTATIONS AND WARRANTIES


 


Borrower
makes the representations and warranties set forth in this Article VI to Lenders.


 


6.1         Existence.
Borrower is a corporation duly organized, validly existing and in good standing under the laws of California. Each Guarantor is
an individual resident of the State of California.


 


6.2         Formation
and Organizational Documents. Borrower has delivered to Administrative Agent all of the relevant formation and organizational
documents of Borrower. Borrower hereby certifies that: (i) the above documents are all of the relevant formation and organizational
documents of Borrower; (ii) they remain in full force and effect; and (iii) they have not been amended or modified since they were
delivered to Administrative Agent. Borrower shall immediately provide Administrative Agent with copies of any future amendments
or modifications of the formation or organizational documents of Borrower.


 






    	 	20	 



     


    

 


6.3         Power.
Borrower has all necessary liability company power to enter into the Loan Documents to which it is a party, complete the construction
of the Improvements and perform its obligations under such Loan Documents.


 


6.4         Enforceability
of Loan Documents. Borrower has taken all action necessary to authorize the execution, delivery and performance of the
Loan Documents and the Environmental Indemnity. All consents of the members of Borrower necessary to authorize Borrower to enter
into the Loan Documents and the Environmental Indemnity have been obtained. The Loan Documents and the Environmental Indemnity
have been duly executed and delivered by Borrower and are the legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms.


 


6.5         Enforceability
of Guaranty. The Guaranty has been duly executed and delivered by Guarantors and are the legal valid and binding obligations
of Guarantors enforceable against Guarantors in accordance with their respective terms.


 


6.6         Approvals.
(a) Borrower has obtained all Permits necessary to the operation and maintenance of the Property and the construction of the Improvements
or will be able to obtain all such Permits so necessary at the times needed to permit timely completion of the Improvements; and
(b) no authorization or approval or other action by, and no notice to or filing with any governmental authority or regulatory body
is required for the due execution, delivery and performance by Borrower of the Loan Documents to which it is a party.


 


6.7         No
Conflict. Borrower’s execution and delivery of, and its performance of its obligations under, the Loan Documents
to which it is a party do and will not conflict with (a) any (i) contractual or legal restriction or obligation, or (ii) court
or regulatory order, binding on or affecting Borrower, or (b) any restriction contained in any of Borrower’s constituent
or governing documents.


 


6.8         Pending
Litigation or Other Proceedings. There is no pending or, to the knowledge of Borrower, threatened action, proceeding
or investigation before any court, governmental agency or arbitrator against or affecting Borrower, the Property or any of Borrower’s
other assets which, if decided adversely to Borrower, would materially and adversely affect the financial condition of Borrower
or of any of Borrower’s assets, including, without limitation, the Property, or would materially and adversely affect the
present or future ability of Borrower to perform its obligations under the Loan Documents to which it is a party.


 


6.9         Solvency.
Borrower is not insolvent and will not be rendered insolvent by the transactions contemplated by the Loan Documents. After giving
effect to such transactions, Borrower will not be left with an unreasonably small amount of capital with which to engage in its
business or undertakings, nor will Borrower have intended to incur, or believe that it has incurred, debts beyond its ability to
pay such debts as they mature.


 




    	 	21	 



     


    

 


6.10       No
Liens. There are no liens or encumbrances upon or with respect to the Property except the liens and encumbrances shown
on the Title Policy (the “Permitted Encumbrances”).


 


6.11       Title.
Borrower has good, marketable and indefeasible title in fee to the Property, free and clear of all material encumbrances except
the Permitted Encumbrances. The Deed of Trust, when properly recorded in the Official Records of Alameda County, together with
the Uniform Commercial Code financing statement, when properly filed with the California Secretary of State, will create, respectively,
(a) a valid, perfected first-priority lien on the “Real Property” (as defined in the Deed of Trust”), subject
only to Permitted Encumbrances, and (b) a valid, perfected first-priority security interest in the “Personal Property”
(as defined in the Deed of Trust) to the extent such a lien may be perfected by such a filing, subject only to Permitted Encumbrances.
Except for any Permitted Encumbrance or any lien which has been “insured around” to the satisfaction of Administrative
Agent, there are no liens or claims for work, labor or materials affecting the Property. The Permitted Encumbrances do not materially
adversely impair Borrower’s current use and operation of any of the Property or otherwise materially adversely impair Borrower’s
ability to perform any of its obligations under the Loan Documents.


 


6.12       Taxes.
Borrower has paid and discharged all installments for the payment of “Impositions” (as defined in the Deed of Trust)
due to date, and all other material taxes, levies, maintenance charges, utilities charges or any other governmental or private
assessment or charge, imposed against, affecting or relating to the Property other than those which have not become due, together
with any fine, penalty, interest or cost for non-payment pursuant to such returns or pursuant to any assessments received by it.


 


6.13       Property
Laws. The Property complies in all material respects with all Property Laws now affecting the Property. Borrower has
not received any written notification or threat of any actions or proceedings regarding the noncompliance or nonconformity of the
Property with Property Laws or Permits, nor is Borrower otherwise aware of any such pending actions or proceedings.


 


6.14       Compliance
With Laws; Use. Borrower has, and at all times shall have obtained, all permits, licenses, exemptions, and approvals
necessary to construct, occupy, operate and market the Property and Improvements and shall maintain compliance with all governmental
requirements applicable to the Property and Improvements and all other applicable statutes, laws, regulations and ordinances necessary
for the transaction of its business. The Property is a separate legal parcel lawfully created in full compliance with all subdivision
laws and ordinances, and is properly zoned for the stated use of the Property as disclosed to Lenders at the time of execution
hereof.


 


6.15       Loan
Proceeds And Adequacy. The undisbursed amount of the Loan, together with all other sums, if any, to be provided by Borrower
in the Loan Budget, are sufficient to construct the Improvements in accordance with the terms and conditions of this Agreement.


 


6.16       Americans
With Disabilities Act Compliance. The Improvements have been designed and shall be constructed and completed, and thereafter
maintained in full and strict compliance with the requirements and regulations of the Americans with Disabilities Act, of July
26, 1990, Pub. L. No. 101-336, 104 Stat. 327, 42 U.S.C. § 12101, et seq., as amended from time to time. At Administrative
Agent’s written request from time to time, Borrower shall provide Administrative Agent with written evidence of such compliance
satisfactory to Administrative Agent. Borrower shall be solely responsible for all such ADA costs of compliance and reporting.


 




    	 	22	 



     


    

 


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


 


6.18       Liability
for Hazardous Materials. Borrower has no liability, contingent or otherwise, under any Hazardous Materials Law or with
respect to any activity involving Hazardous Materials on or about the Property.


 


6.19       Hazardous
Materials Activity. There exists no activity involving Hazardous Materials on or about the Property in violation of
any Hazardous Materials Law and Borrower has not caused or, to the knowledge of Borrower, permitted to occur any condition which
may cause a release of any Hazardous Materials in violation of any Hazardous Materials Law on or about the Property. Borrower is
not aware of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the
Property to be classified as “border-zone property” under the provisions of California Health and Safety Code, Sections
25220 et. seq. or any related regulation, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability
or use of the Property under any Hazardous Materials Laws.


 


6.20       Hazardous
Materials Laws. Neither Borrower nor, to the knowledge of Borrower, any other party, has been or is involved in operations
at the Property which could reasonably be expected to lead to (i) the imposition of liability on Borrower under any Hazardous Materials
Law, or on any subsequent or former owner of the Property, or (ii) the creation of a lien on the Property under any Hazardous Material
Law. Borrower has not permitted any tenant or occupant of the Property to engage in any activity that could reasonably be expected
to impose a claim or liability under any Hazardous Material Law on such tenant or occupant, on Borrower or on any other subsequent
or former owner of the Property.


 


6.21       No
Option or Other Rights. No option to purchase, right of first refusal or similar right exists with respect to the Property.


 


6.22       Insurance.
Borrower has complied with all of the requirements of Section 2.11 of the Deed of Trust with respect to insurance.


 


6.23       Encroachments.
When constructed, none of the Improvements will encroach upon the property of any other person or lye outside of the boundaries
and building restriction lines of the Property and no improvement located on property adjoining the Property lies within the boundaries
of or in any way encroaches upon the Property.


 




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6.24       Independent
Parcel. (a) The Property is an independent parcel which does not rely on any drainage, sewer, access, parking, structural
or other facilities located on any property not included in the Property or on public or utility easements for the fulfillment
of any zoning, building code or other requirement of any governmental authority that has jurisdiction over the Property; (b) Borrower,
directly or indirectly, has the right to use all amenities, easements, public or private utilities, parking, access routes or other
items necessary or currently used for the construction of the Improvements and the operation of the Property; (c) all public utilities
are available at the boundaries of the Property in sufficient quantities to support the ordinary use of the Improvements as they
are contemplated by the Plans and Specifications; and (d) the Property is either (i) contiguous to or (ii) benefits from an irrevocable
unsubordinated easement permitting access from the Property to a physically open, dedicated public street, and has all necessary
permits for ingress and egress. No building or other improvement not located on the Property relies on any part of the Property
to fulfill any zoning requirements, building code or other governmental or municipal requirements for structural support or to
furnish to such building or improvement any essential building systems or utilities.


 


6.25       No
Contractual Defaults. There are no material defaults by Borrower or, to Borrower’s knowledge, by any former owner
or any other person under any material contract to which Borrower is a party relating to the Property, including, without limitation,
any management, rental, service, supply, security, maintenance or similar contract. Neither Borrower nor, to Borrower’s knowledge,
any former owner has received notice or has any knowledge of any existing circumstances in respect of which it could receive any
notice of default or breach in respect of any material contracts affecting or concerning the Property.


 


6.26       Non-Foreign
Person. Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest
must withhold tax if the transferor is a foreign person. To inform Lenders that the withholding of tax is not required upon the
disposition of a United States real property interest by Borrower, Borrower certifies the following:


 


(a)          Borrower
is not a non-resident alien, a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax Regulations);


 


(b)          Borrower’s
United States taxpayer identification number is 47-1762791; and


 


(c)          Borrower’s
office address is 2051 Junction Ave., Suite 230, San Jose, CA 95131.


 


Borrower
understands that Lenders may disclose this certification to the Internal Revenue Service and that any false statement contained
in this certification could be punished by fine, imprisonment, or both.


 


6.27       Financial
Position. The financial statements and all financial data delivered to Lenders relating to Borrower, the Guarantors
and the General Contractor are true, correct and complete in all material respects. Such financial statements fairly present the
financial position of the parties who are their subjects as of the dates indicated. No material adverse change has occurred in
such financial position since the date of such financial statements, and, except for the Loan, Borrower has incurred no indebtedness
since the date of any such statements.


 




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6.28        Disclosure.
None of Borrower’s representations or warranties contained in this Agreement or any other document, certificate or written
statement furnished to Lenders by or on behalf of Borrower contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained in this Agreement or in such other document, certificate or written
statement (when taken in their entirety) not misleading. There is no fact known to Borrower which materially or adversely affects
the business, operations, assets or condition (financial or otherwise) of Borrower or the Property which has not been disclosed
in this Agreement or in another written statement delivered to Administrative Agent by Borrower.


 


6.29       Commencement
of Work on the Property. Neither Borrower nor anyone else on Borrower’s behalf has commenced construction of the
Improvements or brought upon the Property any materials to be incorporated into the Improvements.


 


6.30       Budget
and Construction Schedule. The Budget sets forth Borrower’s good faith estimates of the amounts necessary (i)
to pay all costs to be incurred in connection with the construction of the Improvements and the completion of the Project as contemplated
by this Agreement, (ii) to pay all sums which may accrue under the Loan Documents prior to repayment of the Loan, including interest
on the Loan, and (iii) to enable Borrower to perform all of its covenants and obligations contained in the Loan Documents. The
Construction Schedule sets forth Borrower’s good faith estimate of the time in which the Improvements can reasonably be completed
by the General Contractor and other Contractors working ordinary schedules with due consideration to prevailing conditions.


 


6.31       Patriot
Act. Borrower is not in violation of the USA Patriot Act of 2001, 107 Public Law 56 (October 26, 2001) nor any other
statutes and orders, rules and regulations of the United States government and its various executive departments, agencies and
offices related to the subject matter of such act.


 


6.32       Contracts.
All Contracts entered into by Borrower as of the date of this Agreement have been duly authorized, executed and delivered by Borrower
and are in full force and effect with no defaults having occurred thereunder.


 


ARTICLE
VII


SEPARATENESS
PROVISIONS


 


Borrower
hereby represents, warrants and covenants to Lenders as follows:


 


7.1         Limited
Purpose. The sole purpose to be conducted or promoted by Borrower since its organization is to engage in the following
activities: (i) to acquire, own, hold, lease, operate, manage, maintain, develop and improve the Property and construct the Improvements;
(ii) to enter into and perform its obligations under the Loan Documents; (iii) to sell, transfer, service, convey, dispose of,
pledge, assign, borrow money against, finance, refinance or otherwise deal with the Property and Improvements to the extent permitted
under the Loan Documents; and (iv) to engage in any lawful act or activity and to exercise any powers permitted to limited liability
companies organized under the laws of the State of California that are related or incidental to and necessary, convenient or advisable
for the accomplishment of the above mentioned purposes.


 




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7.2         Limitations
On Debt. Actions. Notwithstanding anything to the contrary in the Loan Documents or in any other document governing
the formation, management or operation of Borrower, Borrower shall not:


 


(a)          guarantee
any obligation of any person or entity, including any affiliate, or become obligated for the debts of any other person or entity
or hold out its credit as being available to pay the obligations of any other person or entity;


 


(b)          engage,
directly or indirectly, in any business other than as required or permitted to be performed under Section 7.1;


 


(c)          incur,
create or assume any indebtedness or liabilities other than:


 


(i)           the
Loan,


 


(ii)          trade
debt incurred with respect to the construction of the Improvements;


 


(d)          make
or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any person or entity;


 


(e)          to
the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or Transfer of any of
its assets outside the ordinary course of Borrower’s business;


 


(f)          buy
or hold evidence of indebtedness issued by any other person or entity (other than cash or investment-grade securities);


 


(g)          form,
acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest
in any other entity;


 


(h)          own
any asset or property other than the Property, Improvements and incidental personal property necessary for the ownership or operation
of the Property and Improvements; or


 


(i)           take
any material action without the unanimous written approval of all members of Borrower.


 




    	 	26	 



     


    

 


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


 


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


 


7.4         Separateness
Provisions In Borrower Organizational Documents. Borrower covenants and agrees to incorporate the provisions contained
in this Article VII into Borrower’s organizational documents and Borrower agrees not to amend, modify or otherwise change
its organizational documents with respect to the provisions of this Article.


 


ARTICLE
VIII


COVENANTS


 


8.1         Maintenance
of Existence. Borrower and each Guarantor which is not a natural person shall maintain and preserve its respective existence
and all rights and franchises material to its respective business.


 




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8.2         Construction
Period. Borrower shall commence construction of the Improvements promptly following and in any event within 30 days
from the date of this Agreement, and prosecute such construction with diligence and continuity in accordance with the Construction
Schedule and the Plans and Specifications in a good and workmanlike manner. The Improvements shall be completed not later than
the Completion Date. Notwithstanding the foregoing, the Completion Date may be extended for a period equal to the period of delays
caused by fire, earthquake, floods, inclement weather or other acts of God, acts of public enemies, riot, insurrection, governmental
regulation of the sale of materials and supplies or the transportation thereof, lockouts, strikes directly affecting the work of
construction, or shortages of material or labor resulting directly from governmental control or diversion, but in no event may
the time for completion of the Improvements extend beyond 60 days after the Completion Date.


 


8.3         Contractors.


 


(a)          Borrower
shall strictly comply with and enforce all Contracts and shall not agree to any material alterations or amendments of any Contract
to the end that all Contractors promptly and diligently perform all of the obligations on their part to be performed.


 


(b)          Borrower
shall, at Administrative Agent’s request, deliver to Administrative Agent financial statements with respect to such Contractors
as Administrative Agent shall designate; all of which shall be subject to Administrative Agent’s good faith determination
that the same are financially and otherwise qualified to perform the work or supply the materials which they are required, but
Administrative Agent’s failure to disapprove any such Contractor shall not constitute a warranty or representation by any
Lender that any such Contractor not so disapproved is in fact so qualified.


 


(c)          If
requested by Administrative Agent, Borrower shall from time to time provide to Administrative Agent copies of such Contracts as
are entered into after the date of this Agreement as well as collateral assignments of Borrower’s interests in such Contracts
together with appropriate consents to such assignments by the Contractors which are parties to such Contracts which provide that
such Contractors will provide for Lenders the services contracted to Borrower, notwithstanding the occurrence of an Event of Default
or foreclosure of the Deed of Trust.


 


8.4         Approval
of Changes in Plans and Specifications.


 


(a)          Borrower
shall make no change in the Plans and Specifications without the prior written approval of Administrative Agent if such change
would (i) itself result in a cost increase in an amount $200,000 more than the amount then set forth for such cost in the Budget,
(ii) together with all previous changes, result in an aggregate cost increase in an amount $200,000 more than the amounts set forth
for the changed items in the Budget, (iii) affect the structural components of the Improvements or (iv) cause the estimated time
to complete the Improvements to extend beyond the Completion Date. The Plans and Specifications shall not be modified in any way
which would detract from the value of the Project. Required changes shall be submitted for approval on a form acceptable to Administrative
Agent accompanied by a copy of the plans and specifications as changed. Such changes must, prior to being effective, be duly approved
by Administrative Agent and all other persons required by Lender. Lenders are under no duty to review, or inform Borrower of, the
quality or suitability of the Plans and Specifications or any amendment or alteration to them.


 




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(b)          As
a condition to any such approval, Lenders may require, in their sole discretion, confirmation satisfactory to Administrative Agent
that performance of the work contemplated under such change shall not increase the total cost of the Improvements or otherwise
increase the Budget; and if it appears that performance of such work shall result in such an increase, Lenders may, in their sole
discretion, condition their approval upon a deposit by Borrower of the amount of such increase in accordance with Section 5.8 above.


 


(c)          Borrower
acknowledges that the process of obtaining the information and confirmation needed to put Lenders in a position to approve changes
in the Plans and Specifications may cause delays, and Borrower consents to such delays and agrees to cooperate diligently with
Lenders in the gathering of the information required. All Contracts let by Borrower shall, to the extent reasonably possible, contain
provisions implementing the provisions of this Section 8.4.


 


(d)          Upon
completion of the Improvements, Borrower shall deliver to Administrative Agent a complete set of “as built” working
drawings and an improvements survey showing the location of the Improvements on the Property and such additional information as
Administrative Agent shall reasonably require.


 


8.5         Purchase
of Materials Under Conditional Sales Contract. No materials, equipment, fixtures or any other part of the Improvements,
or articles of personal property placed in the Improvements, shall be purchased or installed under any security agreement or other
arrangements in which the seller reserves or purports to reserve a security interest in any such items or the right to remove or
to repossess any such items or to consider them personal property after their incorporation in the work of construction, unless
authorized by Administrative Agent in writing.


 


8.6         Compliance
with Applicable Laws. All work on the Improvements shall be performed in strict compliance with all applicable laws,
including, without limitation, the Permits and Property Laws.


 


8.7         Assessments
And Improvement Districts. Without Lenders’ prior written consent, Borrower shall not cause or suffer to become
effective or otherwise consent to the formation of any assessment district, improvement district, community facilities district,
special district, special improvement district, governmental district or other similar district (any of the foregoing hereinafter
referred to as a “District”); nor shall Borrower cause or otherwise consent to the levying of special taxes or assessments
against the Property and Improvements by any such District. Borrower shall immediately give notice to Administrative Agent of any
notification or advice that Borrower may receive from any municipality or other third party of any intent or proposal to include
the Property and Improvements in any District or to levy any such special taxes or assessments. Lenders shall have the right to
file a written objection to the inclusion of all or any part of the Property and Improvements in any District, or to the levy of
any such special taxes or assessments, either in its own name or in the name of Borrower, and to appear at, and participate in,
any hearing with respect to the formation of any such District or the levy or such special taxes or assessments.


 




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8.8         Surveys.
Upon Administrative Agent’s written request, Borrower shall promptly deliver to Administrative Agent: (a) a perimeter survey
of the Property; (b) upon completion of the foundations of the Improvements, a survey showing the location of the Improvements
on the Property and confirming that the Improvements are located entirely within the Property and do not encroach upon any easement,
or breach or violate any governmental requirement; and (c) upon completion of the Improvements, an as-built survey of the Property
and Improvements. All such surveys shall be performed and certified by a licensed engineer or surveyor acceptable to Administrative
Agent and the Title Company, shall be prepared according to current ALTA/ACSM Minimum Standard Detail Requirements and any additional
items required by Administrative Agent or the Title Company, and shall be certified to Administrative Agent and the Title Company.


 


8.9         Liens
and Stop Payment Notices. If a claim of lien is recorded which affects the Property or Improvements or a bonded stop
payment notice is served upon any Lender, Borrower shall, within twenty (20) calendar days of such recording or service or within
five (5) calendar days of such Lender’s or Administrative Agent’s demand, whichever occurs first: (a) pay and discharge
the claim of lien or bonded stop payment notice; (b) effect the release thereof by recording or delivering to such Lender a surety
bond in sufficient form and amount; or (c) provide such Lender with other assurances which such Lender deems, in its sole discretion,
to be satisfactory for the payment of such claim of lien or bonded stop payment notice and for the full and continuous protection
of Lenders from the effect of such lien or bonded stop payment notice.


 


8.10       Inspection.
Administrative Agent, through its officers, agents and contractors, shall have the right at all reasonable times at Borrower’s
expense:


 


(a)          To
enter upon the Property and inspect the work of construction to determine that such work is in conformity with the Plans and Specifications
and all the requirements of this Agreement; and


 


(b)          To
examine, copy and make extracts of, the books, records, accounting data and other documents, including but not limited to all permits,
licenses, consents and approvals of all governmental authorities having jurisdiction over Borrower, the Improvements or the Property,
and all Contractors. Such books, records and documents shall be made available to Administrative Agent promptly upon written request.
All Contracts entered into or amended by Borrower or any Contractor after the date of this Agreement shall require an acknowledgement
of the foregoing inspection rights, except where such rights have been waived by Administrative Agent in writing.


 


Borrower
acknowledges that Lenders are under no duty to supervise or to inspect the work of construction or any books and records, and that
any such inspection is for the sole purpose of preserving Lenders’ rights under this Agreement. A failure to inspect the
work shall not constitute a waiver of any of any Lender’s rights under this Agreement. Inspection not followed by notice
of default shall not constitute a waiver of any Potential Event of Default or Event of Default then existing; nor shall it constitute
an acknowledgement that there has been or will be compliance with the Plans and Specifications or that the construction is free
from defective materials or workmanship.


 




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8.11       Work
on Site. No work of any character shall be commenced upon, nor shall any materials be delivered to, the Property until
the Title Policy has been received by Administrative Agent or if work has commenced with Lenders’ consent, the Title Insurer
has agreed to insure Lenders to Lenders’ satisfaction.


 


8.12       Changes
to Budget or Construction Schedule. If Borrower desires a change in (a) the nature, type or amount of Project Costs
that are currently estimated in the Budget, or (b) the Construction Schedule, Borrower shall submit to Administrative Agent a revised
Budget setting forth its good faith revised estimate of Project Costs and their source of payment or a revised Construction Schedule,
as appropriate. Such revised Budget or Construction Schedule must be approved by Lenders before the revised Budget or Construction
Schedule replaces the then current Budget or Construction Schedule. Administrative Agent shall charge a fee of $14,500 for reviewing
such revised Budget or Construction Schedule.


 


8.13       Distributions.
Borrower shall not make any distributions of its assets to any member of Borrower, whether or not such a distribution is permitted
under the terms of the Operating Agreement, including, without limitation, repayment of any loans made by a member to Borrower,
any accrued interest on such loans, return of capital contributions, distributions upon termination, liquidation or dissolution
of Borrower or any development, property management, accounting or other fees payable to a member in Borrower (unless any such
fee is expressly included in the Budget and has been approved by Lenders).


 


8.14       Publicity.
Borrower shall permit Lenders to publicize its involvement in the financing of the Property, including without limitation permitting
Lenders to (a) maintain a sign indicating such involvement at a location on the Property reasonably acceptable to Borrower and
Administrative Agent, (b) take pictures of the Property and post them on any Lender’s website, and (c) use Lenders providing
financing to Borrower in any Lender’s promotional materials.


 


8.15       Reporting.
Borrower shall deliver the following information to Administrative Agent:


 


(a)          as
soon as available, but in no event later than 90 days after Borrower’s fiscal year end, a financial statement as of the end
of Borrower’s fiscal year (including, without limitation, an income and expense statement) signed and certified to be true,
complete and correct, by an authorized officer of the Borrower.


 


(b)          within
15 days of Administrative Agent’s request, Borrower shall cause to be delivered to Administrative Agent such quarterly and
other financial information regarding any persons or entities in any way obligated on the Loan as Administrative Agent may specify.
If audited financial information is prepared, Borrower shall deliver to Administrative Agent copies of that information within
fifteen (15) days of its final preparation.


 


(c)          within
fifteen days of filing or on October 15th of each year, whichever is earlier complete copies of federal and state tax returns for
Borrower and Guarantors, together with all schedules thereto, each of which shall be signed an certified by an authorized officer
of the Borrower to be true and complete copies of such returns. In the event an extension is filed, Borrower shall deliver to Administrative
Agent a copy of the extension within thirty (30) days from filing.


 




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(d)          Borrower
shall maintain complete books of account and other records for the Property and Improvements and for disbursement and use of the
proceeds of the Loan, and the same shall be available for inspection and copying by Administrative Agent upon reasonable prior
notice.


 


8.16       Affiliate
Transactions. Borrower shall not enter into any agreement (including, without limitation, leases) respecting the Property
with any Affiliate unless each Lender has approved of such transaction and agreement, which approval may be granted or withheld
in each Lender’s sole and absolute discretion. Without limitation of the foregoing approval right, Borrower shall, at Administrative
Agent’s request, insert a provision in any such agreement permitting Administrative Agent (or its affiliate) or any other
purchaser of the Property at a foreclosure sale to terminate such agreement without cause or any payment upon such party’s
acquisition of the Property through foreclosure, deed-in-lieu of foreclosure or otherwise. Nothing in this Section 8.16 shall be
construed as permitting Borrower to enter into any agreement respecting the Property with an Affiliate that the Borrower would
not be permitted to enter into with a person or entity that is not an Affiliate under any of the Loan Documents.


 


8.17       Notice
of Certain Matters. Borrower shall give notice to Administrative Agent, promptly upon learning thereof, of each of the
following:


 


(a)          any
litigation or claim of any kind affecting or relating to the Property or the construction of the Improvements;


 


(b)          any
material dispute (i) between Borrower, any of Borrower’s members, or any Guarantor (ii) between any of them and any governmental
entity relating to the Property or the construction of the Improvements; or (iii) between Borrower and General Contractor;


 


(c)          any
trade name hereafter used by Borrower or any change in Borrower’s principal place of business;


 


(d)          the
occurrence of any Event of Default or Potential Event of Default and Borrower’s plans for curing same;


 


(e)          the
existence of any lien or encumbrance other than a Permitted Encumbrance on the Property;


 


(f)          copies
of any future amendments or modifications of the formation or organizational documents of Borrower and any Guarantor; and.


 


(g)          any
other event or condition causing a material adverse change in the financial condition of Borrower, any General Partner or any Guarantor,
in the condition of the Property or the ability of Borrower to construct the Improvements in accordance with the Construction Schedule,
the Budget or the Plans and Specifications.


 




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8.18       Expenses.
Borrower shall immediately pay each Lender and Administrative Agent upon demand all costs and expenses incurred by such Lender
or Administrative Agent in connection with: (a) preparation of this Agreement, all other Loan Documents; (b) the administration
of this Agreement, the other Loan Documents, and any other documents required by Lender (including in connection with any extension
of the Maturity Date); and (c) the enforcement or satisfaction by such Lender or Administrative Agent of any of Borrower’s
or Guarantor’s obligations under this Agreement, the Guaranty, or the other Loan Documents. For all purposes of this Agreement,
Lender’s and Administrative Agent’s costs and expenses shall include, without limitation, all appraisal fees, cost
engineering and inspection fees, legal fees and expenses, accounting fees, environmental consultant fees, auditor fees, recording
taxes, recording fees, filing fees, UCC filing fees and/or UCC vendor fees, flood certification vendor fees, tax service vendor
fees, and the cost to Lenders or Administrative Agent of any title insurance premiums, title surveys, mortgage registration taxes
(if applicable), release, reconveyance, satisfaction and notary fees. Borrower recognizes and agrees that formal written appraisals
of the Property by a licensed independent appraiser may be required by Lenders’ internal procedures on an annual and/or
specialized basis and that any Lender may, at its option, require inspection of the Property by an independent supervising architect
and/or cost engineering specialist (i) prior to each advance; (ii) at least once each month during the course of construction
even though no disbursement is to be made for that month; (iii) upon completion of the Improvements; and (iv) at least semi-annually
thereafter. If any of the services described above are provided by an employee of a Lender, Administrative Agent or its affiliates,
such Lender’s and/or Administrative Agent’s costs and expenses for such services shall be calculated in accordance
with such Lender’s or Administrative Agent’s standard charge for such services.


 


8.19       Erisa
Compliance. Borrower shall at all times comply with the provisions of the Employment Retirement Income Security Act
of 1974, as amended from time to time, including all regulations promulgated and case law thereunder, (“ERISA”) with
respect to any retirement or other employee benefit plan to which it is a party as employer, and as soon as possible after Borrower
knows, or has reason to know, that any Reportable Event (as defined in ERISA) with respect to any such plan of Borrower has occurred,
it shall furnish to Administrative Agent a written statement setting forth details as to such Reportable Event and the action,
if any, which Borrower proposes to take with respect thereto, together with a copy of the notice of such Reportable Event furnished
to the Pension Benefit Guaranty Corporation.


 


8.20       Transfer
And Further Encumbrance. Borrower shall not permit the Property and/or Improvements or any part thereof or any direct
or indirect, legal or beneficial interest therein to be Transferred (including, without limitation, through sale or transfer of
a majority or controlling interest of the corporate stock or partnership interests or membership interests of Borrower to any other
person, including any other member or partner), without the prior written consent of Lenders. Additionally, Borrower shall not
permit any Lien on the Property and/or Improvements or any part thereof other than liens created pursuant to the Loan Documents.


 


8.21       Taxes
And Other Liabilities. Borrower shall pay and discharge when due any and all indebtedness, obligations, assessments
and taxes, both real and personal, owed by or relating to Borrower and Borrower’s properties (including federal and state
income taxes), except such as Borrower may in good faith contest or as to which a bona fide dispute may arise, provided provision
is made to the satisfaction of Administrative Agent for eventual payment thereof in the event that it is found that the same is
an obligation of Borrower.


 




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8.22       Assignment.
Without the prior written consent of Lenders, Borrower shall not assign Borrower’s interest under any of the Loan Documents,
or in any monies due or to become due thereunder, and any assignment without such consent shall be void. In this regard, Borrower
acknowledges that Lenders would not make this Loan except in reliance on Borrower’s expertise, reputation, prior experience
in developing and constructing commercial real property, Lenders’ knowledge of Borrower, and Lenders understanding that this
Agreement is more in the nature of an agreement involving personal services than a standard loan where Lenders would rely on security
which already exists.


 


8.23       Hazardous
Materials Indemnity. Borrower hereby agrees to defend, indemnify and hold harmless Lenders, Administrative Agent and
their parents, subsidiaries and affiliates, any Participant and all of their affiliates, directors, employees agents and successors
and assigned (collectively, “Indemnitees”) for, from and against any and all losses, damages, liabilities, claims,
actions, judgments, court costs and legal or other expenses (including, without limitation, attorneys’ fees and expenses)
which Indemnitees may incur as a direct or indirect consequence of (a) the use, generation, manufacture, storage, treatment, release,
threatened release, discharge, disposal, transportation or presence of any Hazardous Materials which are found in, on, under, about
or migrating from the Property; (b) any violation or claim of violation of any Hazardous Materials Laws with respect to the Property;
(c) any indemnity claim by a third party against one or more Indemnitees in connection with any of the foregoing; or (d) the breach
of any covenants (or representations and warranties) of Borrower in Sections 6.18, 6.19 and 6.20. Such indemnity shall include,
without limitation: (i) the costs, whether foreseeable or unforeseeable, of any repair, cleanup or detoxification of the Property,
or the removal or remediation of any Hazardous Materials (regardless of the medium) from the Property, or the taking of any emergency
action, which is required by any governmental entity or is otherwise necessary to render the Property in compliance with all Hazardous
Materials Laws and regulations; (ii) all other direct or indirect consequential damages (including, without limitation, any third
party tort claims or governmental claims, fines or penalties against any and all Indemnitees); and (iii) all court costs and attorneys’
fees and expenses paid or incurred by any and all Indemnitees. Each Indemnitee shall have the right at any time to appear in, and
to participate in as a party if it so elects, and be represented by counsel of its own choice in, any action or proceeding initiated
in connection with any Hazardous Materials Laws that affect the Property. Borrower shall immediately pay to the applicable Indemnitees
upon demand any amounts owing under this indemnity, together with interest from the date the indebtedness arises until paid at
the rate of interest applicable to the principal balance of the Note.


 


8.24       Further
Assurances. Borrower shall execute and deliver from time to time, promptly after any request by Administrative Agent,
any instrument, agreement or document and shall take such other action as may be necessary or desirable in the opinion of Administrative
Agent to maintain, perfect or insure Lenders’ or Administrative Agent’s security provided for in this Agreement and
the other Loan Documents, including, without limitation, the execution of such amendments to the Deed of Trust and the other Loan
Documents and the delivery of such endorsements to the Title Policy, all as Administrative Agent shall reasonably require, and
shall pay all fees and expenses (including reasonable attorneys’ fees) incurred by Administrative Agent in connection with
such action.


 




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ARTICLE IX


EVENTS OF DEFAULT


 


9.1         Events
of Default. The occurrence of any of the following shall be an “Event of Default”:


 


(a)          Borrower’s
failure to pay when due any installment of principal or interest under the Note or any other sum required to be paid by the terms
of any Loan Document or secured by the Deed of Trust;


 


(b)          Borrower’s
failure to observe or perform its obligations under Section 2.5(a) of the Deed of Trust or to maintain the insurance required to
be maintained under Section 2.11 of the Deed of Trust, the occurrence of any “Transfer” (as defined in the Deed of
Trust) in violation of Section 2.14 of the Deed of Trust or the failure of Borrower to cooperate in making the Property available
for inspections under Section 8.11 above or “Tests and Studies” (as defined in the Deed of Trust) in violation of the
provisions of Section 2.16 of the Deed of Trust;


 


(c)          the
failure of Borrower, within 30 days following notice from Administrative Agent, to observe or perform any covenant or other agreement
contained in any Loan Document other than those covenants and agreements set forth in Sections 9.1(a) and (b) above; provided,
however, that the notice and 30-day grace period set forth above shall be applicable only to a failure to observe or perform any
covenant or other agreement which is reasonably susceptible of being cured; provided further, that should Borrower be unable to
cure its failure within such 30-day period despite beginning to cure such failure promptly after receipt of notice and prosecuting
such attempt diligently during such 30-day period, the cure period shall be extended an additional 30 days so long as Borrower
continues diligently to prosecute the cure during such additional period;


 


(d)          any
written representation, warranty or financial statement given by Borrower or any Guarantor shall have been untrue in any material
respect when given;


 


(e)          the
occurrence of a default under any of the Loan Documents and the failure of any such default to be cured during the permitted time,
if any, for such cure;


 


(f)          any
of Borrower or any Guarantor shall be unable, or shall admit in writing its inability, to pay its debts when due, or shall make
an assignment for the benefit of creditors; or any of them shall apply for or consent to the appointment of any receiver, trustee
or similar officer for such person or for all or any substantial part of such person’s property; or any of them shall institute
(by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement, readjustment
of debts, dissolution, liquidation, or similar proceedings relating to such person under the laws of any jurisdiction;


 




    	 	35	 



     


    

 


(g)          if
a receiver, trustee or similar officer shall be appointed for any of Borrower, or any Guarantor, or for all or any substantial
part of any such person’s property without the application or consent of such person, and such appointment shall continue
undischarged for a period of 60 days (whether or not consecutive); or any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceedings shall be instituted (by petition, application or otherwise)
against any such person and shall remain undismissed for a period of 60 days (whether or not consecutive);


 


(h)          the
Property or all or any material part of the assets of Borrower, or any Guarantor shall become subject to attachment, execution
or judicial seizure (whether by enforcement of money judgment, by writ or warrant of attachment, or by any other process);


 


(i)           Borrower
shall be in default in the payment of any indebtedness or the performance of any other obligation secured by a lien on the Property
and such default is declared and is not cured within the time, if any, specified for such a cure in any applicable agreement;


 


(j)           any of the Loan Documents shall cease to be a valid, binding and enforceable obligation of the person purported to be bound; or
the lien of the Deed of Trust or any Loan Document securing any of Borrower’s obligations shall cease to be a valid, enforceable,
perfected and first-priority lien on the property it purports to encumber; or Borrower shall assert such cessation or failure in
writing;


 


(k)          Borrower
is enjoined, restrained or in any way prevented by court order from constructing the Improvements or continuing with the development
of the Property or otherwise conducting all or a substantial portion of its business, and such proceedings or injunction have not
been dismissed or stayed within 60 days from the date of filing of such proceeding or entry of such injunction;


 


(l)          
the occurrence of a default under the Environmental Indemnity and the failure of any such default to be cured during the permitted
time, if any, for such cure;


 


(m)         the occurrence of a default under the Guaranty and the failure of any such default to be cured during the permitted time, if any,
for such cure;


 


(n)          Administrative Agent’s determination that construction of the Improvements has fallen more than 60 days behind the Construction
Schedule and such construction has not been rescheduled in a manner acceptable to Administrative Agent within ten days after Administrative
Agent’s determination, unless such construction shall have fallen behind schedule for reasons solely beyond Borrower’s
control, in which case Borrower shall resume work immediately after the reason for such cessation shall have terminated; provided,
however, under no circumstances shall any delay result in the extension of the Maturity Date or shall construction fall more than
90 days behind the Construction Schedule, irrespective of the cause of such delay; or


 


(o)          the
death or a material adverse change in the financial condition of any Guarantor.


 




    	 	36	 



     


    

 


9.2         Acceleration.
Upon the occurrence of an Event of Default, Requisite Lenders may, at their sole option, declare all sums owing to Lenders under
the Notes, this Agreement and the other Loan Documents immediately due and payable. Upon such acceleration, Administrative Agent
may, in addition to all other remedies permitted under this Agreement and the other Loan Documents and at law or equity, apply
any sums in the Account and Borrower’s Funds Account to the sums owing under the Loan Documents and any and all obligations
of Lenders to fund further disbursements under the Loan shall terminate and Lenders and Administrative Agent’s shall have
such rights of enforcement as may be afforded under this Agreement, any of the other Loan Documents or under applicable law.


 


9.3         Right
to Complete Construction. In addition to the rights set forth in Section 9.2, upon the occurrence of an Event of Default,
Administrative Agent shall have the right to enter into possession of the Property and perform any work necessary to complete the
Improvements substantially in accordance with the Plans and Specifications, and employ watchmen to protect the Property and Improvements
from injury. All sums so expended by Administrative Agent shall be deemed to have been paid to Borrower and secured by the Deed
of Trust. Effective upon such an Event of Default, Borrower assigns to Administrative Agent all of Borrower’s interest in
all Contracts, but this assignment shall not, in the absence of an affirmative written assumption of such Contracts by Administrative
Agent, be deemed to impose upon Administrative Agent any of Borrower’s obligations under any such Contract. Borrower constitutes
and appoints Administrative Agent its true and lawful attorney-in-fact, with full power of substitution, to complete the Improvements
in the name of Borrower. Borrower empowers such attorney to (a) use any funds of Borrower, including any funds which may remain
undisbursed under this Agreement, for the purpose of completing the Improvements; (b) make such additions, changes, and corrections
in the Plans and Specifications as Administrative Agent deems desirable to complete the Improvements in an economically sound manner;
(c) employ such contractors, subcontractors, agents, architects, and inspectors as shall be required for said purposes; (d) pay,
settle, or compromise all existing bills and claims which may be liens against the Property or Improvements, or as may be necessary
or desirable for the completion of the Improvements or for clearance of title; (e) execute all applications and certificates in
the name of Borrower which may be required by any of the contract documents; (f) prosecute and defend all actions or proceedings
in connection with the Property or the construction of the Improvements and take such action and require such performance as Borrower
deems necessary under any guaranty of completion; and (g) do any and every act which Borrower might do in its own behalf. This
power of attorney, which shall be deemed to be a power coupled with an interest, cannot be revoked. Borrower assigns and quitclaims
to Administrative Agent all sums undisbursed under the Loan effective as of the date of any Event of Default.


 


9.4         Right
to Advance or Post Funds. Where disputes have arisen which, in the good faith opinion of Administrative Agent, may endanger
the timely completion of the Improvements or the performance of any covenant contained in this Agreement, Administrative Agent
may advance Lender’s funds for the account of Borrower without prejudice to Borrower’s rights, if any, to recover such
funds from the party to whom paid. Such agreement or agreements may take the form which Administrative Agent, in its discretion,
deems proper, including but not limited to agreements to indemnify a title insurer against possible assertion of lien claims or
to pay disputed amounts to contractors if Borrower is unable or unwilling to pay the same. All sums paid or agreed to be paid pursuant
to any such undertaking shall be for the account of Borrower, Borrower shall upon Administrative Agent’s demand reimburse
Administrative Agent for any such payments with interest at the rate then applicable under the Note until date of reimbursement,
and such advances and interest shall be secured by the Deed of Trust.


 




    	 	37	 



     


    

 


9.5         Stoppage
of Construction by Administrative Agent. Where any deviations from the Plans and Specifications appear (other than
those approved by Administrative Agent in accordance with the terms of this Agreement), or defective or unworkmanlike labor or
materials are being used in the construction of the Improvements, or upon receipt of knowledge of encroachments to which there
has been no consent, Administrative Agent shall have, in addition to any other remedies hereunder, the right to immediately order
the cessation of construction and demand that the condition be corrected. After issuance of such an order, no further work shall
be done on the Improvements without the prior written consent of Administrative Agent, which such consent shall not be unreasonably
withheld if the condition has been corrected to Lender’s satisfaction. If corrective action satisfactory to Administrative
Agent is not commenced within five days after written demand by Administrative Agent, Administrative Agent shall have the right,
but not the obligation, to undertake such action at Borrower’s expense in the manner described in Section 9.6 below.


 


9.6         Curing
of Defaults by Disbursement. Upon the occurrence of an Event of Default which may be cured by the payment of money,
Administrative Agent, without waiving any right of acceleration or foreclosure under the Note or the Deed of Trust which Lenders
may have by reason of such Event of Default, or any other right Lender may have against Borrower because of such default, shall
have the right to make such payment from the Loan, thereby curing such Event of Default.


 


9.7         Remedies
are Cumulative. All remedies of Lenders and Administrative Agent provided for in this Agreement are cumulative and shall
be in addition to any other rights and remedies provided in the Note, the Deed of Trust or any of the other Loan Documents or by
law. The exercise of any rights of Lenders or Administrative Agent under this Agreement shall not in any way constitute a cure
or waiver of a default under this Agreement or elsewhere, or invalidate any act done pursuant to any notice of default, or prejudice
Lenders or Administrative Agent in the exercise of any of their other rights unless, in the exercise of such rights, Lenders realizes
all amounts owed to them under this Agreement and under the Note, the Deed of Trust and the other Loan Documents.


 




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ARTICLE X


LOAN SALES AND PARTICIPATION; DISCLOSURE
OF INFORMATION


 


Borrower
agrees that Lender may elect, at any time, to sell, assign or grant participation in all or any portion of Lender’s rights
and obligations under the Loan Documents, and that any such sale, assignment or participation may be to one or more financial institutions,
private investors, and/or other entities (“Participant”), at Lender’s sole discretion. Borrower further agrees
that Lender may disseminate to any such actual or potential purchaser(s), assignee(s) or participant(s) all documents and information
(including, without limitation, all financial information) which has been or is hereafter provided to or known to Lender with respect
to: (a) the Property and Improvements and their operation; (b) any party connected with the Loan (including, without limitation,
the Borrower, any partner, shareholder, joint venturer, manager or member of Borrower, any constituent partner, shareholder, joint
venturer, manager or member of Borrower, any Guarantor,); and/or (c) any lending relationship other than the Loan which Lender
may have with any party connected with the Loan. In the event of any such sale, assignment or participation, Lender and the parties
to such transaction shall share in the rights and obligations of Lender as set forth in the Loan Documents only as and to the extent
they agree among themselves. In connection with any such sale, assignment or participation, Borrower further agrees that the Loan
Documents shall be sufficient evidence of the obligations of Borrower to each purchaser, assignee, or participant, and upon written
request by Lender, Borrower shall enter into such amendments or modifications to the Loan Documents as may be reasonably required
in order to evidence any such sale, assignment or participation. The indemnity obligations of Borrower under the Loan Documents
shall also apply with respect to any purchaser, assignee or participant.


 


ARTICLE XI


MISCELLANEOUS


 


11.1       Notices.
Any notice, demand or request required under this Agreement shall be given in writing at the addresses set forth below by personal
service; email; telecopy; overnight courier; or registered or certified, first class mail, return receipt requested.


 


If
to Borrower:


 


Fremont
Hills Development Corporation


2051
Junction Ave., Suite 230


San
Jose, CA 95131


Email:
jryu@heliosreg.com


 


If
to Administrative Agent:


 


Parkview
Financial Fund 2015, LP


c/o
Parkview Financial Fund GP, Inc.


12400
Wilshire Boulevard, Suite 350


Los
Angeles, CA 90025


Attention:
Paul S. Rahimian


Email:
Paul@ParkviewLoan.com


Fax
No.: (310) 996-8902


 


If
to Lender:


 


Parkview
Financial Fund 2015, LP


c/o
Parkview Financial Fund GP, Inc.


12400
Wilshire Boulevard, Suite 350


Los
Angeles, CA 90025


Attention:
Paul S. Rahimian


Email:
Paul@ParkviewLoan.com


Fax
No.: (310) 996-8902


 




    	 	39	 



     


    

 


Such addresses
may be changed by notice to the other parties given in the same manner as required above. Any notice, demand or request shall be
deemed received as follows: (i) if sent by personal service, at the time such personal service is effected; (ii) if sent by telecopy,
upon the sender’s receipt of a confirmation report generated by the sender’s telecopier indicating receipt by the recipient’s
telecopier; (iii) if sent by overnight courier, on the business day immediately following deposit with the overnight courier; and
(iv) if sent by mail, 48 hours following deposit in the mail.


 


To the extent
prepayment of the Loan is permitted under the Loan Documents, the Loan and all monetary obligations due under the Note, and any
other Loan Documents, may be prepaid by Borrower upon twenty-one (21) days’ notice by Borrower to Administrative Agent, and
after written request for a beneficiary demand statement pursuant to Civil Code section 2943.


 


11.2       Governing
Law. All questions with respect to the construction of this Agreement and the rights and liabilities of the parties
to this Agreement shall be governed by the laws of the State of California.


 


11.3       Binding
on Successors. This Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of
each of the parties to this Agreement.


 


11.4      
Attorneys’ Fees.


 


(a)          Borrower
shall reimburse Lenders and Administrative Agent for all reasonable attorneys’ fees, costs and expenses (including those
of Lender’s and Administrative Agent’s in-house counsel), incurred by any Lender or Administrative Agent in connection
with the enforcement of Lenders’ rights under this Agreement and each of the other Loan Documents, including, without limitation,
reasonable attorneys’ fees, costs and expenses for trial, appellate proceedings, out-of-court negotiations, workouts and
settlements or for enforcement of rights under any state or federal statute, including, without limitation, reasonable attorneys’
fees, costs and expenses incurred to protect Lenders’ security and attorneys’ fees, costs and expenses incurred in
bankruptcy and insolvency proceedings such as (but not limited to) seeking relief from stay in a bankruptcy proceeding. The term
“expenses” means any expenses incurred by any Lender or Administrative Agent in connection with any of the out-of-court,
or state, federal or bankruptcy proceedings referred to above, including, without limitation, the fees and expenses of any appraisers,
consultants and expert witnesses retained or consulted by any Lender or Administrative Agent in connection with any such proceeding.


 


(b)          Each
Lender and Administrative Agent shall also be entitled to its attorneys’ fees, costs and expenses incurred in any post-judgment
proceedings to collect and enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement
into any judgment on this Agreement.


 


11.5       Counterparts.
This Agreement may be executed in any number of original counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one instrument. The original signature page of any counterpart may be detached from such counterpart
and attached to any other counterpart identical to such counterpart (except having additional signature pages executed by other
parties to this Agreement) without impairing the legal effect of any such signature(s).


 




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11.6       Entire
Agreement. This Agreement and the other Loan Documents constitutes the entire agreement and understanding between and
among the parties in respect of the subject matter of this Agreement and supersedes all prior agreements and understandings with
respect to such subject matter, whether oral or written.


 


11.7       Waivers.
Waiver by any Lender or Administrative Agent of any term, covenant or condition under this Agreement or the Loan Documents, or
of any default by Borrower under this Agreement or the Loan Documents, or any failure by any Lender or Administrative Agent to
insist upon strict performance by Borrower of any term, covenant or condition contained in this Agreement or the Loan Documents,
shall be effective or binding on such Lender or Administrative Agent only if made in writing by such Lender or Administrative Agent;
no such wavier shall be implied from any omission by any Lender or Administrative Agent to take action with respect to any such
term, covenant, condition or default. No express written waiver by any Lender or Administrative Agent of any term, covenant, condition
or default shall affect any other term, covenant, condition or default or cover any other time period than the application of any
such term, covenant or condition to the matter as to which a waiver has been given or the default or time period specified in such
express waiver. This Agreement may be amended only by an instrument in writing signed by the parties to this Agreement.


 


11.8      
Severability. If any part of this
Agreement is declared invalid for any reason, such shall not affect the validity of the rest of the Agreement. The other parts
of this Agreement shall remain in effect as if this Agreement had been executed without the invalid part. The parties declare that
they intend and desire that the remaining parts of this Agreement continue to be effective without any part or parts that have
been declared invalid.


 


11.9       Relationship;
Indemnity: No Third Parties Beneficiaries.


 


(a)          The
relationship of Borrower and Lenders and Administrative Agent under the Loan Documents is, and shall at all times remain, solely
that of borrower and lender; and Administrative Agent and Lenders neither undertake nor assume any responsibility or duty to Borrower
or to any third party with respect to the Property or the construction of the Improvements. Notwithstanding any other provision
of the Loan Documents: (i) No Lender or Administrative Agent is, and shall not be construed as, a partner, joint venturer, alter-ego,
manager, controlling person or other business associate or participant of any kind of Borrower and no Lender nor Administrative
Agent intends to ever assume such status; (ii) Lenders’ activities in connection with the Loan Documents shall not be “outside
the scope of the activities of a lender of money” within the meaning of California Civil Code Section 3434, as amended or
recodified from time to time, and Lender does not intend to ever assume any responsibility to any person for the quality, suitability,
safety or condition of the Property or the Improvements; and (iii) no Lender or Administrative Agent shall be deemed responsible
for or a participant in any acts, omissions or decisions of Borrower. No Lender or Administrative Agent shall be directly or indirectly
liable or responsible for any loss, claim, cause of action, liability, indebtedness, damage or injury of any kind or character
to any person or property arising from any construction on, or occupancy or use of, any of the Property, whether caused by or arising
from: (i) any defect in any building, structure, grading, fill, landscaping or other improvements on the Property or in any on-site
or off-site improvement or other facility therein or thereon; (ii) any act or omission of Borrower or any of Borrower’s agents,
employees, independent contractors, licensees or invitees; (iii) any accident on or about the Property or any fire, flood or other
casualty or hazard thereon unless such event shall occur after Lenders have completed a foreclosure on the Property and neither
Borrower nor any affiliate of Borrower is the then owner, either legal or beneficial, of the Property and no act or omission of
Borrower shall in any way be related to such event; (iv) the failure of Borrower, any of Borrower’s licensees, employees,
invitees, agents, independent contractors or other representatives to maintain the Property in a safe condition; and (v) any nuisance
made or suffered on any part of the Property unless such event shall occur after Lenders have completed a foreclosure on the Property
and neither Borrower nor any affiliate of Borrower is the then owner, either legal or beneficial, of the Property and no act or
omission of Borrower shall in any way be related to such event.


 




    	 	41	 



     


    

 


(b)          Borrower
indemnifies and agrees to hold Lenders and Administrative Agent harmless from any damages resulting from any construction of the
relationship of the parties to this Agreement other than as set forth above due to the actions, admissions or statements of Borrower.
No Lender or Administrative Agent is under any obligation to supervise, inspect or inform Borrower or any third party of any aspect
of the work of construction or any other matter referred to in this Agreement. Any inspection or review made by any Lender or Administrative
Agent is made for the purpose of determining whether or not the obligations of Borrower under this Agreement are being properly
discharged; and neither Borrower nor any third party shall be entitled to rely upon any such inspection or review.


 


(c)          This
Agreement is made and entered into for the sole protection and benefit of Lenders, Administrative Agent and Borrower. All conditions
of the obligations of Lenders to make advances under this Agreement are imposed solely and exclusively for the benefit of Lenders
and may be freely modified by Lenders with the concurrence of Borrower or waived by Lenders in whole or in part at any time if
in its sole discretion it deems it advisable to do so. No person other than Borrower shall have standing to require any Lender
to make any Loan advances or to be a beneficiary of this Agreement or of any of the advances to be made under this Agreement.


 


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


 




    	 	42	 



     


    

 


11.11     Judicial
Reference. Any and all disputes, claims and controversies arising out of the Loan Documents or the transactions contemplated
thereby (including, but not limited to, actions arising in contract or tort and any claims by a Party against any Lender or Administrative
Agent related in any way to the Loan Documents) (individually, a “Dispute”) shall be heard by a referee and resolved
by judicial reference pursuant to California Code of Civil Procedure Sections 638 et seq.


 


The
referee shall be a retired California state court judge or an attorney licensed to practice law in the State of California with
at least ten (10) years’ experience practicing commercial law. The Parties shall not seek to appoint a referee that may be
disqualified pursuant to California Code of Civil Procedure Section 641 or 641.2 without the prior written consent of all Parties.
If the Parties are unable to agree upon a referee within ten (10) calendar days after one Party serves a written notice of intent
for judicial reference upon the other Party or Parties, then the referee will be selected by the court in accordance with California
Code of Civil Procedure Section 640(b). The referee shall render a written statement of decision and shall conduct the proceedings
in accordance with the California Code of Civil Procedure, the Rules of Court, and California Evidence Code, except as otherwise
specifically agreed by the parties and approved by the referee. The referee’s statement of decision shall set forth findings
of fact and conclusions of law. The decision of the referee shall be entered as a judgment in the court in accordance with the
provisions of California Code of Civil Procedure Sections 644 and 645. The decision of the referee shall be appealable to the same
extent and in the same manner that such decision would be appealable if rendered by a judge of the superior court.


 


Nothing
in this Agreement shall be deemed to apply to or limit the right of Lenders (a) to exercise self-help remedies such as (but not
limited to) setoff, or (b) to foreclose judicially or nonjudicially against any real or personal property collateral, or to exercise
judicial or nonjudicial power of sale rights, (c) to obtain from a court provisional or ancillary remedies (including, but not
limited to, injunctive relief, a writ of possession, prejudgment attachment, a protective order or the appointment of a receiver),
or (d) to pursue rights against a Party in a third-party proceeding in any action brought against any Lender (including actions
in Bankruptcy court). Lenders may exercise the rights set forth in the foregoing clauses (a) through (d), inclusive, before, during
or after the pendency of any judicial reference proceeding. Neither the exercise of self-help remedies nor the institution or maintenance
of an action for foreclosure or provisional or ancillary remedies or the opposition to any such provisional remedies shall constitute
a waiver of the right of any Party, including, but not limited to, the claimant in any such action, to require submission to judicial
reference the merits of the Dispute occasioning resort to such remedies.


 


If
a Dispute includes multiple claims, some of which are found not subject to this Agreement, the Parties shall stay the proceedings
of the Disputes or part or parts thereof not subject to this Agreement until all other Disputes or parts thereof are resolved in
accordance with this Agreement. If there are Disputes by or against multiple parties, some of which are not subject to this Agreement,
the Parties shall sever the Disputes subject to this Agreement and resolve them in accordance with this Agreement.


 




    	 	43	 



     


    

 


During
the pendency of any Dispute which is submitted to judicial reference in accordance with this Agreement, each of the Parties to
such Dispute shall bear equal shares of the fees charged and costs incurred by the referee in performing the services described
in this Agreement. The compensation of the referee shall not exceed the prevailing rate for like services. The prevailing party
shall be entitled to reasonable court costs and legal fees, including customary attorney fees, expert witness fees, paralegal fees,
the fees of the referee and other reasonable costs and disbursements charged to the party by its counsel, in such amount as is
determined by the referee.


 


THIS
SECTION 11.11 CONSTITUTES A “REFERENCE AGREEMENT” BETWEEN OR AMONG THE PARTIES WITHIN THE MEANING OF AND FOR PURPOSES
OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638.


 


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


 


11.13     Delay
Outside Lenders’ Control. Lenders shall not be liable in any way to Borrower or any third party for Lenders’
failure to perform or delay in performing under the Loan Documents (and any Lender may suspend or terminate all or any portion
of such Lender’s obligations under the Loan Documents) if such failure to perform or delay in performing results directly
or indirectly from, or is based upon, the action, inaction, or purported action, of any governmental or local authority, or because
of war, rebellion, insurrection, strike, lock-out, boycott or blockade (whether presently in effect, announced or in the sole judgment
of Lender deemed probable), or from any Act of God or other cause or event beyond such Lender’s control.


 


11.14     Authority
to File Notices. Borrower irrevocably appoints, designates, and authorizes Administrative Agent as its agent (such agency
being coupled with an interest) to file for record any notices of completion, cessation of labor, or any other notice that Lender
deems necessary or desirable to protect its interest under this Agreement or under the Note, the Deed of Trust or any of the other
Loan Documents.


 


11.15     Commissions
and Brokerage Fee. The Loan has been negotiated and arranged by UCC United Capital Companies, Inc. a licensed real estate
broker, BRE License # 01942640 for compensation paid by Borrower. Borrower shall indemnify Lenders and Administrative Agent from
any responsibility and/or liability for the payment of any commission, charge or brokerage fees to anyone which may be payable
in connection with the making, purchase or refinance of the Loan, it being understood that any such commission, charge, or brokerage
fees will be paid directly by Borrower to the party or parties entitled thereto.


 




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ARTICLE XII


AGENT AND LENDERS


 


12.1       Appointment
and Authorization.


 


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


 


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


 


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


 


D.           The
Administrative Agent shall deliver to each Lender, promptly upon receipt thereof by the Administrative Agent, copies of each of
the financial statements, certificates, notices and other documents delivered to the Administrative Agent pursuant to Article VIII.
The Administrative Agent will also furnish to any Lender, upon the request of such Lender, a copy (or, where appropriate, an original)
of any document, instrument, agreement, certificate or notice furnished to the Administrative Agent by the Borrower, any Guarantor
or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such Lender
pursuant to the terms of this Agreement or any such other Loan Document.


 




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


 


F.           Each
Lender authorizes Administrative Agent to: (i) administer, disburse, collect, manage and service the Loan and the Collateral; (ii)
negotiate, administer, manage and otherwise deal with the Borrower or any Guarantor, or both; (iii) execute any amendments or modifications
of any Loan Document; (iv) to acquire additional security for the Loan; (v) pay all costs reasonably incurred by the Participant;
(vi) make all decisions under the Loan Documents in connection with the day-to-day administration of the Loan, inspections, and
other routine administration, monitoring and servicing matters; (vii) incur Administrative Costs; (viii) make Protective Advances;
(ix) collect and receive from Borrower or any third persons all Loan Recoveries; (x) execute consents and joinders to plats, easements,
covenants, conditions and restrictions which Administrative Agent deems necessary or desirable; (xi) collect and disburse all amounts
held at any time in escrow or otherwise for the payment of taxes and insurance; (xii) fulfill the obligations of lender under the
Loan Documents; (xiii) exercise all powers, rights and remedies and to take all actions with respect to the Loan, including, without
limitation, all communications with Borrower; and (xiv) to exercise all such powers as are incidental to any of the foregoing matters.
The powers granted to Administrative Agent as enumerated in this Section 12. IF are subject to the limitations requiring consent
of Requisite Lenders as set forth in Section 13.2.


 


12.2       Parkview
Financial Fund 2015. LP as Lender.


 


Parkview
Financial Fund 2015, LP, as a Lender, shall have the same rights and powers under this Agreement and any other Loan Document as
any other Lender and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated, include Housing Capital Company in each case in its individual
capacity. Parkview Financial Fund 2015, LP and its affiliates may each accept deposits from, maintain deposits or credit balances
for, invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and generally engage in any kind
of business with the Borrower, any other Guarantor or any other affiliate thereof as if it were any other bank and without any
duty to account therefor to the other Lenders. Further, the Administrative Agent and any affiliate may accept fees and other consideration
from the Borrower for services in connection with this Agreement and otherwise without having to account for the same to the other
Lenders. The Lenders acknowledge that, pursuant to such activities, Parkview Financial Fund 2015, LP or its affiliates may receive
information regarding the Borrower, other loan parties, other subsidiaries and other Affiliates (including information that may
be subject to confidentiality obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them.


 




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12.3       Loan
Disbursements.


 


A.           Following
receipt of a complete application for disbursement, Administrative Agent shall, by telephone or email, advise each Lender of the
amount of the disbursement requested at least five (5) Business Days prior to the date of such disbursement. Each Lender shall
make available to Administrative Agent (or the funding bank or entity designated by Administrative Agent), the amount of such Lender’s
Pro Rata Share of such disbursement in immediately available funds not later than not later than 2:00 p.m., California time, on
the date of the Advance set forth in the notice (each, a “Funding Date”). Any amounts received by Administrative Agent
after 2:00 p.m., California time, shall be deemed to have been received on the following Business Day. As used herein, a Business
Day is any day which is not a Saturday, Sunday or a bank or public holiday in either the United States or Canada. Unless Administrative
Agent shall have been notified by any Lender not later than the close of business (Los Angeles time) on the Business Day immediately
preceding the Funding Date in respect of any disbursement that such Lender does not intend to make available to Administrative
Agent such Lender’s Pro Rata Share of such disbursement, Administrative Agent may assume that such Lender shall make such
amount available to Administrative Agent. If any Lender does not notify Administrative Agent of its intention not to make available
its Pro Rata Share of such disbursement as described above, but does not for any reason make available to Administrative Agent
such Lender’s Pro Rata Share of such disbursement, such Lender shall pay to Administrative Agent forthwith on demand such
amount, together with interest thereon at the Federal Funds Rate. In any case where a Lender does not for any reason make available
to Administrative Agent such Lender’s Pro Rata Share of such disbursement, Administrative Agent, in its sole discretion,
may, but shall not be obligated to, fund to Borrower such Lender’s Pro Rata Share of such disbursement. If Administrative
Agent funds to Borrower such Lender’s Pro Rata Share of such disbursement and if such Lender subsequently pays to Administrative
Agent such corresponding amount, such amount so paid shall constitute such Lender’s Pro Rata Share of such disbursement.
Nothing in this Section 12.3.A shall alter the respective rights and obligations of the parties hereunder in respect of a Defaulting
Lender or a Non-Pro Rata Advance.


 


C.           In
addition to the obligations of the Lenders pursuant to Section 12.13.A, following a request for disbursement by any Obligee or
Surety under any Set-Aside Letter, Administrative Agent shall promptly notify each other Lender by telephone (confirmed promptly
by facsimile transmission), or by facsimile transmission of the amount of the Set-Aside Draw; and (ii) each Lender shall, not later
than 2:00 p. m. (Los Angeles time) on the next Business Day following such notice, pay to Administrative Agent, to such bank and
account as Administrative Agent may designate, in immediately available funds, such Lender’s Pro Rata Share of such Set-
Aside Draw. Upon such funding, each Lender shall be deemed to have acquired from Administrative Agent (and Administrative Agent
shall be deemed to have assigned to each such Lender) a percentage interest in such Set-Aside Draw equal to such Lender’s
Pro Rata Share thereof, and such Set-Aside Draw shall be deemed a disbursement under the Loan; provided that the obligations of
the Lenders under this Section 12.3.C shall not be subject to the notice or amount requirements, or to satisfaction of conditions
precedent, otherwise applicable to the making of disbursements, and Administrative Agent shall determine in its sole and absolute
discretion the appropriate amount to be disbursed to such Obligee or Surety from time to time under the terms of any Set-Aside
Letter. Each Lender’s obligation to fund, and to purchase from Administrative Agent, its Pro Rata Share of a Set-Aside Draw
pursuant to this Section 12.3.C shall be absolute and unconditional under any and all circumstances (including, without limitation,
irrespective of any intervening bankruptcy of Borrower or acceleration of the Loan). It is not the parties’ intent that the
obligations of the Lenders under this Section 12.3.C constitute guaranties or obligations of suretyship. If and to the extent,
however, that the obligations of any Lender under this Section 12.3.C are determined to be those of a guarantor or surety, such
Lender, with full knowledge of the consequences thereof, hereby expressly waives the benefit of each and every right or defense
of a guarantor or surety the effect of which would relieve such Lender of all or any portion of its obligations under this Section
12.3.C. In the event that any Lender fails to pay to Administrative Agent when due any amount it is required to fund under this
Section 12.3.C, such Lender agrees to pay to Administrative Agent, on demand, the amount such Lender has failed to so pay, together
with interest thereon for each day from the date on which such payment was due until the date such amount is repaid to Administrative
Agent, at the Alternate Rate.


 




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D.           Nothing
in this Section 12.3 shall be deemed to relieve any Lender of its obligation hereunder to make its Pro Rata Share of disbursements
on any Funding Date (including without limitation any obligations pursuant to Section 12.3.C hereunder), nor shall Administrative
Agent or any Lender be responsible for the failure of any other Lender to perform its obligations to make any disbursement hereunder,
and the Commitment of any Lender shall not be increased or decreased as a result of the failure by any other Lender to perform
its obligation to make a disbursement.


 


12.4       Distribution
and Apportionment of Payments: Defaulting Lenders.


 


A.           Subject
to Section 12.4.B below, payments actually received by Administrative Agent for the account of Lenders shall be paid to them promptly
after receipt thereof by Administrative Agent, but in any event within five (5) Business Days. All payments of principal, interest,
and other payments under the Loan Documents or Guaranty shall be allocated among such of Lenders as are entitled thereto, in proportion
to their respective Pro Rata Shares in the Loan or otherwise as provided herein or as separately agreed by Administrative Agent
and any Lender. Administrative Agent shall promptly distribute, but in any event within two (2) Business Days, to each Lender at
its primary address set forth on the appropriate signature page hereof or on the Assignment and Assumption Agreement, or at such
other address as a Lender may request in writing, such funds as it may be entitled to receive, provided that Administrative Agent
shall in any event not be bound to inquire into or determine the validity, scope or priority of any interest or entitlement of
any Lender and may suspend all payments and seek appropriate relief (including, without limitation, instructions from Requisite
Lenders or all Lenders, as applicable, or an action in the nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby. The order of priority herein is set forth solely to determine the rights and
priorities of Lenders as among themselves and may at any time or from time to time be changed by Lenders as they may elect, in
writing in accordance with this Agreement, without necessity of notice to or consent of or approval by Borrower or any other Person.
All payments or other sums received by Administrative Agent for the account of Lenders shall not constitute property or assets
of the Administrative Agent and shall be held by Administrative Agent, solely in its capacity as agent for itself and the other
Lenders, subject to the Loan Documents and the Other Related Documents.


 




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B.           Notwithstanding
any provision hereof to the contrary, until such time as a Defaulting Lender has funded its Pro Rata Share of a Protective Advance
or prior Loan disbursements which was previously a Non-Pro Rata Advance, or all other Lenders have received payment in full (whether
by repayment or prepayment) of the amounts due in respect of such Non-Pro Rata Advance, all of the indebtedness and obligations
owing to such Defaulting Lender hereunder shall be subordinated in right of payment, as provided in the following sentence, to
the prior payment in full of all principal, interest and fees in respect of all Non-Pro Rata Advances in which the Defaulting Lender
has not funded its Pro Rata Share (such principal, interest and fees being referred to as “Senior Loans”). All amounts
paid by Borrower and otherwise due to be applied to the indebtedness and obligations owing to the Defaulting Lender pursuant to
the terms hereof shall be distributed by Administrative Agent to the other Lenders in accordance with their respective Pro Rata
Shares of the Loan (recalculated for purposes hereof to exclude the Defaulting Lender’s Pro Rata Share of the Loan), until
all Senior Loans have been paid in full. This provision governs only the relationship among Administrative Agent, each Defaulting
Lender, and the other Lenders; nothing hereunder shall limit the obligations of Borrower under this Agreement. The provisions of
this Section 12.4.B shall apply and be effective regardless of whether a Default occurs and is then continuing, and notwithstanding
(a) any other provision of this Agreement to the contrary, (b) any instruction of Borrower as to its desired application of payments
or (c) the suspension of such Defaulting Lender’s right to vote on matters which are subject to the consent or approval of
Requisite Lenders or all Lenders. Administrative Agent shall be entitled to (i) withhold or setoff, and to apply to the payment
of the defaulted amount and any related interest, any amounts to be paid to such Defaulting Lender under this Agreement, and (ii)
bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. In addition, the Defaulting Lender shall indemnify, defend and hold Administrative Agent and each of the
other Lenders harmless from and against any and all liabilities and costs, plus interest thereon at the Default Rate as set forth
in the Notes, which they may sustain or incur by reason of or as a direct consequence of the Defaulting Lender’s failure
or refusal to perform its obligations under this Agreement.


 


12.5       Pro
Rata Treatment.


 


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


 




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12.6       Sharing
Of Payments Etc.. Lenders agree among themselves that (i) with respect to all amounts received by them which are applicable
to the payment of the obligations of Borrower or Guarantors under the Loan, equitable adjustment will be made so that, in effect,
all such amounts will be shared among them ratably in accordance with their Pro Rata Shares in the Loan, whether received by voluntary
payment, by counterclaim or cross action or by the enforcement of any or all of such obligations, (ii) if any of them shall by
voluntary payment or by the exercise of any right of counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of such obligations held by it which is greater than its Pro Rata Share in the Loan of the payments on account of such obligations,
the one receiving such excess payment shall purchase, without recourse or warranty, an undivided interest and participation (which
it shall be deemed to have done simultaneously upon the receipt of such payment) in such obligations owed to the others so that
all such recoveries with respect to such obligations shall be applied ratably in accordance with such Pro Rata Shares; provided,
that if all or part of such excess payment received by the purchasing party is thereafter recovered from it, those purchases shall
be rescinded and the purchase prices paid for such participations shall be returned to that party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing party is required to pay interest in connection with
such recovery. Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 12.6
may, to the fullest extent permitted by law, exercise all its rights of payment with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such participation.


 


12.7       Collateral
Matters: Protective Advances.


 


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


 


B.           The
Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held
by the Administrative Agent upon any of the Property and Improvements (i) upon termination of the Commitments and indefeasible
payment and satisfaction in full of all of obligations of Borrower hereunder; (ii) as expressly permitted by, but only in accordance
with, the terms of the applicable Loan Document; and (iii) if approved, authorized or ratified in writing by the Requisite Lenders
(or such greater number of Lenders as this Agreement or any other Loan Document may expressly provide). Upon request by the Administrative
Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or
items of Collateral pursuant to this Section 12.7.


 




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


 


D.           The
Administrative Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists
or any other Loan Party or is cared for, protected or insured or that the liens granted to the Administrative Agent herein or pursuant
hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular
priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any
of the rights, authorities and powers granted or available to the Administrative Agent in this Section 12.7.D or in any of the
Loan Documents or Guarantors, it being understood and agreed that in respect of the Collateral, or any act, omission or event related
thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the Administrative
Agent’s own interest in the Collateral as one of the Lenders and that the Administrative Agent shall have no duty or liability
whatsoever to the Lenders, except to the extent resulting from its gross negligence or willful misconduct.


 


E.           The
Administrative Agent may make, and shall be reimbursed by the Lenders (in accordance with their Pro Rata Shares) to the extent
not reimbursed by the Borrower for, Protective Advances during any one calendar month with respect to any Property that is Collateral
up to the sum of (i) amounts expended to pay real estate taxes, assessments and governmental charges or levies imposed upon such
Property; (ii) amounts expended to pay insurance premiums for policies of insurance related to such Property; and (iii) $5,000.
Protective Advances in excess of said sum during any calendar month for any Property that is Collateral shall require the consent
of the Requisite Lenders. The Borrower agrees to pay on demand all Protective Advances.


 


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


 




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


 




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


 


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


 


12.11     Administrative
Agent’s Reliance Etc. Notwithstanding any other provisions of this Agreement, any other Loan Documents or the
Guaranty, neither the Administrative Agent nor any of its directors, officers, agents, employees or counsel shall be liable for
any action taken or not taken by it under or in connection with this Agreement or any other Loan Document, except for its or their
own gross negligence or willful misconduct in connection with its duties expressly set forth herein or therein. Without limiting
the generality of the foregoing, the Administrative Agent: may consult with legal counsel (including its own counsel or counsel
for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken
or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. Neither the Administrative
Agent nor any of its directors, officers, agents, employees or counsel: (a) makes any warranty or representation to any Lender
or any other Person and shall be responsible to any Lender or any other Person for any statement, warranty or representation made
or deemed made by the Borrower, any other Loan Party or any other Person in or in connection with this Agreement or any other Loan
Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under this Agreement
or any Loan Document on the part of the Borrower or other Persons or inspect the property, books or records of the Borrower or
any other Person; (c) shall be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto
or any Collateral covered thereby or the perfection or priority of any Lien in favor of the Administrative Agent on behalf of the
Lenders in any such Collateral; (d) shall have any liability in respect of any recitals, statements, certifications, representations
or warranties contained in any of the Loan Documents or Guaranty or any other document, instrument, agreement, certificate or statement
delivered in connection therewith; and (e) shall incur any liability under or in respect of this Agreement or any other Loan Document
by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone, telecopy or electronic
mail) believed by it to be genuine and signed, sent or given by the proper party or parties. The Administrative Agent may execute
any of its duties under the Loan Documents or Guaranty by or through agents, employees or attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.


 




    	 	53	 



     


    

 


12.12     Indemnification
of Administrative Agent. Regardless of whether the transactions contemplated by this Agreement, the other Loan Documents
and Other Related Documents are consummated, each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with such Lender’s respective
Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against
the Administrative Agent (in its capacity as Administrative Agent but not as a “Lender”) in any way relating to or
arising out of the Loan Documents or Other Related Documents, any transaction contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under the Loan Documents and Other Related Documents (collectively, “Indemnifiable
Amounts”); provided, however, that no Lender shall be liable for any portion of such Indemnifiable Amounts to the extent
resulting from the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction
in a final, non-appealable judgment provided, however, that no action taken in accordance with the directions of the Requisite
Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 12.12. Without limiting
the generality of the foregoing, each Lender agrees to reimburse the Administrative Agent (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so) promptly upon demand for its ratable share of any out-of-pocket
expenses (including the reasonable fees and expenses of the counsel to the Administrative Agent) incurred by the Administrative
Agent in connection with the preparation, negotiation, execution, administration, or enforcement (whether through negotiations,
legal proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of the parties under, the Loan
Documents and Other Related Documents, any suit or action brought by the Administrative Agent to enforce the terms of the Loan
Documents and Other Related Documents and/or collect any obligation of Borrower hereunder, any “lender liability” suit
or claim brought against the Administrative Agent and/or the Lenders, and any claim or suit brought against the Administrative
Agent and/or the Lenders arising under any Hazardous Materials Laws. Such out-of-pocket expenses (including counsel fees) shall
be advanced by the Lenders on the request of the Administrative Agent notwithstanding any claim or assertion that the Administrative
Agent is not entitled to indemnification hereunder upon receipt of an undertaking by the Administrative Agent that the Administrative
Agent will reimburse the Lenders if it is actually and finally determined by a court of competent jurisdiction that the Administrative
Agent is not so entitled to indemnification. The agreements in this Section 12.12 shall survive the payment of the Loans and all
other amounts payable hereunder or under the other Loan Documents or Guaranty and the termination of this Agreement. If the Borrower
shall reimburse the Administrative Agent for any Indemnifiable Amount following payment by any Lender to the Administrative Agent
in respect of such Indemnifiable Amount pursuant to this Section, the Administrative Agent shall share such reimbursement on a
ratable basis with each Lender making any such payment.


 




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12.13     Lender
Credit Decision Etc. Each Lender expressly acknowledges and agrees that neither the Administrative Agent nor any of
its officers, directors, employees, agents, counsel, attorneys-in-fact or other affiliates has made any representations or warranties
to such Lender and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Borrower,
any Guarantor or Affiliate, shall be deemed to constitute any such representation or warranty by the Administrative Agent to any
Lender. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, any other Lender
or counsel to the Administrative Agent, or any of their respective officers, directors, employees, agents or counsel, and based
on the financial statements of the Borrower, Guarantors or Affiliates, and inquiries of such Persons, its independent due diligence
of the business and affairs of the Borrower, the Guarantors and other Persons, its review of the Loan Documents and the Guaranty,
the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents and information
as it has deemed appropriate, made its own credit and legal analysis and decision to enter into this Agreement and the transactions
contemplated hereby. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent,
any other Lender or counsel to the Administrative Agent or any of their respective officers, directors, employees and agents, and
based on such review, advice, documents and information as it shall deem appropriate at the time, continue to make its own decisions
in taking or not taking action under the Loan Documents or Guaranty. The Administrative Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower of the Loan Documents or Other Related Documents or any other document
referred to or provided for therein or to inspect the properties or books of, or make any other investigation of, the Borrower.
Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative
Agent under this Agreement, any of the other Loan Documents or Guaranty, the Administrative Agent shall have no duty or responsibility
to provide any Lender with any credit or other information concerning the business, operations, property, financial and other condition
or creditworthiness of the Borrower, any Guarantor or any other Affiliate thereof which may come into possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or other Affiliates. Each Lender acknowledges that
the Administrative Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only acting
as counsel to the Administrative Agent and is not acting as counsel to such Lender.


 


12.14     Successor
Administrative Agent. Administrative Agent may resign at any time as Administrative Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Requisite Lenders shall have the
right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed in accordance
with the immediately preceding sentence, and shall have accepted such appointment, within thirty (30) days after the current Administrative
Agent’s giving of notice of resignation, then the current Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be an Eligible Assignee.
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the current Administrative
Agent, and the current Administrative Agent shall be discharged from its duties and obligations under the Loan Documents and the
Other Related Documents. After any Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of
this Article XII shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents and the Other Related Documents. Notwithstanding anything contained herein to the contrary, the
Administrative Agent may assign its rights and duties under the Loan Documents and the Other Related Documents to any of its Affiliates
by giving the Borrower and each Lender prior written notice.


 




    	 	55	 



     


    

 


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


 


12.16     Electronic
Document Delivery. Documents required to be delivered pursuant to the Loan Documents shall be delivered by electronic
communication and delivery. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic delivery pursuant to procedures approved by it for all or particular notices or communications.
Documents or notices delivered electronically shall be deemed to have been delivered twenty-four (24) hours after the date and
time on which the Administrative Agent or Borrower posts such documents or the documents become available on a commercial website
and the Administrative Agent or Borrower notifies each Lender of said posting and provides a link thereto provided if such notice
or other communication is not sent or posted during the normal business hours of the recipient, said posting date and time shall
be deemed to have commenced as of 9:00 a.m. on the opening of business on the next business day for the recipient. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to provide paper copies of any certificates required
to be delivered by to the Administrative Agent and shall deliver paper copies of any documents to the Administrative Agent or to
any Lender that requests such paper copies until a written request to cease delivering paper copies is given by the Administrative
Agent or such Lender. Except for the certificates required to be delivered hereunder, the Administrative Agent shall have no obligation
to request the delivery of or to maintain paper copies of the documents delivered electronically, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery. Each Lender shall be solely responsible
for requesting delivery to it of paper copies and maintaining its paper or electronic documents.


 


12.17     Wire
Installments. All payments to Administrative Agent by a Lender shall be made by Federal Reserve wire transfer, as follows:


 


	Torrey Pines Bank	 
	12220 El Camino Real	 
	San Diego, CA 92130	 
	Routing Number:	122-243-635
	Account Number:	801-100-4325
	Credit To:	Parkview Financial Fund 2015 LP
	Parkview Address:	12400 Wilshire Blvd., Suite 350
	 	Los Angeles, CA 90025
	Reference:	Fremont Hills


 




    	 	56	 



     


    

 


All
payments to Trez Capital (2016) Corporation by Administrative Agent shall be made by Federal Reserve wire transfer, as follows:


 


	RBC Royal Bank
	1025 West Georgia Street
	Vancouver, BC V6E 3N9
	Bank   #	003	 
	Transit# 	00010	 
	Account Number	4023909
	SWIFT ROYCCAT2	 
	Correspondent Bank: JP Morgan Chase
	ABA #:	021000021


 


ARTICLE XIII


AMENDMENTS AND WAIVERS


 


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


 


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


 


(i)          increase
the Commitments of the Lenders (excluding any increase as a result of an assignment of Commitments permitted under Article XIV
or subject the Lenders to any additional obligations;


 


(ii)          reduce
the principal of, or interest rates that have accrued or that will be charged on the outstanding principal amount of, the Loan;


 


(iii)        reduce
the amount of any fees payable to the Lenders hereunder;


 




    	 	57	 



     


    

 


(iv)         postpone
any date fixed for any payment of principal of, or interest on, the Loan (including, without limitation, the Maturity Date) or
for the payment of fees or any other obligations of Borrower or Guarantor;


 


(v)          change
the Pro Rata Shares (excluding any change as a result of an assignment of Commitments permitted under Article XIV);


 


(vi)         amend
this Section or amend the definitions of the terms used in this Agreement or the other Loan Documents insofar as such definitions
affect the substance of this Section;


 


(vii)        modify
the definition of the term “Requisite Lenders” or modify in any other manner the number or percentage of the Lenders
required to make any determinations or waive any rights hereunder or to modify any provision hereof;


 


(viii)       release
any Guarantor from its obligations under the Guaranty;


 


(ix)         waive
a Default under Section 9.2; or


 


(x)          release
or dispose of any Collateral unless released or disposed of as permitted by, and in accordance with, Section 12.7.


 


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


 


ARTICLE
XIV


SUCCESSORS
AND ASSIGNS


 


14.1       Generally.
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or otherwise transfer any of its rights under this Agreement without the prior
written consent of all the Lenders (and any such assignment or transfer to which all of the Lenders have not consented shall be
void).


 




    	 	58	 



     


    

 


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


 


14.3       Assignments.
Any Lender may with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld) at
any time assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its rights and obligations
under this Agreement and the Notes; provided, however, any partial assignment shall be in an amount at least equal to One Million
and No/100ths Dollars ($1,000,000.00) and after giving effect to such assignment the assigning Lender retains a Commitment, or
if the Commitments have been terminated, holds a Note having an outstanding principal balance, of at least One Million and No/100ths
Dollars ($1,000,000.00), and (iii) each such assignment shall be effected by means of an Assignment and Assumption Agreement. Upon
execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase
price agreed between such transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender with a Commitment as set forth in such Assignment and Assumption Agreement,
and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment pursuant to this subsection (c), the transferor
Lender, the Administrative Agent and the Borrower shall make appropriate arrangement so the new Notes are issued to the Assignee
and such transferor Lender, as appropriate. In connection with any such assignment, the transferor Lender shall pay to the Administrative
Agent an administrative fee for processing such assignment in the amount of Five Thousand and No/l00ths Dollars ($5,000.00). Anything
in this Section to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan held by it hereunder
to the Borrower, or any of its respective Affiliates or subsidiaries.


 




    	 	59	 



     


    

 


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


 


14.5       Federal
Reserve Bank Assignments. In addition to the assignments and participations permitted under the foregoing provisions
of the Section, and without the need to comply with any of the formal or procedural requirements of this Section, any Lender may
at any time and from time to time, pledge and assign all or any portion of its rights under all or any of the Loan Documents and
Other Related Documents to a Federal Reserve Bank; provided that no such pledge of assignment shall release such Lender from its
obligation thereunder. To facilitate any such pledge or assignment, Administrative Agent shall, at the request of such Lender,
enter into a letter agreement with the Federal Reserve Bank in, or substantially in, the form of the exhibit to Appendix C to the
Federal Reserve Bank of New York Operating Circular No 10, as amended from time to time. No such pledge or assignment shall release
the assigning Lender from its obligations hereunder.


 


14.6       Information
to Assignee Etc. A Lender may furnish any information concerning the Borrower, any subsidiary or any other Loan
Party in the possession of such Lender from time to time to Assignees and Participants (including prospective Assignees and
Participants). In connection with such negotiation, execution and delivery, Borrower authorizes Administrative Agent and
Lenders to communicate all information and documentation related to the Loan (whether to Borrower or to any Participant,
Assignee, legal counsel, appraiser or other necessary party) directly by e-mail, fax, or other electronic means used to
transmit information.


 




    	 	60	 



     


    

 


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


 


	 	BORROWER
	 	 
	 	FREMONT HILLS DEVELOPMENT CORPORATION, a California corporation
	 	 	 
	 	By:	/s/ Jae Ryu
	 	Name:	Jae Ryu
	 	Its:	Chief Financial Officer
	 	 	 
	 	ADMINISTRATIVE AGENT
	 	 
	 	PARKVIEW FINANCIAL FUND 2015, LP, a Delaware limited partnership


 


	 	By:	Parkview Financial Fund GP, Inc. a California corporation
	 	 	 	 
	 	 	By:	         
	 	 	Name:	 
	 	 	Its:	 


 


	 	LENDER
	 	 
	 	PARKVIEW FINANCIAL FUND 2015, LP, a Delaware limited partnership


 


	 	By:	Parkview Financial Fund GP, Inc. a California corporation
	 	 	 	 
	 	 	By:	          
	 	 	Name:	 
	 	 	Its:	 


 


	 	TREZ CAPITAL (2016) CORPORATION, a British Columbia corporation
	 	 	 
	 	By:	                 
	 	Name:	 
	 	Its:	 


 




    	 	61	 



     


    

 


EXHIBIT
A


 


PROPERTY DESCRIPTION


 


"New
Parcel 1" of Lot Line Adjustment 06-02 and 06-03, as disclosed by Certificate of Compliance recorded January 3, 2006, Series
2006-284 and 2006-285, Alameda County Records and Corrected by Certificate recorded July 6, 2006, Series 2006-257431 and 2006-257432,
Alameda County Records, which consist of the following Parcels:


 


PARCEL
ONE:


 


A
portion of Lot 13, Map of Plots Nos. 1 to 52, and Blocks A, B, C, D, and E of land belonging to a LA Society Francaise De Epaargnes
et de Prevoyance Mutelle in Washington Township, Alameda County, filed May 23, 1881, in Map Book 6, Page 22, Alameda County Records,
described as follows:


 


Beginning
at a point on the center line of Durham Road, (formerly Osgood Avenue) or County Road No. 2548, said point of being the most Southerly
comer of that certain piece or parcel of land conveyed by Sarah P. Osgood, et al to Felisberto A. Leal by Deed dated February 3,
1908 and recorded in Book 1454 of Deeds at Page 76, Alameda County Records; thence South 42° 15' East, along said center line
of County Road No. 2548, 242.62 feet; thence North 71° 6' East 1603.64 feet; thence North 64° 50' West 397.66 feet; thence
North 58° 51' West 253.51 feet to the Southeastern boundary line of said land conveyed to Leal; thence South 61° 45' West,
along said last mentioned line, 1275.81 feet to the point of beginning.


 


EXCPETING
THEREFROM that portion thereof lying Westerly of the Eastern line of the Parcel of land described in the Deed from Fremont Syndicate,
Inc., to State of California, recorded October 17, 1966, on Reel 1857, or Image 969, Series No. AY-119163, Alameda County Records.


 


PARCEL
TWO:


 


Beginning
at a point in the center line of Durham Road, formerly Osgood Avenue, or County Road No. 2548, distant thereon South
42° 15' East 242.62 feet; from the most Southern Corner of that certain piece or Parcel of Land conveyed by Sarah P.
Osgood et al, to Felisberto A. Leal by Deed dated February 3, 1908 and recorded in Book 1454 of Deeds at Page 76, Alameda
County Records; thence South 42° 15' East along said line of Durham Road, 195.46 feet to the most Western comer of that
certain piece or Parcel of Land conveyed by Sarah P. Osgood, et al, to Sophie Wertheimer by Deed dated August 29, 1908 and
recorded September 21, 1908, in Book 1480 of Deed at Page 377, Alameda County Records; thence North 71-1/2° East 1711.61
feet; thence North 64° 50' West 257.82 feet; thence South 71° 06' West 1603.64 feet to the point of
beginning.


 


EXCEPTING
THEREFROM that portion lying Westerly from the Eastern line of the Parcel of Land described in the Deed to State of California,
recorded September 15, 1966, Reel 1841 or Image 257, AY-108214, Alameda County Records.


 


PARCEL
THREE:


 


Beginning
at a point in the center line of Osgood Avenue at the most Southern comer of that certain 6.83 acre tract conveyed by Frank G.
Rodrigues to Manuel G. Rodriguez, by Deed dated February 10, 1910, recorded in Book 1718 of Deeds, Page 120, Alameda County Records;
thence South 42° 15' East along said center line of Osgood Avenue 278 feet, to the Northwestern boundary line of land now or
formerly belonging to O.N. Hirsch; thence North 71° 30' East along said line of said Hirsch 1892.11 feet; thence North 64 1/4°
West 360 feet, to the Southeastern boundary line of said 6.83 acre tract; thence South 71° 30' West along said Southeastern
boundary line of said 6.83 acre tract 1715 feet, 9 inches, to the point of beginning.


 




    Exhibit A – Page 1


     


    

 


EXCEPTING
THEREFROM that portion lying Westerly from the Eastern line of the Parcel of Land described in the Deed to State of California,
recorded October 15, 1966, Reel 1841 OR Image 257, AY-108244, Alameda County Records.


 


PARCEL
FOUR:


 


Portion
of Survey No. 11 of the lands of the Ex-Mission San Jose, described as follows:


 


Beginning
at a point in the center line of County Road, known as Osgood Avenue, at the Eastern comer of Lands, now or formerly of Joe Silva
Brown; and running thence along the center line of said Osgood Avenue, South 42 1⁄2°
East, 906.15 feet; thence North 61 1/2°
 East, 1790.20 feet to an iron pipe driven in the Ground; thence
along the line of lands, now or formerly of Faria, North 45 1⁄2°  West,
589.12 feet to the lands formerly of F.S. Osgood and S.P. Osgood and more recently of Sophia Wertheimer; and thence along the
latter mentioned lands, South 71 1/2° West, 1892.26 feet to the point of beginning.


 


EXCEPTING
THEREFROM all those portions of the Final Order of Condemnation, in favor of the State of California, a certified copy of which
recorded August 6, 1969, Reel 2454, Image 716, Series No. 69-88430, Alameda County Records.


 


ALSO
EXCEPTING THEREFROM Parcels A and B, as described in the Final Order of Condemnation, in favor of the City of Fremont, a certified
copy of which recorded September 23, 1988, Series No. 88-242259, Official Records.


 


ALSO
EXCEPTING THEREFROM that portion described in the Deed recorded January 31, 1995, Series No. 95-020084, Official Records of Alameda
County.


 


Further
excepting therefrom that exception to Parcel 4A portion described as Exception 1, as said Parcel is described in that Final Order
of Condemnation in favor of The State of California recorded August 6, 1969, on Reel 2454, Image 716 through 731, Series No. 69-88430,
Alameda County Records, described as follows:


 


Beginning
for reference at the Southeasterly terminus of the course "South 83° 00' 00" East, 277.88 feet" of Parcel 4A
referenced above; thence South 06° 50' 00" West, 60.00 feet to the true point of commencement; thence North 83° 10'
00" West, 388.32 feet; thence South 23° 45' 00" East, 145.97 feet; thence South 26° 57' 12" East, 166.76
feet; thence North 73° 13' 37" East, 160.52 feet; thence North 76° 09' 28" East, 173.08 feet; thence North 06°
08' 26" West, 86.79 feet; thence along a tangent curve to the left with a radius of 70.00 feet, through a central angle of
77° 01' 34", an arc length of 77° 01' 34", an arc length of 94.10 feet to the true point of commencement.


 


APN:
513-0701-014-10


 




    Exhibit A – Page 2