Loading...
HomeMy WebLinkAboutC- 3 ALP Construction Loan short term Agrmt.03-24-08A60■ AGENDA ITEM TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AZUSA UTILITY BOARD AND AZUSA CITY COUNCIL FROM: JOSEPH F. HSU, DIRECTOR OF UTILITIES DATE: MARCH 24, 2008 SUBJECT: APPROVAL OF A LOAN FROM THE CITY TO AZUSA LAND PARTNERS RECOMMENDATION It is recommended that the Azusa City Council/Utllity Board approve a short-term loan in an amount not to exceed $5 million to Azusa Land Partners (ALP), and authorize the City Manager to execute all the necessary documents when execution copies are available following approval of all documents by the City Attorney's Office. The substantially completed documents are attached for your reference. BACKGROUND As you are aware, due to the temporary fiscal challenges faced by Azusa Land Partners (ALP), there has been a slow down or stoppage of construction activities in the Rosedale Project. Some projects where work has. stopped are very critical to the integrity of the City's public infrastructure. These projects include water reservoirs, transmission lines, pump stations, and . storm drainage systems. The approved Development Agreement with ALP includes construction of water reservoirs with sufficient capacity to fulfill the needs of the Rosedale Development and satisfy the needs of Azusa Light & Water's system storage requirements. As stipulated in the Agreement, each party is responsible for its proportional share of the cost; ALP is to pay for the installations and Azusa Light & Water is to reimburse ALP for its share of the cost within 30 days of the reservoir and other facilities being placed into service. The estimated amount of reimbursement by Azusa Light & Water is approximately $6 million, assuming no substantial change orders are encountered during the reminder of the project. However, due to the financial difficulties ALP is experiencing, the City proposes to loan ALP $5 million so that it can complete construction and installation of critical projects which are specifically listed in the attachment to the Loan Agreement. This advanced funding would be deducted from any reimbursement amounts owed to ALP through the Development Agreement for these facilities. Staff believe that this action is necessary to finish the projects critical to the integrity of the City's public infrastructure and secure the work performed to date. Loan will only be disbursed as progress payments to the respective contractors for the amount of work to be completed. FISCAL IMPACT The amount of loan can be funded out of the Water Capital Improvement Project Budget for the reservoir project, which has the 2006 Water Revenue Bond proceeds as its funding source. Prepared by: J. Hsu Attachment HE r ALP Const Loan ALP Draw Agr. DOC ALP- Prom Note. DOC ALP Const Agr. DOC Loan -Exhibit A. PDF HE r CONSTRUCTION LOAN AGREEMENT THIS CONSTRUCTION LOAN AGREEMENT dated , 2008 is made and executed between Azusa Land Partners, LLC, a Delaware limited liability company ("Borrower') and the City of Azusa, a public corporation ("Lender") on the following terms and conditions. RECITALS A. Borrower is constructing several Projects, as defined below, as required by that certain Development Agreement by and between the Lender and Monrovia Nursery Company which was assigned to and assumed by the Borrower ("Development Agreement"). B. Work on the Projects has been initiated, but the Borrower now needs financing to complete the Projects. C. Financing for the Projects shall be provided to the Borrower by the Loan in the original principal amount of up to $5,000,000 ("Lender Loan"), which shall be evidenced by the Note, as defined below. D. The Loan will be governed by the terms and conditions of this Agreement and the Related Documents, including a Draw Agreement. E. Borrower acknowledgers and agrees that as of the date of this Agreement, the Lender is not in default of any term or condition of the Development Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: TERM. This Agreement shall be effective as of , and shall continue in full force and effect until such time as all of Borrower's Loans in favor of Lender have been paid in full, including principal, interest, costs, expenses, attorneys' fees, and other fees and charges, or until such time as the parties may agree in writing to terminate this Agreement. REIMBURSEMENT AUTHORITY. The following person currently is authorized, except as provided in this paragraph, to request Reimbursements, as defined below, and authorize payments under the until Lender receives from Borrower written notice of revocation of his authority: Dan O'Bannon, Chief Financial Officer of the Borrower. LOAN. The Loan shall be in an amount not to exceed the principal sum of U.S. $5,000,000 and shall bear interest pursuant to the terms of this Agreement and the Related Documents. Borrower agrees that if the Loan is not paid when due pursuant to the terms of the Note, the Lender may offset any amounts due to Borrower by Lender pursuant to the terms and conditions of the Development Agreement. Borrower shall use the Loan Funds solely for the following specific purposes: [to be supplied by Borrower] The Loan amount shall be 1 069 subject at all times to all maximum limits and conditions set forth in this Agreement or in any of the Related Documents. PROJECTS DESCRIPTION. The word 'Projects' as used in this Agreement means the construction and completion of all Improvements contemplated by the Development Agreement, including the installation of equipment and fixtures, landscaping, and all other work necessary to make the Projects usable and complete for the intended purposes. The Improvements include the following work: The work itemized on those line items depicted on Exhibit A attached • hereto and incorporated herein by reference. The word 'Property" as used in this Agreement means the Real Property described in Exhibit B attached hereto and incorporated herein by reference which is to be transferred to the Lender pursuant to the Development Agreement, as well as all other real property, together with all relevant Improvements, all equipment, fixtures, and other articles of personal property now or subsequently attached or affixed to the Real Property as well as all other real property, together with all accessions, parts, and additions to, all replacements of, and all substitutions for any of such property, and all proceeds (including insurance proceeds and refunds of premiums) from any sale or other disposition of such property. FEES AND EXPENSES. Whether or not the Projects shall be consummated, Borrower shall assume and pay upon demand all out-of-pocket expenses incurred by Lender in connection with the preparation of loan documents and the making of the Loan, including without limitation the following (A) all closing costs, loan fees, and disbursements; (B) all expenses of Lender's legal counsel; and (C) all title examination fees, title insurance premiums, appraisal fees, survey costs, required fees, and filing and recording fees, if any. NO CONSTRUCTION PRIOR TO RECEIPT OF CERTAIN DOCUMENTS. Borrower will not permit any work or materials to be furnished in connection with the Projects until (A) Borrower has signed the Related Documents; and (B) Lender has been provided evidence, satisfactory to Lender, that Borrower has obtained all insurance required under this Agreement or any Related Documents. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as of the date of this Agreement, as of the date of each disbursement of loan proceeds, as of the date of any renewal, extension or modification of any loan, and at all times any Indebtedness exists: Organization. Borrower is a limited liability company which is, and at all times shall be, duly organized, validly existing, and in good standing under and by virtue of the laws of the State of Delaware. Borrower is duly authorized to transact business in California, having obtained all necessary filings, governmental licenses and approvals for each state in which Borrower is doing business. Specifically, Borrower is, and at all times shall be, duly qualified as a foreign partnership in all states in which the failure to so qualify would have a material adverse effect on its business or financial condition. Borrower has the full power and authority to own its properties and to transact the business in which it is presently engaged or presently proposes to engage. Borrower maintains an office at 19 Corporate Plaza Dr., Newport Beach, CA 92660. Unless Borrower has designated otherwise in writing, the principal office is the office at which Borrower keeps its books 2 0'iV 0 and records including its records concerning the Projects. Borrower will notify Lender prior to any change in the location of Borrower's principal office address or any change in Borrower's name. Borrower shall do all things necessary to preserve and to keep in full force and effect its existence; rights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi -governmental authority or court applicable to Borrower and Borrower's business activities. Assumed Business Names. Borrower has filed or recorded all documents or filings required by law relating to all assumed business names used by Borrower. Authorization. Borrower's execution, delivery, and performance of this Agreement and all the Related Documents have been duty authorized by all necessary action by Borrower and do not conflict with, result in a violation of, or constitute a default under (1) any prevision of (a) Borrower's articles or operating agreements, or (b) any agreement or other instrument binding upon Borrower or (2) any law, governmental regulation, court decree, or order applicable to Borrower or to Borrower's properties. Financial Information. If financial statements are required by Lender, each of Borrower's financial statements supplied to Lender truly and completely disclose Borrower's financial condition as of the date of the statements. Borrower has no material contingent obligations except as disclosed in such financial statements. Legal Effect. This Agreement constitutes, and any instrument or agreement Borrower is required to give under this Agreement when delivered will constitute legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms. Properties. Except as contemplated by this Agreement or as previously disclosed in Borrower's financial statements or in writing to Lender and as accepted by Lender, and except for property tax liens for taxes not presently due and payable, Borrower owns and has good title to the Real Property free and clear of all security interests, and has not executed any security documents or financing statements relating to such properties. All of Borrower's properties are titled in Borrower's legal name, and Borrower has not used or filed a financing statement under any other name for at least the last five (5) years. Hazardous Substances. Except as disclosed to and acknowledged by Lender in writing, Borrower represents and warrants that (1) During the period of Borrower's ownership of the Real Property, there has been no unlawful use or generation, manufacture, storage, treatment, disposal release or threatened release deny Hazardous Substances by any person on, under, about or from any of the Real Property, (2) Borrower has no knowledge of; or reason to believe that there has been (a) any breach or violation of any Environmental Laws; (b) any unlawful use or generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Real Property by any prior owners or occupants of any of the Real Property; or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters. (3) Neither Borrower nor any tenant, contractor, agent or other authorized user of any of the Real Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substances on, under about or from any of the Real Property; and any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations, and ordinances, including without limitation all Environmental Laws. Borrower authorizes Lender and its 3 071 agents to enter upon the Real Property to make such inspections and tests as Lender may deem appropriate to determine compliance of the Real Property with this section of the Agreement Any inspections or tests make by Lender shall be at Borrower's expense and for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Borrower or to any other person. The representations and warranties contained herein are based on Borrower's due diligence in investigating the Real Property for hazardous waste and Hazardous Substances. Borrower hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Borrower becomes liable for cleanup or other costs under any such laws, and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties and expenses which Lender may directly or indirectly sustain or suffer from a breach of this section of the Agreement or as a consequence of any unlawful use or generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance on the Real Property. The provisions of this section of the Agreement, including the obligation to indemnify, shall survive the payment lithe indebtedness and this termination, expiration or satisfaction of this Agreement and shall not be affected by Lender's acquisition of any interest or in any of the Real Property, whether by foreclosure or otherwise. Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Borrower is pending or threatened, and no other event has occurred which may materially adversely affect Borrower's financial condition or properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Lender in writing. Taxes. To the best of Borrower's knowledge, all of Borrower's tax returns and reports that are or were required to be filed, have been filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contorted by Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided. Binding Effect. This Agreement, the Note, all Security Agreements (if any), and all Related Documents are binding upon the signers thereof, as well as upon their successors, representatives and assigns, and are legally enforceable in accordance with their respective terms. Title to Property. Borrower has, or on the data of first disbursement of Loan proceeds will have, good and marketable title to the Real Property free and clear of all defects, liens, and encumbrances, excepting only liens for taxes, assessments, or governmental charges or levies not yet delinquent or payable without penalty or interest, and such liens and encumbrances as may be approved in writing by the Lender. Projects Costs. The Projects costs are true and accurate estimates of the costs necessary to complete the Improvements in a good and workmanlike manner according to the Plans and Specifications presented by Borrower to Lender, and Borrower shall take all steps necessary to prevent the actual cost of the Improvements from exceeding the Projects costs. Utility Services. All utility services appropriate to the use of the Projects after completion of construction are available at the boundaries of the Real Property. 4 072 Compliance with Governing Authorities. Borrower has examined and is familiar with all the easements, covenants, conditions, restrictions, reservations, building laws, regulations, zoning ordinances, and federal, state, and local requirements affecting the Projects. The Projects will at all times and in all respects conform to and comply with the requirements of such easements, covenants, conditions, restrictions, reservations, building laws, regulations, zoning ordinances, and federal, state, and local requirements. Survival of Representations and Warranties. Borrower understands and agrees that in making the Loan, Lender is relying on all representations, warranties, and covenants made by Borrower in this Agreement or in any certificate or other instrument delivered by Borrower to Lender under this Agreement or the Related Documents. Borrower further agrees that regardless of any investigation made by Lender, all such representations, warranties and covenants will survive the making of the Loan and delivery to Lender of the Related Documents, shall be continuing in nature, and shall remain in full force and affect until such time as Borrower's Indebtedness shall be paid in full, or until this Agreement shall be terminated in the manner provided above, whichever is the last to occur. CONDITIONS PRECEDENT TO EACH REIMBURSEMENT. Lender's obligation to make the initial Reimbursement and each subsequent Reimbursement under this Agreement shall be subject to the fulfillment to Lender's satisfaction of all of the conditions set forth in this Agreement and in the Related Documents. Approval of Contractors, Subcontractors, and Materialmen. Lender shall have approved a list of all contractors employed in connection with the construction of the Improvements, showing the name, address, and telephone number of each contractor, a general description of the nature of the work to be done, the labor and materials to be supplied, the names of materialmen, if known, and the approximate dollar value of the labor, work, or materials with respect to each contractor or materialman. Lender shall have the right to communicate with any person to verify the facts disclosed by the list or by any application for any Reimbursement, or for any other purpose. Plans, Specifications, and Permits. Lender shall have. received and accepted a complete set of written Plans and Specifications setting forth all Improvements for the Projects, and Borrower shall have furnished to Lender copies of all permits and requisite approvals of any governmental body necessary for the construction and use of the Projects. Construction Contracts. Borrower shall have furnished in form and substance satisfactory to Lender an executed copy of each of the Construction Contracts. Related and Support Documents. Borrower shall provide to Lender in form satisfactory to Lender the following support documents for the Loan: Assignment of Construction Contracts and any completion guaranty or other guaranty executed by the Contractors in favor of the Borrower. Budget and Schedule of Estimated Reimbursements. Lender shall have approved detailed budget and cash flow projections of total Projects costs and a schedule of the estimated amount and time of disbursements of each Reimbursement. Borrower's Authorization. Borrower shall have provided in form and substance satisfactory to Lender properly certified resolutions, duly authorizing the consummation of 5 073 the Projects and duly authorizing the execution and delivery of this Agreement, the Note and the Related Documents. In addition, Borrower shall have provided such other resolutions, authorizations, documents and instruments as Lender or its counsel, in their sole discretion, may require. Bond. If requested by Lender, Borrower shall have furnished a performance and payment bond in an amount equal to 100% of the amount of the Construction Contracts, as well as a materialmen's and mechanics' payment bond, with such riders and supplements as Lender may require, each in form and substance satisfactory to Lender, naming the General Contractors as principal and Lender as an additional obligee. Any required bonds and the contracts which they cover must be duly recorded or filed in accordance with California Civil Code Section 3235, if required by Lender. Plans and Specifications. If requested by Lender, Borrower shall have assigned to Lender on Lender's forms the Plans and Specifications for the Projects. Environmental Report. If requested by Lender, Borrower shall have furnished to Lender, at Borrower's expense, an environmental report and certificate on the Property in form and substance satisfactory to Lender, prepared by an engineer or other expert satisfactory to Lender stating that the Real Property complies with all applicable provisions and requirements of the "Hazardous Substances" paragraph set forth in this Agreement. Soil Report. If requested by Lender, Borrower shall have furnished to under, at Borrower's expanses, a soil report for the Real Property in form and substance satisfactory to Lender, prepared by a registered engineer satisfactory to Lender stating that the Real Property is free from soil or other geological conditions that would preclude its use or development as contemplated without extra expense for precautionary, corrective or remedial measures. Survey. If requested by Lender, Borrower shall have furnished to Lender a survey of recent date, prepared and certified by a qualified surveyor and providing that the Improvements, if constructed in accordance with the Plans and Specifications, shall lie wholly within the boundaries of the Real Property without encroachment or violation of any zoning ordinances, building codes or regulations, or setback requirements, together with such other information as Lender in its sole discretion may require. Insurance. Unless waived by Lender in writing, Borrower shall have delivered to Lender the following insurance policies or evidence thereof: (a) an all risks course of construction insurance policy (builder's risk), with extended coverage covering the Improvements issued in an amount and by a company acceptable to Lender, containing a loss payable or other endorsement satisfactory to Lender insuring tender as mortgagee, together with such other endorsements as may be required by Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty (30) days prior written notice to Lender; (b) owners and General Contractor general liability insurance, public liability and workmen's compensation insurance; (c) flood insurance if required by Lender or applicable law; and (d) all other insurance required by this Agreement or by the Related Documents. Workers' Compensation Coverage. Provide to Lender proof of the General Contractor's compliance with all applicable workers' compensation laws and regulations with regard to all work performed on the Projects. 6 074 Payment of Fees and Expenses. Borrower shall have paid to Lender all fees, charges, and other expenses which are then due and payable as specified in this Agreement or any Related Document. Satisfactory Construction. All work usually done at the stage of construction for which disbursement is requested shall have been done in a good and .workmanlike manner and all materials and fixtures usually furnished and installed at that stage of construction shall have been furnished and installed, all in compliance with the Plans and Specifications. Borrower shall also have furnished to Lender such proofs as Lender may require to establish the progress of the work, compliance with applicable laws, freedom of the Property from liens, and the basis for the requested disbursement in addition to the requirements of the Draw Agreement. Certification. Borrower shall have furnished to Lender a certification by an engineer, architect, or other qualified inspector acceptable to Lender that the construction of the Improvements has complied and will continue to comply with all applicable statutes, ordinances, codes, regulations, and similar requirements. Lien Waivers. Borrower shall have obtained and attached to each application for a Reimbursement, including the Reimbursement to cover final payment to the General Contractors, executed acknowledgments of payments of all sums due and releases of mechanic's and materialmen's liens, satisfactory to Lender, from any party having lien rights, which acknowledgments of payment and releases of liens shall cover all work, labor, equipment, materials done, supplied, performed, or furnished prior to such application for a Reimbursement. No Event of Default. There shall not exist at the time of any Reimbursement a condition which would constitute an Event of Default under this Agreement or under any Related Document. DISBURSEMENT OF LOAN FUNDS. The following provisions relate to the disbursement of funds from the Loan Fund. Application for Reimbursements. Each application shall be stated on a Draw Agreement in the form attached hereto as Exhibit C and incorporated herein by reference, executed by Borrower, and supported by such evidence as Lender shall reasonably require. Borrower shall apply only for disbursement with respect to work actually done by the General Contractors and for materials and equipment actually incorporated into the Projects. Each application for a Reimbursement shall be deemed a certification of Borrower that as of the date of such application, all representations and warranties contained in the Agreement are true and correct, and that Borrower is in compliance with all of the provisions of this Agreement. Payments. At the sole option of Lender, Reimbursements may be paid in the joint names of Borrower and the General Contractors subcontractor(s), or supplier(s) in payment of sums due under the Construction Contracts. At its sole option, Lender may directly pay the General Contractors and any subcontractors or other parties the sums due under the Construction Contracts. Borrower appoints Lender as its attorney-in-fact to make such payments. This power shall be deemed coupled with an interest, shall be irrevocable, and shall survive an Event of Default under this Agreement. 7 075 Projected Cost Overruns. If Lender at any time determines in its sole discretion that the amount in the Loan Fund is insufficient, or will be insufficient, to complete fully and to pay for the Projects, then within twenty (20) days after receipt of a written request from Lender, Borrower shall deposit in the Loan Fund an amount equal to the deficiency as determined by Lender. The judgment and determination of Lender under this section shall be final and conclusive. Any such amounts deposited by Borrower shall be disbursed prior to any Loan Funds. Final Payment to General Contractors. Upon completion of the Projects and fulfillment of the Construction Contracts to the satisfaction of Lender and provided sufficient Loan Funds are available, Lender shall make a Reimbursement to cover the final payment due to the General Contractors following the posting of the completion notice, as provided under applicable law. Construction shall not be deemed complete for purposes of final disbursement unless and until Lender shall have received all of the following: (1) Evidence satisfactory to Lender that all work under the Construction Contracts requiring inspection by any governmental authority with jurisdiction has been duly inspected and approved by such authority, and that all parties performing work have been paid, or will be paid, for such work; (2) A certification by an engineer, architect, or other qualified inspector acceptable to Lender that the Improvements have been completed substantially in accordance with the Plans and Specifications and the Construction Contracts and that direct connection has been made to all utilities set forth in the Plans and Specifications; and (3) Acceptance of the completed Improvements by Lender and Borrower. Construction Default. If Borrower fails in any respect to comply with the provisions of this Agreement or if construction ceases before completion regardless of the reason, Lender, at its option, may refuse to make further Reimbursements, may accelerate the indebtedness under the terms of the Note, and without thereby impairing any of its rights, powers, or privileges, may enter into possession of the construction site and perform or cause to be performed any and all work and tabor necessary to complete the Improvements, substantially in accordance with the Plans and Specifications. Damage or Destruction. If any of the Improvements is damaged or destroyed by casualty of any nature, within sixty (60) days thereafter Borrower shall restore the Improvements to the condition in which they were before such damage or destruction with funds other than those in the Loan Fund. Lender shall not be obligated to make disbursements under this Agreement until such restoration has been accomplished. Upon Lender's approval, Borrower shall be entitled to use insurance proceeds for such restoration. Adequate Security. When any event occurs that Lender determines may endanger completion of the Projects or the fulfillment of any condition or covenant in this Agreement, Lender may require Borrower to furnish, within ten (10) days after delivery of a written request, adequate security to eliminate, reduce, or indemnify Lender against, such danger. In addition, upon such occurrence, Lender in its sole discretion may advance funds or agree to undertake to advance funds to any party to eliminate, reduce, or indemnify Lender against, such danger or to complete the Projects. All sums paid by Lender pursuant to such agreements or undertakings shall be for Borrower's account and shall be without prejudice to Borrower's rights, if any, to receive such funds from the party to whom paid. All sums 8 076 expended by Lender in the exercise of its option to complete the Projects or protect Lender's interests shall be payable to Lender on demand together with interest from the date of the Reimbursement at the rate applicable to the Loan. In addition, any Reimbursement of funds under this Agreement, including without limitation direct disbursements to the General Contractors or other parties in payment of sums due under the Construction Contracts, shall be deemed to have been expended by or on behalf of Borrower. CESSATION OF REIMBURSEMENTS. If Lender has made any commitment to make any Loan to Borrower, whether under this Agreement or under any other agreement, Lender shall have no obligation to make Loan Reimbursements or to disburse Loan proceeds if; (A) Borrower or any Guarantor is in default under the terms of this Agreement or any of the Related Documents or any other agreement that Borrower or any Guarantor has with Lender (B) Borrower or any Guarantor dies, becomes incompetent or becomes insolvent, files a petition in bankruptcy or similar proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse change in Borrower's financial condition or in the financial condition of any Guarantor; or (D) any Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such Guarantor's guaranty of the Loan or any other loan with Lender. LIMITATION OF RESPONSIBILITY. The making of any Reimbursement by Lender shall not constitute or be interpreted as either (A) an approval or acceptance by Lender of the work done through the date of the Reimbursement, or (B) a representation or indemnity by Lender to any party against any deficiency or defect in the work or against any breach of any contract. Inspections and approvals of the Plans and Specifications, the Improvements, the workmanship and materials used in the Improvements, and the exercise of any other right of inspection, approval, or inquiry granted to Lender in this Agreement are acknowledged to be solely for the protection of Lender's interests, and under no circumstances shall they be construed to impose any responsibility or liability of any nature whatsoever on Lender to any party. Neither Borrower nor any contractor, subcontractor, materialman, laborer, or any other person shall rely, or have any right to rely, upon Lender's determination of the appropriateness of any Reimbursement. No disbursement or approval by Lender shall constitute a representation by Lender as to the nature of the Projects, its construction, or its intended use for Borrower or for any other person, nor shall it constitute an indemnity by Lender to Borrower or to any other person against any deficiency or defects in the Projects or against any breach of any contract. AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long as this Agreement remains in effect, Borrower will: Notices of Claims and Litigation. Promptly inform Lender in writing of (1) all material adverse changes in Borrower's financial condition, and (2) all existing and all threatened litigation, claims, investigations, administrative proceedings or similar actions affecting Borrower or any Guarantor which could materially affect the financial condition of Borrower or the financial condition of any Guarantor. Financial Records. Maintain its books and records in accordance with GAAP, applied on a consistent basis, and permit Lender to examine and audit Borrower's books and records at all reasonable times. Financial Statements. Furnish Lender with such financial statements and other related information at such frequencies and in such detail as Lender may reasonably request. 9 077 Additional Information. Furnish such additional information and statements, lists of assets and liabilities, agings of receivables and payables, inventory schedules, budgets, forecasts, tax returns, and other reports with respect to Borrower's financial condition and business operations as Lender may request from time to time. Other Agreements. Comply with all terms and conditions of all other agreements, whether now or hereafter existing, between Borrower and any other party and notify Lender immediately in writing of any default in connection with any other such agreements. Insurance. Maintain fire and other risk insurance, hail, federal crop insurance, public liability insurance, and such other insurance as Lender may reasonably require with respect to Borrower's properties and operations, in form, amounts, coverages and with insurance companies acceptable to Lender. Borrower, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty (30) days prior written notice to Lender. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Borrower or any other person. In connection with all policies covering assets in which Lender holds or is offered a security interest for the Loans, Borrower will provide Lender with such lender's loss payable or other endorsements as Lender may reasonably require. Insurance Reports. Furnish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as Lender may reasonably request, including without limitation the following: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the properties insured; (5) the then current property values on the basis of which insurance has been obtained, and the manner of determining those values; and (6) the expiration date of the policy. Loan Fees. Charges and Expenses. Whether or not the Projects is completed, Borrower also shall pay upon demand all out-of-pocket expenses incurred by Lender in connection with the preparation of loan documents and the making of the Loan, including, without limitation, all closing costs, fees, and disbursements, all expenses of Lender's legal counsel, and all title examination fees, title insurance premiums, appraisal fees, survey costs, required fees, and filing and recording fees. Loan Proceeds. Use all Loan proceeds may be made solely for the construction of the Improvements. Taxes, Charges and Liens. Pay and discharge when due all, of its indebtedness and obligations, including without limitation all assessments, taxes, governmental charges, levies and liens, of every kind and nature, imposed upon Borrower or its properties, income, or profits, prior to the date on which penalties would attach, and all lawful claims that, if unpaid, might become a lien or charge upon any of Borrower's properties, income, or profits. Performance. Perform and comply, in a timely manner, with all terms, conditions, and provisions set forth in this Agreement, in the Related Documents, and in all other instruments and agreements between Borrower and Lender. Borrower shall notify Lender immediately in writing of any default in connection with any agreement. 10 07 ", Inspection. Permit employees or agents of Lender at any reasonable time to inspect the Property and Borrower's other properties and to examine or audit Borrower's books, accounts, and records and to make copies and memoranda of Borrower's books, accounts, and records. If Borrower now or at any time hereafter maintains any records (including without limitation computer generated records and computer software programs for the generation of such records) in the possession of a third party, Borrower, upon request of Lender, shall notify such party to permit Lender free access to such records at all reasonable times and to provide Lender with copies of any records it may request, all at Borrower's expense. Compliance Certificates. Unless waived in writing by Lender, provide Lender at least annually, with a certificate executed by Borrower's chief financial officer, or other officer or person acceptable to Lender, certifying that the representations and warranties set forth in this Agreement are true and correct as of the date of the certificate and further certifying that, as of the date of the certificate, no Event of Default exists under this Agreement. Construction of the Projects. Construction of the Projects has already commenced and Borrower shall cause the Improvements to be constructed and equipped in a diligent and orderly manner and in strict accordance with the Plans and Specifications approved by Lender, the Construction Contracts, and all applicable laws, ordinances, codes, regulations, and rights of adjoining or concurrent property owners. Borrower agrees to complete the Projects for purposes of final payment to the General Contractors on or before September 15, 2008, ("Completion Date") regardless of the reason for any delay. Defects. Upon demand of Lender, promptly correct any defect in the Improvements or any departure from the Plans end Specifications not approved by Lender in writing before further work shall be done upon the portion of the Improvements affected. Projects Claims and Litigation. Promptly inforni Lender of (1) all material adverse changes in the financial condition of the General Contractors, (2) any litigation and claims, actual or threatened, affecting the Projects or the General Contractors, which could materially affect the successful completion of the Projects or the ability of the General Contractors to complete the Projects as agreed; and (3) any condition or event which constitutes a breach or default under any of the Related Documents or any contract related to the Projects. Payment of Claims and Removal of Liens. (1) Cause all claims for labor done and materials and services furnished in connection with the Improvements to be fully paid and discharged in a timely manner, (2) diligently file or procure the filing of a valid notice of completion of the Improvements, or such comparable document as may be permitted under applicable lien laws, (3) diligently file or procure the filing of a notice of cessation, or such comparable document as may be permitted under applicable lien laws, upon the happening of cessation of labor on the Improvements for a continuous period of thirty (30) days or more, and (4) take all reasonable steps necessary to remove all claims of liens against the Real Property, the Improvements or any part of the Real Property or Improvements, or any rights or interests appurtenant to the Real Property or Improvements. Upon Lender's request, Borrower shall make such demands or claims upon or against laborers, materialmen, subcontractors, or other persons who have furnished or claim to have furnished labor, services, or materials in connection with the Improvements, which demands or claims shall under the laws of the State of California require diligent assertions of lien claims upon penalty of loss or waiver thereof. Borrower shall, within ten (10) days after the filing of any claim of lien that is 11 079 disputed or contested by Borrower, record or cause the General Contractors for the construction of the Improvements to record in the appropriate governmental office, a surety bond pursuant to California law sufficient to release the claim of lien and, within five (5) days of Lender's demand, make suitable provision by deposit of funds with Lender in an amount satisfactory to Lender or by bond satisfactory to Lender for the possibility that the contest will be unsuccessful. If Borrower fails to remove any lien on the Real Property or Improvements or provide a bond or deposit pursuant to this provision, Lender may pay such lien, or may contest the validity of the lien, and Borrower shall pay all costs and expenses of such contest, including Lender's reasonable attorneys' fees. Taxes and Claims. Pay and discharge when due all of Borrower's indebtedness, obligations, and claims that, if unpaid; might become a lien or charge upon the Property or Improvements; provided, however, that Borrower shall not be required to pay and discharge any such indebtedness, obligation, or claim so long as (1) its legality shall be contested in good faith by appropriate proceedings, (2) the indebtedness, obligation, or claim does not become a lien or charge upon the Real Property or Improvements, and (3) Borrower shall have established on its books adequate reserves with respect to the amount contested in accordance with GAAP. If the indebtedness, obligation, or claim does become a lien or charge upon the Real Property or Improvements, Borrower shall remove the lien or charge as provided in the preceding paragraph. Environmental Studies. Promptly conduct and complete, at Borrower's expense, all such investigations, studies, samplings and testings as may be requested by Lender or any governmental authority relative to any substance, or any waste or by-product of any substance defined as toxic or a hazardous substance under applicable federal, state, or local law, rule, regulation, order or directive, at or affecting any property or any facility owned, leased or used by Borrower. Additional Assurances. Make, execute and deliver to Lender such promissory notes, mortgages, deeds of trust, security agreements, assignments, financing statements, instruments, documents and other agreements as Lender or its attorneys may reasonably request to evidence and secure the Loans. LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect the Projects or if Borrower fails to comply with any provision of this Agreement or any Related Documents, including but not limited to Borrower's failure to discharge or pay when due any amounts Borrower is required to discharge or pay under this Agreement or any Related Documents, Lender on Borrower's behalf may (but shall ,not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on any Property and paying all costs for insuring, maintaining and preserving any Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Borrower. All such expenses will become a part of the indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. 12 080 NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this Agreement is in effect, Borrower shall not, without the prior written consent of Lender: Indebtedness and Liens. (1) Except for trade debt incurred in the normal course of business and Indebtedness to Lender contemplated by this Agreement, create, incur or assume indebtedness for borrowed money, including capital leases, (2) sell, transfer, mortgage, assign, pledge, lease, grant a security interest in, or encumber any of Borrower's assets (except as allowed as Permitted Liens), or (3) sell with recourse any of Borrower's accounts, except to Lender. Continuity of Operations. (1) Engage in any business activities substantially different than those in which Borrower is presently engaged, (2) cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change its name, dissolve or transfer or sell the Property out of the ordinary course of business. Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or assets to any other person, enterprise or entity, (2) purchase, create or acquire any interest in any other enterprise or entity, or (3) incur any obligation as surety or guarantor other than in the ordinary course of business. Modification of Contract. Make or permit to be made any modification of the Construction Contracts Liens. Create or allow to be created any lien or charge upon the Real Property or the Improvements. Agreements. Borrower will not enter into any agreement containing any provisions which would be violated or breached by the performance of Borrower's obligations under this Agreement or in connection herewith. GENERAL PROJECTS PROVISIONS. The following provisions relate to the construction and completion of the Projects: Change Orders. All requests for changes in the Plans and Specifications, other than minor changes involving no extra cost, must be in writing, signed by Borrower, and delivered to Lender for its approval. Borrower will not permit the performance of any work pursuant to any change order or modification of the Construction Contracts or any subcontract without the written approval of Lender. Borrower will obtain any required permits or authorizations from governmental authorities having jurisdiction before approving or requesting a new change order. Purchase of Materials; Conditional Sales Contracts. No materials, equipment, fixtures, or articles of personal property placed in or incorporated into the Projects shall be purchased or installed under any Security Agreement or other agreement whereby the seller reserves or purports to reserve title or the right of removal or repossession, or the right to consider such items as personal property after their incorporation into the Projects, unless otherwise authorized by Lender in writing. Lender's Right of Entry and Inspection. Lender and its agents shall have at all times the right of entry and free access to the Property and the right to inspect all work done, labor performed, and materials furnished with respect to the Projects. Lender shall have unrestricted access to and the right to copy all records, accounting books, contracts, 13 081 subcontracts, bills, statements, vouchers, and supporting documents of Borrower relating in any way to the Projects. Lender's Right to Stop Work. If Lender in good faith determines that any work or materials do not conform to the approved Plans and Specifications or sound building practices, or otherwise depart from any of the requirements of this Agreement, Lender may require the work to be stopped and withhold disbursements until the matter is corrected. In such event, Borrower will promptly correct the work to Lender's satisfaction. No such action by Lender will affect Borrower's obligation to complete the Improvements on or before the Completion Date. Lender is under no duty to supervise or inspect the construction or examine any books and records. Any inspection or examination by Lender is for the sole purpose of protecting Lender's security and preserving Lender's rights under this Agreement. No default of Borrower will be waived by any inspection by Lender. In no event will any inspection by Lender be a representation that there has been or will be compliance with the Plans and Specifications or that the construction is free from defective materials or workmanship. Indemnity. Borrower shall Indemnify and hold Lender harmless from any and all claims asserted against Lender or the Property by any person, entity, or governmental body, or arising out of or in connection with the Real Property, Improvements, or Projects Lender shall be entitled to appear in any proceedings to defend itself against such claims, and all costs and expenses attorneys' fees incurred by Lender in connection with such defense shall be paid by Borrower to Lender. Lender shall, in its sole discretion, be entitled to settle or compromise any asserted claims against it, and such settlement shall be binding upon Borrower for purposes of this indemnification. All amounts paid by Lender under this paragraph shall be deemed an additional principal Reimbursement under the Loan, payable upon demand, and shall bear interest at the rate applicable to the Loan. Publicity. Lender may display a sign at the construction site informing the public that Lender is the construction lender for the Projects. Lender may obtain other publicity in connection with the Projects through press releases and participation in ground -breaking and opening ceremonies and similar events. Actions. Lender shall have the tight to commence, appear in, or defend any action or proceeding purporting to affect the rights, duties, or liabilities of the parties to this Agreement, or the disbursement of funds from the Loan Fund. In connection with this right, Lender may incur and pay reasonable costs, expenses and attorneys' fees. Borrower covenants to pay to Lender on demand all such expenses, together with interest from the date Lender incurs the expense at the rate specified in the Note, and Lender is authorized to disburse funds from the Loan Fund for such purposes. DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: Payment Default. Borrower fails to make any payment when due under the Loan within ten (10) days of due date., Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of, the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. 14 082 Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in any environmental agreement executed in connection with the Loan. Default In Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's or any Grantor's property or Borrower's or any Grantor's ability to repay the Loan or perform their respective obligations under this Agreement or any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Death or Insolvency. The dissolution or termination of Borrower's existence as a going business or the death of any partner, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Defective Collateralization. This Agreement or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security Interest or lien) at any time and for any reason. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the Loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in en amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Breach of Construction Contracts. The Improvements are not constructed in accordance with the Plans and Specifications or in accordance with the terms of the Construction Contracts. Cessation of Construction. Prior to the completion of construction of the Improvements and equipping of the Projects, the construction of the Improvements or the equipping of the Projects is abandoned or work thereon ceases for a period of more than ten (10) days for any reason, or the Improvements are not completed for purposes of final payment to the General Contractors prior to the Completion Date, regardless of the reason for the delay. Transfer of Property. Sale, transfer, hypothecation, assignment, or conveyance of the Real Property or the Improvements or any portion thereof or interest therein by Borrower or any Borrower without Lender's prior written consent. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or 15 083 revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In the event of a death, Lender, at its option, may, but shall not be required to, pen -nit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a mariner satisfactory to Lender, and, in doing so, cure any Event of Default. Events Affecting General Partner of Borrower. Any of the preceding events occurs with respect to any general partner of Borrower or any general partner dies or becomes incompetent Change in Ownership. The resignation or expulsion of any general partner or member with an ownership interest of thirty percent (30%) or more in Borrower. Right to Cure. If any default, other than a default on Indebtedness, is curable and if Borrower or Grantor, as the case may be, has not been given a notice of a similar default within the preceding twelve (12) months, it may be cured if Borrower or Grantor, as the case may be, after receiving written notice from Lender demanding cure of such default (1) cure the default within thirty(30) days; or (2) if the cure requires more than thirty (30) clays, immediately initiate steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continue and complete all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. EFFECT OF AN EVENT OF DEFAULT; REMEDIES. Upon the occurrence of any Event of Default and at any time thereafter, Lender may at its option, but without any obligation to do so, and in addition to any other right Lender without notice to Borrower may have, do any one or more of the following without notice to Borrower: (a) Cancel this Agreement; (b) Institute appropriate proceedings to enforce the performance of this Agreement; (c) Withhold further disbursement of Loan Funds; (d) Expend funds necessary to remedy the default; (e) Take possession of the Property and continue construction of the Projects; (f) Accelerate maturity of the Note and/or Indebtedness and demand payment of all sums due under the Note and/or indebtedness; (g) Bring an action on the Note and/or Indebtedness; (h) Foreclose Lender's security agreement or Deed of Trust, if any, on the Property in any manner available under law; and (i) Exercise any other right or remedy which it has under the Note or Related Documents, or which is otherwise available at law or in equity or by statute. COMPLETION OF IMPROVEMENTS BY LENDER. If Lender takes possession of the Property, it may take any and all actions necessary in its judgment to complete construction of the Improvements, including but not limited to making changes in the Plans and Specifications, work, or materials and entering into, modifying or terminating any contractual arrangements, subject to Lender's right at any time to discontinue any work without liability. If Lender elects to complete the Improvements, it will not assume any liability to Borrower or to any other person for completing the Improvements or for the manner or quality of construction of the Improvements, and Borrower expressly waives any such liability. Borrower irrevocably appoints Lender as its attorney-in-fact, with full power of substitution, to complete the Improvements, at Lender's option, either in Borrower's name or in its own name. In any event, all sums expended by Lender in completing the construction of the Improvements will be considered to have been disbursed to Borrower. Any such sums that cause the principal amount of the Loan to exceed the face amount of the Note will be considered to be an additional Loan to Borrower, bearing interest at the Note rate. For these purposes, Borrower assigns to Lender all of its right, title and interest in and to the Projects Documents; however Lender will not have any obligation under the Projects 16 084 Documents unless Lender expressly hereafter agrees to assume such obligations in writing. Lender will have the right to exercise any rights of Borrower under the Projects Documents upon the occurrence of an Event of Default. Except as may be prohibited by applicable law, all of Lender's rights and remedies, whether evidenced by this Agreement or by any other writing, shall be cumulative and may be exercised singularly or concurrently. ADDITIONAL DOCUMENTS. Borrower shall provide Lender with the following additional documents: Articles or Agreement of Partnership. Borrower has provided or will provide Lender, if requested by the Lender, with a certified copy of Borrower's Articles or Operating Agreement, together with an appropriate company consent or agreement authorizing and designating one or more of the members to execute this Agreement, the Note and any and all Security Agreements directly or indirectly securing repayment of the same, and to consummate the borrowings and other transactions as contemplated under this Agreement, and to consent to the remedies following any default by Borrower as provided in this Agreement and in any Security Agreements. COST BREAKDOWN. All disbursements shall be based upon a detailed breakdown of the costs, as approved by Lender, of construction, improvements and any financing or development costs for which Borrower might request disbursement. Disbursements need not be made by Lender unless and until the revised cost breakdown is approved. Lender reserves the right to approve or disapprove any revised cost breakdown in its sole discretion. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Attorneys' Fees; Expenses. Borrower agrees to pay upon demand all of Lender's costs and expenses, including Lender's attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay someone else to help enforce this Agreement, and Borrower shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or Injunction), appeals, and any anticipated post judgment collection services. Borrower also shall pay all court costs and such additional fees as may be directed by the court. Authority to File Notices. Borrower appoints and designates under as its attorney -In -fact to file for the record any notice that Lender deems necessary to protect its interest under this Agreement. This power shall be deemed coupled with an interest and shall be irrevocable while any sum or performance remains due and owing under any of the Related Documents, Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement Governing Law. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of California without regard 17 085 to its conflicts of law provisions. This Agreement has been accepted by Lender in the State of California. Indemnification of Lender. Borrower agrees to indemnify, to defend and to save and hold Lender harmless from any and all claims, suits, obligations, damages, losses, costs and expenses (including, without limitation, Lender's attorneys' fees, as well as Lender's architect's and engineering fees), demands, liabilities, penalties, fines and forfeitures of any nature whatsoever that may be asserted against or incurred by Lender, its officers, directors, employees, and agents arising out of, relating to, or in any manner occasioned by this Agreement and the exercise of the rights and remedies granted Lender under this Agreement. The foregoing indemnity provisions shall survive the cancellation of this Agreement as to all matters arising or accruing prior to such cancellation and the foregoing indemnity shall survive in the event that Lender elects to exercise any of the remedies as provided under this Agreement following default hereunder. Consent to Loan Participation. Borrower agrees and consents to Lender's sale or transfer, whether now or later, of one or more participation interests in the Loan to one or more purchasers, whether related or unrelated to Lender. Lender may provide, without any limitation whatsoever, to any one or more purchasers, or potential purchasers, any information or knowledge Lender may have about Borrower or about any other matter relating to the Loan, and Borrower hereby waives any rights to privacy Borrower may have with respect to such matters. Borrower additionally waives any and all notices of sale of participation interests, as well as all notices of any repurchase of such participation interests. Borrower also agrees that the purchasers of any such participation Interests will be considered as the absolute owners of such interests in the Loan and will have all the rights granted under the participation agreement or agreements governing the sale of such participation interests. Borrower further waives all rights of offset or counterclaim that it may have now or later against Lender or against any purchaser of such a participation Interest and unconditionally agrees that either Lender or such purchaser may enforce Borrower's obligation under the Loan irrespective of the failure or insolvency of any holder of any interest in the Loan. Borrower further agrees that the purchaser of any such participation interests may enforce its interests irrespective of any personal claims or defenses that Borrower may have against Lender. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Borrower, or between Lender and any Grantor, shall constitute a waiver of any of Lender's rights or of any of Borrower's or any Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the 18 086 offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement. Successors and Assigns. All covenants and agreements by or on behalf of Borrower contained in this Agreement or any Related Documents shall bind Borrower's successors and assigns and shall inure to the benefit of Lender and its successors and assigns. Borrower shall not, however, have the right to assign Borrower's rights under this Agreement or any interest therein, without the prior written consent of Lender. Survival of Representations and Warranties. Borrower understands and agrees that in making the Loan, Lender is relying on all representations, warranties, and covenants made by Borrower in this Agreement or in any certificate or other instrument delivered by Borrower to Lender under this Agreement or the Related Documents. Borrower further agrees that regardless of any investigation made by Lender, all such representations, warranties and covenants will survive the making of the Loan and delivery to Lender of the Related Documents, shall be continuing in nature, and shall remain in full force and effect until such time as Borrower's Indebtedness shall be paid in full, or until this Agreement shall be terminated in the manner provided above, whichever is the last to occur. Time Is of the Essence. Time is of the essence in the performance of this Agreement. WAIVE JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined In this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code. Accounting words and terms not otherwise defined in this Agreement shall have the meanings assigned to them in accordance with generally accepted accounting principles as in effect on the date of this Agreement Agreement. The word "Agreement" means this Construction Loan Agreement, as this Construction Loan Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Construction Loan Agreement from time to time. Construction Contracts. The words "Construction Contracts" mean the contracts between Borrower and contractors for the Projects, and any subcontracts with subcontractors, materialmen, laborers, or any other person or entity for performance of work on the Projects or the delivery of materials to the Projects. 19 087 Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, at seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA'), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, at seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., Chapters 6.5 through 7.7 of Division 20 of the California Health and Safety Code, Section 25100, at seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set forth in this Agreement in the default section of this Agreement. GAAP. The word "GAAP" means generally accepted accounting principles. General Contractors. The term "General Contractors" means those contractors that have a direct contractual relationship with the Borrower. Grantor. The word "Grantor" means each and all of the persons or entities granting a Security Interest in any collateral for the Loan, including without limitation all Borrowers granting such a Security Interest. Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or all of the Loan and any guarantor under a completion guaranty agreement. Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or Infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also Includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all improvements to be constructed for the Projects contemplated by this Agreement. Indebtedness. The word "Indebtedness" means the indebtedness evidenced by the Note or Related Documents, Including all principal and interest together with all other indebtedness and costs and expenses for which Borrower is responsible under this Agreement or under any of the Related Documents. Loan. The word "Loan" means the loan or loans made to Borrower under this Agreement and the Related Documents as descried . 20 088 Loan Fund. The words "Loan Fund" mean the undisbursed proceeds of the Loan under this Agreement together with any equity funds or other deposits required from Borrower under this Agreement. Note. The word "Note" means the promissory note dated in the original principal amount of up to $5,000,000 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. Permitted Liens. The words "Permitted Liens" mean (1) liens and security Interests securing Indebtedness owed by Borrower to Lender; (2) liens for taxes, assessments, or similar charges either not yet due or being contested in, good faith; (3) liens of materialmen, mechanics, warehousemen, or carriers, or other like liens arising in the ordinary course of business and securing obligations which are not yet delinquent; (4) purchase money liens or purchase money security interests upon or in any property acquired or held by Borrower in the ordinary course of business to secure indebtedness outstanding on the date of this Agreement or permitted to be incurred under the paragraph of this Agreement tilled "indebtedness and Liens"; (5) liens and security interests which, as of the date of this Agreement, have been disclosed to and approved by the Lender in writing; and (6) those liens and security interests which in the aggregate constitute an immaterial and insignificant monetary amount with respect to the net value of Borrower's assets. Plans and Specifications. The words 'Plans and Specifications" mean the plans and specifications for the Projects which have been submitted to and initialed by Lender, together with such changes and additions as may be approved by Lender in writing. Projects. The word "Projects" means the construction projects as described in the "Projects Description' section of this Agreement. Projects Documents. The words "Project Documents" mean the Plans and Specifications, all studies, data and drawings relating to the Projects, whether prepared by or for Borrower, the Construction Contracts, and all other contracts and agreements relating to the Projects or the construction of the Improvements. Property. The word "Property" means the property as described in the "Projects Description" section of this Agreement. Real Property. The words 'Real Property" mean the real property to be transferred to the Lender pursuant to the Development Agreement, and the interests and rights, as further described In the "Projects Description" section of this Agreement. Reimbursement. The word "Reimbursement" means a disbursement of Loan amounts made, or to be made, to Borrower or on Borrower's behalf under the terms and conditions of this Agreement. Related Documents. The words 'Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Loan. 21 089 Security Agreement. The words "Security Agreement' mean and include without limitation any agreements, promises, covenants, arrant,,en'ents, understandings or other agreements, whether created by law, contract, or otherwise, evidencing, governing, representing, or creating a Security Interest. Security Interest. The words "Security Interest" mean, without limitation, any and all types of collateral security, present and future, whether in the form of a lien, charge, encumbrance, mortgage, deed of trust, security deed, assignment, pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever whether created by law, contract, or otherwise. BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS CONSTRUCTION LOAN AGREEMENT AND BORROWER AGREES TO ITS TERMS. LENDER: CITY OF AZUSA ro-• ' ' •MVJQ:ii AZUSA LAND PARTNERS, LLC IN 22 090 EXHIBIT A to the Construction Loan Agreement Projects Description 23 091 L G W Y A c (DLL g Lo o ma; LL P m E > t0 ffi E U• EE o y CL O U o =tl `tl G E O O m 5 c°�° � n CLO U Eg U g g and s n o a 2 > m wwo '� m t9�3 • n n O m O C O 9 V fG p 0 0 Q 0 0 0 O 0000 W f D O OI n p p O O t- ' 0 001 O O O O n O O O OC 0 0 0 000 G O O c o OOIn �i�i� �i cq cod ���� n n o am � m v o Ny Ol M O M 4J M F O f0 � 1019 1tl QD7 a°« a a LL U a 4 ei o g N '^ w � `v y O7 M O O O 1N+ O O O,.. O O O O ppQM p $ O O t D OOM 0 0 0 O O OCLS(� N n O O O O I pco G O ON O00^0C N OD V n 00 O anNt C UUUY m �Li fh r r h yy32 D .0 00 $.$$ 0OO rrr rr0S r , 0 0 0 0 88$$ 0 O 1 1 r SS Q W 0 N N NN O W L N O O M '4.0 Im p F G ZE 47 w O n O 0 D- -LL .4 LL. U O Z 00 O S(O p O SNO a p O O O PSA Op p O SS M1 pO O OD NN lV COV O V N r V m u 0 � c3 Cy N 0 D 0 2 O rg ���� �g � N, E ro� a aNN�2� 34yo� aE$3'j ��E to0� b � Oto O �p $�i O O O� O O O Mn Lr) , d O78 RICDO N O t O 07 N a C Fa" � O J W XG u 8 = W Z m 7 O7mO7 O]mmm Z Z Z Z Z Z Z m ZaaQQ di� LLy D mO7 W m ZQ W p y C d J MMMM MM OO QQ �LL KO_LL O F cz c N m V) D)V) L O (y) C .'G3 Y :2_ N W B Gy y L Gam' L. W M S C r N CyQ�� L`F�} Ol D� T L+ Oc0 ��12 0 GQN L C O W pp p TCc " C7 VCS lA b v `pp opQ g 8 _ Oa a m c g A 9 N r U' g� C7 U w O Cq N W VJ U WEy 5 O LL' t7 CJ V) W (9 U M V) �3 c� G7 d }s y m 7i lL O U V) y m G in CL a� SaQ •� 1", q d M a 2.. u, c c rz W W [J 092 a tq m ry N o Wp O !h O D q y/;Si 00 k w LL to 8 .- P O v O O pp CQ N Od a0 D0 0p 0v1 a0 CD p p S 'O O CO 0 O m a ��N u10i OM1 pp V M �O w N ai N w rn u chi eri f0 Cl C ry a n] M 00000 ogg� vi O O o N V 0 to 0 .j' N o oog 0 coo Oi O O ul C y M YON o 0 O 0 p NO GO 0 OD80 N O O ' CL O N h 01 N m m n a Q Q O O � .a O off �D ra 8 m_ m CmN c m m Cv gSX� 000 T m UUU m a o m m a' naa aE w H yEy�� �cp �cp -t N V m W U '!r W L Ci U U d'00 tococa �000Go ^0000 rai M ' 0 NhgV7 p1 QmN c r r m ry N o Wp O !h O D q y/;Si 00 k u� to <rpp. .- pp p a�00 41 O v O O pp CQ N Od a0 D0 0p 0v1 a0 CD p p S 'O O CO 0 O yp W r N� N ��N u10i OM1 pp V M �O w N ai N w rn u chi eri f0 Cl C ry a n] M 00000 ogg� vi O O o N V 0 to 0 .j' N o oog 0 coo Oi O O ul C y M YON o 0 O 0 p NO GO ' O ' OD80 N O O ' CL O N h 01 N Q Q OI R 1n f� O� O off �D 01 (. NNp N O Yi f0 Wp O !h O D 10^1 N y/;Si 00 k u� to <rpp. .- pp p a�00 41 O O O pp CQ N Od a0 D0 0p 0v1 a0 CD p p S 'O O CO 0 O yp W r N� N ��N u10i OM1 pp V M �O w N N 0 o CO N � N W� _Z F G O 2 u&aweoccoo oaeg W)00ae � a� ooooca GD� 1 $ O Q � O m V7 N d p C co m a0i E c rS+ !�U ar a a ca G' s atm r L M M O N 0931 9 mm, ME D1 O G 80 q in o D O0 N O Wlup 6 Pv a 4 j N C C w Lai k EE 0 n 0 O a E .0 m U vi G a 5oo'apc�>aL c ��o°� IT a w @ o€ C4� € N y► m a uwi a t N ld S- Cg N 7 y is fp d 09$ O Sel o W C F� w w a y N.EE p U C w c E NONl y� w C t O o'7� a �p 1�0 > E 0 �mv wa�cw2`o�w w c$mg88N�`�"Sm'rocao x^$ o :1 Mo ' in=3 Alz�°cgicnn0 z°zz Ca W w' 8888 C O O OO � u 00 W m m O O F U C O O_ m 1 .a° S LL'pa U Q m d O 0 0 0 0 O LO 0080 1000 U m N 'o 'o 'o ' 00 010 e o S S mti O�S� 0�0100HMOSH00800000 8 u b C 0 O O o p o o YI C h O o p N �O OMvi 0 ORmLO COO R00i 000 NOC o p^ h NN(DONO�DNNN aD 0�0ws�1 O N to D � F ON g O 0 c O N . rNi v p a Q M G C Ow S, 8 8 8 Ovi O 10888 O OOOOO OiOOofO'OoOiO0 0888SSS88S 0x o 10 0v ii o�ev to o .9----0 8vnU N WMNOW N 0 13U o p1 ; tu k �w 06 oaa� 0000 Oa �0 3Ea°3Y243"2'2���ago oo�0000 000 0000 o W z CL o U)No in E WG a m oo La JFJ N Ve 2 U) CL w mQ va na�z° 6 ~ y .v... T=F a�� ox �m S w w 8 a � �¢ 0oe �cy�y�o> 6�> lv d 32 .v..:.LL ?? • ��r :�ch""l* `z �:-r.=.::m-.:.•�:.�,• c m a y t io a c �" c j� �S 1010 a c $ 0 0 ami ca o p c.. n.:•� �vcgcy�3 �c�y�o A- I= o2�JJ Ow wwo2cwo�t, a�dmEg9o..2 a U O i= a o (n ac 0 w -, m w z G U H c9 w U a c� c7 U to rn � m d � • Y art r � {rt ■ Q Q ■ r r i 9 mm, EXHIBIT B to the Construction Loan Agreement Real Property description 24 0,95 ORAN GE\BHO LDEN\44842.3 EXHIBIT C to the Construction Loan Agreement Draw Agreement 25 NMI DRAW AGREEMENT THIS DRAW AGREEMENT (this "Agreement") is made as of , 2008, between AZUSA LAND PARTNERS, LLC, a Delaware limited liability company (the "Borrower") and THE CITY OF AZUSA, a public corporation, ("Lender") with reference to the following facts: R FCITA T .R A. Borrower is constructing several improvement projects ("Projects") as required by that certain Development Agreement by and between the Lender and Monrovia Nursery Company which was assigned to and assumed by the Borrower ("Development Agreement"). B. Work on the Projects has been initiated, but the Borrower now needs financing to complete the Projects. C. Financing for the Projects shall be provided to the Borrower by a loan from the Lender in the original principal amount of up to $5,000,000 ("Lender Loan"), which shall be evidenced by a Promissory Note ("Promissory Note"). D. The Lender Loan will be governed by the terms and conditions of a Construction Loari Agreement executed by the Borrower. E. Borrower shall be responsible, during the construction period, to provide funds if and as need to pay for cost overruns and contingencies not otherwise funded by other sources of construction financing, in accordance with the requirements and procedures of the Construction Loan Agreement. F. The Lender and Borrower desire to enter into this Agreement solely to provide for the disbursement of the Lender Loan. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Definitions. The following terms shall have the following meanings. Unless defined herein, capitalized terms shall have the meanings set forth in the Construction Loan Agreement. (a) "Category" shall mean any category of expense items shown on the Projects Budget. (b) "Construction Contracts" shall mean the construction contracts entered into between the Borrower and the Contractors, and all exhibits and attachments thereto, as the same may be amended from time to time with the prior consent of the Lender. 097 (c) "Construction Monitor" shall mean such person or entity as Lender may designate from time to time to inspect the construction of the improvements to be constructed for the Projects ("Improvements") and to perform other services with respect thereto on behalf of Lender. (d) "Contractors" shall mean the Contractors which have or will have a direct contractual relationship with the Borrower and are approved in writing by the Lender. (e) "Disbursement Request" shall have the meaning set forth in Section 2(b). (f) "Impositions" shall mean all (i) real estate and personal property taxes and other taxes and assessments, water and sewer rates and charges and all other governmental charges and any interest or costs or penalties with respect thereto and charges for any easement or agreement maintained for the benefit the real property of the Projects, if any, to be transferred to the Lender pursuant to the Development Agreement ("Real Property"), general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which, with respect to any of the foregoing, at any time may be assessed, levied or imposed upon the Real Property, or the rent or income received therefrom, or any use or occupancy thereof, and (ii) other taxes, assessments, fees and governmental charges levied, imposed or assessed upon or against Borrower or any of its properties. (g) "Lender" shall mean the City of Azusa, a public corporation, and any assignee of or successor to its rights, powers and responsibilities. (h) "Lender Documents" shall mean and include the Construction Loan Agreement, and all documents relating or attached to the Construction Loan Agreement, including without limitation, the Promissory Note. (i) "Plans" shall mean the final plans and specifications for the design, construction and equipping of the Improvements, representing complete construction documents as defined in the Development Agreement between the Borrower and the Lender, including all schematic and working drawings and, to the extent determined, designations of all manufacturers and model numbers of all equipment, as the same shall be approved by the Lender in accordance with this Agreement and the Lender Documents and as amended from time to time in accordance with this Agreement and the Lender Documents. 0) "Projects Budget' shall mean the development budget for the Projects approved by the Lender in writing, as amended from time to time with the approval of the Lender. (k) "Retainage" shall mean the retainage with respect to certain construction costs of the Improvements as provided in Section 5. Agreement. 2. Draw Procedures. (a) The Lender Loan proceeds shall be disbursed as provided in this 2 098 (b) In addition to satisfaction of any procedures required by the terms of the Lender Documents for each disbursement of funds, to request that the Lender authorize disbursement of the Lender Loan, the Borrower shall submit to the Lender a disbursement request ("Disbursement Request") on a Standard AIA Form G702 and G703 or such other disbursement request form that may be acceptable to the Lender, setting forth a detailed breakdown of the disbursement requested (the "Draw Summary"), including the requisition of the Contractors, not more frequently than once monthly. Concurrently with the Disbursement Request, Borrower shall also furnish to the Lender a copy of the Construction Monitor's inspection report or other documentation indicating the percentage of work complete pertaining to the Disbursement Request. Upon such request, the Lender may cause an inspection to be made of the progress of construction. If the Lender determines that construction is proceeding diligently in accordance with the Plans and otherwise in the manner required by this Agreement and if all conditions to such disbursement shall have been fulfilled, the Lender shall authorize the disbursement in a manner that has been mutually agreed to by the parties, on the basis of the pro rata percentage set forth in Section 5 of this Agreement. All disbursements shall be made approximately ten (10) days after receipt of all information required by the Lender to approve the requested disbursements. The Lender may also require verification of the information contained in the Disbursement Request by the Contractors, applicable subcontractors, the Construction Monitor, and may require separate lien waivers and releases from all Contractors and subcontractors covering all prior disbursements (except that lien waivers for the final disbursement shall cover all disbursements other than punchlist work). Notwithstanding the foregoing, each Disbursement Request shall be subject to the approval of the Lender, with respect to the Lender Loan, in accordance with this Agreement. (c) Borrower shall pay all reasonable costs and expenses incurred by the Lender hereunder upon demand by the Lender. After demand on the Borrower, the Lender may elect to authorize disbursements of the proceeds of the Lender Loan to pay, as and when due, any unpaid or unsatisfied fees, costs or other amounts owing hereunder to the Lender. (d) Borrower shall not agree to any change in the Plans without the consent of the Lender other than an individual change order which involves a budget adjustment of less than $25,000. (e) Any item in the Disbursement Request which is not specifically approved in the time set forth in this Section 2 shall be deemed disapproved. On the basis of the progress of the work performed on the Projects and the conditions precedent to making disbursements contained in the Lender Documents, the Lender may disapprove all or part of a requested disbursement. In the event the Lender disapproves any portion of the amount requested by Borrower in a Disbursement Request, the Lender shall promptly notify Borrower of the disapproved amount and the reason for such disapproval. (0 In the event any item shall be disapproved or deemed disapproved, the representatives of the Borrower and the Lender shall meet promptly and in good faith to attempt to resolve the matter to their mutual satisfaction. 3 099 3. I7isburseineiit Amounts. (a) The aggregate amount advanced for any Category shall be limited to the amount shown in the Projects Budget for such Category, taking into account any reallocation authorized by the Lender pursuant to this Agreement. (b) Subject to the terms of this Agreement, the Lender will authorize disbursements of the Lender Loan to defray actual and reasonable costs incurred and approved by the Lender and shown on the Projects Budget and labor performed on the Improvements and equipment and materials incorporated into the Improvements, since the date of the last disbursement less Retainage. 4. Cost Information. If the Borrower becomes aware of any change in the approved costs set forth in the Projects Budget which would increase, change, or cause a reallocation of the costs as shown on the Projects Budget, the Borrower shall immediately notify the Lender in writing and promptly submit a proposed revised Projects Budget to the Lender for approval. The Borrower shall have no right to receive further disbursements of the Lender Loan unless and until the revised Projects Budget is approved by the Lender, which approval shall not be unreasonably withheld but shall be subject to, among other things, the next sentence. 5. Conditions Precedent to Draw. The Lender shall determine whether or not the conditions precedent to its obligation to advance its loan have been satisfied or whether or not to waive, in its sole discretion, any condition precedent to its obligation to advance the Lender Loan which the Lender City Manager, or designee, determines has not been satisfied. As conditions precedent to approval of any Disbursement Request, each of the following conditions shall have been fulfilled to the satisfaction of the Lender, as applicable: (a) All representations and warranties contained in this Agreement and the Lender Documents shall be true and correct in all material respects; (b) All insurance coverage required to be maintained by the Borrower under the Lender Documents or by law shall be in full force and effect; (c) The Lender Documents shall be in full force and effect; (d) No Event of Default under the Lender Documents shall have occurred and be continuing; (e) Except to the extent waived the Lender City Manger, or designee, in their sole discretion, all governmental consents, licenses, permits and all other authorizations or approvals then required with respect to the construction of the Projects shall have been obtained and/or issued, or will be timely obtained; (f) The Lender shall have received copies of notarized partial lien waiver forms executed by the Contractors and each appropriate subcontractors, supplier and materialman, including, without limitation, from all parties sending statutory notices to Contractors, notices to owners, or notices of nonpayment, specifying in each such partial lien waiver the amount paid in consideration of such partial release; 0 (g) Before any disbursements after the initial disbursement, the Borrower shall furnish to Lender a list (if not previously delivered) of all subcontractors employed in connection with the construction of the Projects, containing the name, address, and telephone number of each such subcontractors, a general statement of the nature of the work to be done, the labor and materials to be supplied, the names of new materialmen, if known, and the approximate dollar value of such labor or work with respect to each. Lender shall have the right to make direct contact with each subcontractors and materialmen to verify the facts disclosed by said list or for any other purpose; (h) Copies of invoices or other acceptable documentation shall be submitted to substantiate Borrower's request for payment of construction costs, including "soft costs"; (i) Lender shall have received a copy of the Construction Monitor's approval of Borrower's requisition for "hard costs"; Disbursements of the Lender Loan will be made on the basis of ninety percent (90%) of the cost of the work and materials in place on the Improvements, less the amount of previous disbursements. The percentage of disbursements held back during the course of construction of the Improvements shall be hereinafter referred to as "Retainage". There shall be no Retainage for the non -construction items and such disbursements will be made on the basis of one hundred percent (100%) of the cost of approved invoices for such items. However, disbursement for amounts shown in the Projects Budget, as construction profits shall be funded based on the percentage of construction completed. Disbursements will be made for materials stored on the Land provided (i) such materials are adequately identified, secured and insured; (ii) no materials are stored for a period exceeding forty-five (45) days; (iii) the Lender has a first priority lien on such materials; and (iv) the Lender has received and approved all invoices for materials to be stored on-site. No disbursement of the Lender will be made based on the cost of materials not stored on the Land (other than in accordance with Section 7) or for the cost of deposits required by manufacturers or fabricators of building materials, furnishings, fixtures or equipment for the Improvements. 6. Conditions Precedent to Final Disbursement. Subject to any additional conditions set forth in the Lender Documents, the following conditions shall be satisfied prior to the final disbursement of the Lender Loan and the Retainage: (a) All conditions of Section 5 shall continue to be met as of the date of the release of the final disbursement and the Retainage; (b) Lender shall have received a certificate of Borrower and Contractors to the effect, inter alia, that the Improvements have been completed substantially in accordance with the Plans approved by the Lender and all applicable building, fire, safety and similar codes and the matters in such certificate shall have been verified by the Construction Monitor; (c) Lender shall have received evidence that all Impositions which are due and payable for the current tax year have been paid in full; 101 (d) Lender shall have received final lien releases and waivers from the Contractors and all subcontractors for the work performed under the Construction Contract; (e) Lender shall have received two (2) sets of detailed as -built plans and specifications for the Improvements. The plans shall be approved as such in writing by the Borrower and the Contractors. The Plans must include plans and specifications for architectural, structural, mechanical, plumbing, electrical and site development work (including storm drainage, utility lines and landscaping); and (f) Lender shall have received a copy of a satisfactory inspection report from the Construction Monitor and the Construction Monitor's written approval of the final draw request; 7. Draws for Stored Materials. Notwithstanding anything to the contrary contained in this Agreement, Borrower shall be entitled to submit a Disbursement Request to pay for costs actually incurred by Borrower for stored materials required in connection with the construction of the Improvements provided that the following conditions are satisfied, in addition to the conditions contained in Section 5: (i) such materials are in accordance with the Plans, (ii) such materials are securely stored in a locked or fenced area, properly inventoried, fully insured and clearly stenciled or otherwise marked to indicate that they are the property of Borrower, and if stored on-site shall be stored in a locked building or enclosure and reference is made to the location of such materials, (iii) such materials, if stored off-site, shall be stored in a bonded warehouse or with a Contractors, materialman or fabricator who bears the risk of loss until delivery and installation of such materials to the Land as part of the work in place, and who has supplied a bond securing such contractor's, materialman's, or fabricator's obligation to so deliver and install such materials, which bond shall be issued by a company, shall be in an amount and shall be in form and substance satisfactory to the Lender and shall name Lender as an obligee, and Borrower shall submit such financial information on the storer as the Lender may require, (iv) the bills of sales and contracts under which such materials are being provided shall be in form and substance satisfactory to the Lender; (v) such materials are insured against casualty, vandalism, loss and theft in a manner satisfactory to the Lender, (vi) Borrower owns, or will own with the funding of the Disbursement Request, such materials free and clear of all liens and encumbrances of any nature whatsoever and establishes such ownership by evidence satisfactory to the Lender, (vii) Borrower executes and delivers to the Lender such additional security documents as the Lender shall deem necessary to create and perfect a first lien in such materials in favor of the Lender, (viii) the aggregate amount of disbursements for costs incurred by Borrower for such materials shall in no event at any time exceed the actual costs incurred by Borrower for such materials as verified by the Construction Monitor pursuant to the provisions of this Agreement, (ix) the types of materials for which the Lender will approve of the making of disbursements pursuant to this paragraph shall be limited to the following categories: hardware, railings, security screens and grating, electrical equipment, lumber, masonry brick, pre -cast concrete, doors, windows, and plumbing fixtures and (x) Borrower shall submit evidence satisfactory to the Lender that the materials, whether stored on-site or off-site are insured against damage or destruction for their full replacement value, and the Lender shall be designated as the loss payee on such insurance policies. 6 102 8. hotiecs. Any and all notices, demands or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party only (a) if served personally, (b) if deposited in the United States first class mail, certified or registered, postage prepaid, or (c) if sent by overnight delivery service and a confirmation of receipt is obtained. If such notice, demand or other communication is served personally, service shall be conclusively deemed made at the time of such personal service. If such notice, demand or other communication is given by mail, such shall be conclusively deemed given seventy-two (72) hours after the deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given at the following address set forth below. If such notice, demand or other communication is sent by overnight delivery service, such shall be conclusively deemed given at the time confirmation of receipt is obtained, provided the overnight delivery is addressed to the party to whom such notice, demand or other communication is to be given at the address set forth below. If to the Borrower: with copies to: If to the City of Azusa: City Manager P.O. Box 1399 Azusa, CA 91702 With a copy to: Director of Utilities P.O. Box 9500 Azusa, CA 91702 Best Best & Krieger LLP 5 Park Plaza Suite 1500 Irvine, CA 92614 7 103 Any party hereto may change its address for the purpose of receiving notices, demands and other communications as herein provided by a written notice given in the manner aforesaid to the other party or parties hereto. 9. Governing Law. This Agreement shall be governed by, and construed in accordance with, the substantive laws of the State of California without regard to principles of conflicts of laws. 10. Headings. The headings used herein are for convenience only and do not limit or alter the terms of this Agreement or in any way affect the meaning or interpretation of this Agreement. 11. Successors and Assigns. All rights of each party shall inure to the benefit of its successors and assigns, and all obligations, liabilities, and duties of each party shall bind its successors and assigns. 12. Entire Agi-cement• Amendment and Modification. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, supersedes all prior agreements and understandings, both written and oral, between the parties in respect of the subject matter hereof and no changes, amendments, or alterations hereto shall be effective unless pursuant to written instrument executed by the Borrower and the Lender. Notwithstanding the foregoing sentence or any other provision of this Agreement, this Agreement does not supersede and shall not be deemed to amend any of the Lender Documents. Borrower and Lender anticipate modifications and supplements to this Agreement from time to time, in writing, signed by the Lender City Manager or designee, and the Borrower. 13. No Waiver of Strict Compliance. No waiver or failure of a party to insist upon strict compliance with any obligation, covenant, agreement, representation, warranty, or condition shall operate as a waiver of, or estoppel with respect to, any subsequent or other failure to comply with such obligation, covenant, agreement, representation, warranty, or condition, or with any other obligation, covenant, agreement, representation, warranty, or condition contained herein. Failure to exercise any right, power, or remedy shall not constitute a waiver of any obligations under this Agreement or constitute a modification of this Agreement. The making of this Agreement shall not waive or impair any other security a party may have or hereafter acquire for the payment of obligations under this Agreement, and the taking of any additional security it may have in the order it may deem proper. 14. Validity.. The invalidity or unenforceability of any terms or provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect, and, if any such unenforceable provision hereof is enforceable in any part or to any lesser extent, such provision shall be enforceable in all such parts and to the greatest extent permissible under applicable law. 15. Supervision of Construction. The Lender shall be under no obligation to perform any of the construction or complete the construction of the improvements on the �3 104 Property, or to supervise any construction on the Property, and shall not be responsible for inadequate or deficient Contractors, subcontractors, materials, equipment or supplies. The Lender is not the agent for Borrower, nor is the Lender a partner or joint venturer with Borrower. The Lender shall not have any fiduciary duty or obligation to the Borrower. 16. Reservation of Rights. Nothing contained herein shall be construed as restricting, limiting, amending or modifying the rights of the parties in the Lender Documents, as they relate to defaults or remedies, including, inter alia, the right of each party under its respective security instruments to foreclose on the Property, or to seek recourse under any guaranties. 17. Termination of Agreement. This Agreement shall terminate when all of the Lender Loan has been fully disbursed. 18. Further Assurances. The parties hereto hereby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Agreement. 19. C0LJ11te1-J711'tS. This Agreement may be signed by each party on a separate signature page, and when the executed signature pages are combined, shall constitute one single instrument with the same effect as if all signatories had executed the same instrument. IN WITNESS WHEREOF, each party has executed this Agreement on the date first hereinabove written. AZUSA LAND PARTNERS, LLC, a Delaware limited liability corporation By: PLC LAND COMPANY a California corporation Wa Dan O'Bannon, Vice President By: FIELDSTONE COMMUNITIES wo Executive Vice President THE CITY OF AZUSA By: City Manager 9 105 ORANGE\BHOLDEN\44835.4 10 106 PROMISSORY NOTE $5,000,000 Azusa, California , 2008 1. FUNDAMENTAL PROVISIONS. The following terms will be used as defined terms in this Promissory Note (as it may be amended, modified, extended and renewed from time to time, this "Note"): Lender/Payee: CITY OF AZUSA, or the holder of this Note. Borrowers/Makers: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company. Principal Amount: FIVE MILLION DOLLARS ($5,000,000). Interest Rate: No interest will be charged, except that in an Event of Default, the Lender may apply the Default Interest Rate to the Principal Amount outstanding as of the date of the default. Default Interest Rate: Five percent (5.00%) per annum above the Prime Rate. Maturity Date: The sooner of (a) 180 days from the date of this Note or (b) [completion of the improvements? — need Development Agreement language] unless the Maturity Date is accelerated as otherwise provided in this Note. Business Day: Any day of the year other than Saturdays, Sundays or any other day on which national Lenders are authorized or required to close. Loan Documents: The Construction Loan Agreement, the Note, the Draw Agreement, all other documents securing the repayment of the Note, guaranties, indemnity agreements and instruments executed by the Borrower and/or guarantor and/or indemnitor. Loan: The loan from Lender to Borrower in the Principal Amount and evidenced by this Note and/or the Loan Documents. Prime Rate Means the variable rate of interest per annum established by the Bank of America from time to time as its United States "prime rate." Such "prime rate" is set by Bank of America as a general reference rate of interest, taking into account such factors as Bank of America may deem appropriate, it being understood that many of Bank of America commercial or other loans are priced in relation to such rate, i Loan No. 107 that it is not necessarily the lowest or best rate actually charged to any customer and that Bank of America may make various commercial or other loans at rates of interest having no relationship to such rate. For purposes of this Note, the Prime Rate shall be the Prime Rate as of the opening of business on the date established as the effective date of any change in such "prime rate." Construction Loan Agreement: That certain Construction Loan Agreement of even date herewith between Borrower, as Borrower, and Lender. Advance: Any disbursement of Loan proceeds by Lender pursuant to the terms and provisions of this Note and/or any disbursement made pursuant to any of the Loan Documents. 2. PROMISE TO PAY. For value received, Borrower promises to pay to the order of Lender, at its office at or at such other place as the Lender hereof may from time to time designate in writing, the Principal Amount or the aggregate unpaid principal amount of all Advances made by Lender to the undersigned from time to time and remaining outstanding on the Maturity Date, whichever is less, together with accrued interest from the date of disbursement on the unpaid principal balance at the Interest Rate or the Default Interest Rate if applicable. 3. -INTEREST; PAYMENTS. (a) Absent an Event of Default hereunder or under any of the Loan Documents, each Advance made hereunder shall bear no interest. Throughout the term of this Note, interest assessed in the Event of Default shall be calculated on a 360 -day year with respect to the unpaid balance of the Principal Amount and, in all cases, shall be computed for the actual number of days elapsed. (b) All payments of principal and interest due hereunder shall be made (i) without deduction of any present and future taxes, levies, imposts, deductions, charges or withholdings, which amounts shall be paid by Borrower, and (ii) without any other set off, claim or defense or any kind or nature. (c) Payment of all unpaid principal, interest, and any other amounts due hereunder are due and payable on the Maturity Date. If any payment of principal and interest to be made by Borrower hereunder shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day. 2 Loan No, 108 4. PREPAYMENT. time. (a) Borrower may prepay the Loan, in whole or in part, at any time and from time to (b) In no event shall Borrower be entitled to re -borrow any amounts prepaid. 5. LAWFUL MONEY. Principal and interest are payable in lawful money of the United States of America. 6. APPLICATION OF PAYMENTS/LATE CHARGE. (a) Unless otherwise agreed to, in writing, or otherwise required by applicable law, payments will be applied first to accrued, unpaid interest, then to any unpaid collection costs, late charges and other charges, and any remaining amount to principal, provided, however, during the continuance of an Event of Default, as herein or in any other Loan Document, Lender reserves the right to apply payments among principal, interest, late charges, collection costs and other charges in such order of priority as Lender shall from time to time determine in its sole discretion. All prepayments shall be applied to the indebtedness owing hereunder in such order and manner as Lender may from time to time determine in its sole discretion. (b) If any payment of interest and/or principal is not received by the holder hereof within ten (10) days of when such payment is due, then in addition to the remedies conferred upon the holder hereof pursuant to the provisions of this Note and/or the Loan Documents, a late charge of five percent (5%) of the amount of the payment due will be due and owing by the Borrower and will be added to the delinquent amount to compensate the holder hereof for the costs, expenses, and damages of the holder related to the delinquency of the Borrower in making such payment, regardless of any notice and/or cure periods (if any). Acceptance of any late charge will not constitute a waiver of default with respect to the overdue payment, and will not prevent or delay Lender from exercising any of its rights or remedies available under this Note and/or the Loan Documents. (c) Upon the occurrence, and during the continuance, of an Event of Default, including the failure to pay upon final maturity, Lender, may at its option and in its sole discretion: (i) increase the applicable Interest Rate on this Note to the Default Interest Rate, and/or (ii) add any unpaid accrued interest to principal and such sum will bear interest therefrom until paid at the Default Interest Rate. The undersigned acknowledges that, during the time that any amount is in default, Lender will incur losses that are impracticable, costly, and inconvenient to ascertain. Those losses include, without limitation, the ability to invest amounts then due at the current rate of return and the unavailability of liquid funds. The undersigned agrees that the interest payable hereunder represents a reasonable sum considering all of the circumstances existing on the date of the execution of this Note and represents a reasonable estimate of the losses Lender will incur by reason of late payment. The undersigned further agrees that proof of actual losses would be costly, inconvenient, impracticable, and extremely difficult to fix. 3 109 Loan No. V Acceptance of the interest will not constitute a waiver of the default with respect to the overdue installment and will not prevent Lender from exercising any of the other rights and remedies available under this Note and/or the Loan Documents. Notwithstanding anything contained herein, the interest rate will not exceed the maximum rate permitted by applicable law. 7. SECURITY. This Note is secured, among other security, by the Collateral as that term is defined in the Loan and Security Agreement. EVENTS OF DEFAULT. The occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) default in the payment of principal and/or interest, and/or any other sum advanced by Lender pursuant to the terms and provisions of this Note and/or the Loan Documents; and/or (b) if any event occurs that is an Event of Default under any of the Loan Documents; and/or (c) Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents; and/or (d) Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the indebtedness or any guarantor, endorser, surety or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by the Note; and/or (e) The resignation or expulsion of any member with an ownership of twenty percent (20%) or more in Borrower. 9. REMEDIES Upon the occurrence, and during the continuance, of an Event of Default, then at the sole election and option of the holder hereof, the entire balance of principal together with all accrued interest thereon, and all other amounts payable by Borrower under the Loan Documents shall, without demand or notice, immediately become due and payable. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal hereof, together with all accrued interest thereon, all other amounts due under the Loan Documents, and any judgment for such principal, interest, and other amounts due under the Loan Documents shall bear interest at the Default Interest Rate, subject to the limitations contained in Section 14 hereof. No delay or omission on the part of the holder hereof in exercising any right 4 Loan No. 110 or remedy under this Note and/or under any of the other Loan Documents hereof shall operate as a waiver of such right. 10. WAIVER. Borrower hereby waives diligence, demand for payment, presentment for payment, protest, notice of nonpayment, notice of protest, notice of intent to accelerate, notice of acceleration, notice of dishonor, and all other notices or demands of any kind (except notices specifically provided for in the Loan Documents, if any). Borrower waives to the full extent permitted by law, the right to plead any and all statutes of limitations and/or any defenses relating to marshaling of assets as a defense. 11. CHANGE, DISCHARGE, TERMINATION, OR WAIVER. No provision of this Note may be changed, discharged, terminated, or waived except in a writing signed by the party against whom enforcement of the change, discharge, termination, or waiver is sought. No failure on the part of the holder hereof to exercise and no delay by the holder hereof in exercising any right or remedy under this Note and/or the Loan Documents and/or under the law shall operate as a waiver thereof. 12. ATTORNEY'S FEES. The undersigned agrees to pay all reasonable costs including, without limitation, reasonable attorney fees, incurred by the holder of this Note in enforcing payment, whether or not suit is filed, including, without limitation, all costs, attorney fees, and expenses incurred by the holder of this Note in connection with any bankruptcy, reorganization, arrangement, or other similar proceedings involving the undersigned that in any way affects the exercise by the holder of this Note of its rights and remedies under this Note. All costs incurred by the holder of this Note in any action undertaken to obtain relief from the stay of bankruptcy statutes are specifically included in those costs and expenses to be paid by the undersigned. Borrower will pay to Lender all attorney fees and other costs referred to in this Section 12 on demand, together with interest from the date of the demand at the Default Interest Rate until paid. 13. SEVERABILITY. If any provision of this Note is unenforceable, the enforceability of the other provisions shall not be affected and they shall remain in full force and effect. 14. INTEREST RATE LIMITATION. Borrower hereby agrees to pay an effective rate of interest that is the sum of the interest rate provided for herein, together with any additional rate of interest resulting from any other charges of interest or in the nature of interest paid or to be paid in connection with the Loan, including, without limitation, and any fees to be paid by Borrower pursuant to the provisions of the Loan Documents. Lender and Borrower agree that none of the terms and provisions contained herein s Loan No. 111 or in any of the Loan Documents shall be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum interest rate permitted to be charged by the laws of State of California. In such event, if any holder of this Note shall collect monies which are deemed to constitute interest which would otherwise increase the effective interest rate on this Note to a rate in excess of the maximum rate permitted to be charged by the laws of the State of California, all such sums deemed to constitute interest in excess of such maximum rate shall, at the option of the holder, be credited to the payment of other amounts payable under this Note and/or the Loan Documents or returned to Borrower. 15. NUMBER AND GENDER. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa. 16. HEADINGS. Headings at the beginning of each 'numbered section of this Note are intended solely for convenience and are not part of this Note. 17. CHOICE OF LAW; VENUE. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES. ANY DISPUTE INVOLVING ANY ISSUE REGARDING THIS NOTE MAY BE HEARD IN ANY APPROPRIATE COURT LOCATED IN EITHER ORANGE COUNTY, CALIFORNIA OR LOS ANGELES COUNTY, CALIFORNIA. 18. INTEGRATION. The Loan Documents contain the complete understanding and agreement of the holder hereof and Borrower and supersede all prior representations, warranties, agreements, arrangements, understandings, and negotiations. 19. BINDING EFFECT. The Loan Documents will be binding upon, and inure to the benefit of, the holder hereof, Borrower, and their respective successors and assigns. Borrower may not assign its obligations under the Loan Documents. 20, TIME OF THE ESSENCE. Time is of the essence with regard to each provision of the Loan Documents as to which time is a factor. 6 Loan No. 112 21. SURVIVAL. The representations, warranties, and covenants of the Borrower in the Loan Documents shall survive the execution and delivery of the Loan Documents and the making of the Loan. 22. JURY WAIVER. TO THE EXTENT PERMITTED BY LAW BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON OONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWER AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS NOTE OR ANY OTHER RELATED DOCUMENT OR LOAN DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS. 23. JOINT AND SEVERAL OBLIGATIONS. If this Note is signed by more than one party as Borrower, all obligations of Borrower herein shall be the joint and several obligations of each party executing this Note as Borrower. IN WITNESS WHEREOF, Maker has caused this Note to be properly executed as of the date first above written and have authorized this Note to be dated as of the day and year first above written. "BORROWER" AZUSA LAND PARTNERS, LLC, a Delaware limited liability company 13y: L -On O RANGE\B HO LDEN\44 8 51.2 7 t. Loan No. ... ... .. ...... ...... ......... ... . ......... ...... ... .... ........... ...... ... ... ... ...... ... ...... ...... ...... ... ......... ... ... ...... ... ... ... ... ... ...... ...... ... ........ ...... ... ... ...... ... .......... ... ... ... ... ... ... ... ......... ... ... ... ... ... ... ...... ... ... ... ... ... ...... ... ... ... ... ... ......... ... ... ... ... ... ... ... ... ... ... ...... ...... ... ...... ... ... ... ... ... ... ... . ... ... ... ... ........ ... .. ........... ... ... ... ...... ... ...... ... ... . . . ..... . . . ...... ...... ...... ... ........ ... ... ... ... ... ... ........ ... ... ... ... ... ... ... ... ... ... ...... . . ... ..... ............. ...... ......... ...... ... ... ... ...... ... ....... ...... ... .... ... ... ... ... ... ..... ... ... .. ...... ... ... ...... ......... ...... ... ... ... ...... ... ... ... ... ... ... ... .... ... ... ... ... ... ... .. ... ... ... ... ... ... ......... ...... ........... ... ......... . ... ... ... ...... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... ... ... ... ......... ... ... ... ... ... ... ... ...... ... ... C. ... ... ... ... ... ... ... ........ ... ... ... ... ........ ... ...... ... ... ... ... ... ...... ... ...... ..... ...... ...... .... ... ... ... .. ... ... ... ... ...... ... ... ... ...... ...... ... ............ ... ........ ... ...... ...... ... ... ... ........ ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ............. ... ...... ... ... ...... ... ... ........ ...... ... ... ... ... ... ... ... ..... .... ...... ...... ... ... ... ..... ... ... ........ ... ...... ... ...... ... ... ....... ... ...... ...... ... ... ... ......... ......... .. ... ...... ...... ... ... .... ... ...... ...... G. ... ........ ... ... ........... ...... ...... ...... ... ......