Agreement - Form of Borrower Loan — San Jose City Council, April 14, 2026

KR DRAFT – 4/2/2026

BORROWER LOAN AGREEMENT
by and between
BERRYESSA AFFORDABLE HOUSING, L.P.
and

CITY OF SAN JOSE
Dated as of [May] 1, 2029
Relating to:
$[APRINAMT]
CITY OF SAN JOSÉ
MULTIFAMILY HOUSING REVENUE NOTE, SERIES 2029A
(BERRYESSA TOD)
and
$[BPRINAMT]
CITY OF SAN JOSÉ
MULTIFAMILY HOUSING REVENUE NOTE, SERIES 2029B
(BERRYESSA TOD)
The interests of the City of San José (the “Governmental Lender”) in this Borrower Loan Agreement (except for the Reserved Rights) have been pledged and assigned to Deutsche Bank Securities Inc., as funding lender (the “Funding Lender”), under that certain Funding Loan Agreement of even date herewith, by and among the Governmental Lender, the Fiscal Agent and the Funding Lender, under which the Funding Lender is originating a loan or loans to the Governme ntal Lender the proceeds of which are to be used to fund the Borrower Loan made under this Borrower Loan Agreement. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

TABLE OF CONTENTS
ARTICLE 1

DEFINITIONS
2 Section 1.1 Definitions ....................................................................................................... .................. 2 Section 1.2 Rules of Cons truction; Time of Day .................................................................................. 2 ARTICLE 2

LOAN AND PROVISIONS FOR REPAYMENT
2 Section 2.1 Basic Loan and Repayment Terms .................................................................................... 2 Section 2.2 Fees .............................................................................................................. ...................... 3 Section 2.3 Termination and Prepayment ........................................................................................ ..... 4 Section 2.4 Obligations Absolute .............................................................................................. ........... 4 Section 2.5 Indemnification ................................................................................................... ............... 5 Section 2.6 Amounts Remaining on Deposit Upon Payment of the Governmental Notes ................... 7 ARTICLE 3

SECURITY
8 Section 3.1 Mortgage and Other Funding Loan Documents ................................................................ 8 Section 3.2 Financing Statements .............................................................................................. ........... 8 Section 3.3 Internal Revenue Service Examination .............................................................................. 8 ARTICLE 4

REPRESENTATIONS AND LIMITED LIABILITY OF GOVERNMENTAL LENDER 8 Section 4.1 Representations by the Governmental Lender ................................................................... 8 Section 4.2 No Liability of Governmental Lender; No Charge Against Governmental Lender’s Credit .................................................................................................................. 9 Section 4.3 Nonrecourse Obligation of the Governmental Lender ..................................................... 11 Section 4.3 Waiver of Personal Liability ...................................................................................... ...... 11

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF THE BORROWER
12 Section 5.1 Existence ......................................................................................................... ................. 12 Section 5.2 Power, Authorization and No Conflicts ........................................................................... 1 2 Section 5.3 Governmental Authori zations and Other Approvals ....................................................... 13 Section 5.4 Validity and Binding Effect ....................................................................................... ...... 13 Section 5.5 No Litigation .................................................................................................................... 13 Section 5.6 No Violations ..................................................................................................... .............. 13 Section 5.7 Compliance ........................................................................................................ .............. 14 Section 5.8 Title to Properties; Liens and Encumbrances .................................................................. 14 Section 5.9 Utilities and Access .............................................................................................. ........... 14 Section 5.10 Financ ial Information ............................................................................................ .......... 14 Section 5.11 ERISA ............................................................................................................ .................. 15 Section 5.12 Environmental Representations .................................................................................... ... 15 [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

ii
Section 5.13 Outstanding Obligations and Material Contracts ............................................................. 16 Section 5.14 Solvency.......................................................................................................... ................. 16 Section 5.15 Full Disclosure .................................................................................................. ............... 16 Section 5.16 Funding Loan Documents ........................................................................................... ..... 16 Section 5.17 Illegal Activity ................................................................................................. ................ 16 Section 5.18 Executive Order 13224 ............................................................................................ ........ 17 Section 5.19 No Broker ........................................................................................................ ................ 17 Section 5.20 [Reserved] ....................................................................................................... ................. 17 Section 5.21 [Reserved] ....................................................................................................... ................. 17 Section 5.22 [Reserved] ....................................................................................................... ................. 17 Section 5.23 As-Built Survey .................................................................................................. ............. 17 Section 5.24 Flood Plain ...................................................................................................... ................. 17 Section 5.25 [Reserved] ....................................................................................................... ................. 17 Section 5.26 Rent Roll ........................................................................................................ .................. 17 ARTICLE 6

GENERAL COVENANTS
18 Section 6.1 Conduct of Business; Mainte nance of Existence; Mergers ............................................. 18 Section 6.2 Compliance with Legal Requi rements; Payment of Impositions ..................................... 18 Section 6.3 Maintenance of Gove rnmental Authorizations ................................................................ 18 Section 6.4 Maintena nce of Insurance ................................................................................................ 18 Section 6.5 Compliance with Other Contracts and Funding Loan Documents .................................. 19 Section 6.6 Maintenance of Project Facilities ..................................................................................... 20 Section 6.7 Inspection Rights ................................................................................................. ............ 20 Section 6.8 Keeping of Books ............................................................................................................ 21 Section 6.9 Reporting Requirements ............................................................................................ ...... 21 Section 6.10 Tax-Exempt Status ................................................................................................ ........... 23 Section 6.11 Single Purpose Entities .......................................................................................... .......... 26 Section 6.12 Negative Pledge; No Sale ......................................................................................... ....... 27 Section 6.13 Payment of Indebtedness; Accounts Payable; Restrictions on Indebtedness ................... 27 Section 6.14 Environmental Covenants .......................................................................................... ...... 28 Section 6.15 Servicer ......................................................................................................... ................... 29 Section 6.16 Tax Returns ...................................................................................................... ................ 30 Section 6.17 Leases ........................................................................................................... ................... 30 Section 6.18 Further Assurances ............................................................................................... ........... 30 Section 6.19 Management Agreement ............................................................................................. ..... 30 Section 6.20 Determin ation of Taxability ............................................................................................. 31 Section 6.21 Provision of Annual Reports; Reporting of Material Events ........................................... 31 Section 6.22 Use of Proceeds .................................................................................................. ............. 33 Section 6.23 Compliance With An ti-Terrorism Regulations ................................................................ 33 Section 6.24 Adoption of Capita l and Operating Budgets .................................................................... 33 Section 6.25 Borrower’s Approval of Funding Loan Agreement ......................................................... 34 Section 6.26 Conditions Precedent; Payment of Certain Fees, Deposits and Expenses ....................... 34 Section 6.27 Loan Rebalancing ................................................................................................. ........... 34 Section 6.28 No Amendments .................................................................................................... .......... 35 Section 6.29 [Reserved] ....................................................................................................... ................. 35 Section 6.30 [Reserved] ....................................................................................................... ................. 35 Section 6.31 [Reserved] ....................................................................................................... ................. 35 Section 6.32 [Reserved] ....................................................................................................... ................. 35 Section 6.33 [Reserved] ....................................................................................................... ................. 35 [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

iii
Section 6.34 Special Servicing Costs .......................................................................................... ......... 35 Section 6.35 Non-discrimination ............................................................................................... ........... 35 Section 6.36 Drilling at Property ............................................................................................. ............. 35 ARTICLE 7

DEFAULTS AND REMEDIES
35 Section 7.1 Defaults .......................................................................................................... .................. 35 Section 7.2 Remedies .......................................................................................................... ................ 38 Section 7.3 No Waivers; Consents .............................................................................................. ....... 39 Section 7.4 No Waiver; Remedies Cumulative .................................................................................. 39 Section 7.5 Set-Off ........................................................................................................... .................. 39 Section 7.6 Governmental Lender and Borro wer to Give Notice of Default...................................... 39 Section 7.7 Cure by Tax Credit Investor and/or Special Limited Partner .......................................... 40 Section 7.8 Default Rate ; Acceleration Premium ............................................................................... 40 Section 7.9 Reserved Rights; Regul atory Agreement Defaults .......................................................... 40 ARTICLE 8

DEPOSITS
41 Section 8.1 Deposits to and Disbursements from the Replacement Reserve Fund ............................ 41 Section 8.2 Deposits to Tax and Insurance Escrow Fund ................................................................... 41 Section 8.3 Deposits to Prepayment Fund ....................................................................................... ... 42 Section 8.4 Deposits to Op erating Reserve Fund ............................................................................... 42 Section 8.5 Deposits to Pr oject Revenue Account .............................................................................. 42 Section 8.6 Investment ........................................................................................................ ................ 43 Section 8.7 Security In terest in Accounts ........................................................................................... 43 Section 8.8 Reports ........................................................................................................... .................. 43 Section 8.9 No Liability of Fiscal Agent ...................................................................................... ...... 43 ARTICLE 9
[RESERVED]
43 ARTICLE 10

MISCELLANEOUS
44 Section 10.1 Notices .......................................................................................................... ................... 44 Section 10.2 Successors and Assigns; Third Party Beneficiaries ......................................................... 44 Section 10.3 Survival of Covenants ............................................................................................ .......... 44 Section 10.4 Counterparts; Electronic Signature ............................................................................... ... 44 Section 10.5 Costs, Expenses and Taxes .............................................................................................. 44 Section 10.6 Severability; Interest Limitation ................................................................................ ...... 44 Section 10.7 Conflicts ........................................................................................................ ................... 45 Section 10.8 Complete Agreement ............................................................................................... ........ 45 Section 10.9 Consent to Jurisdiction; Venue; Waiver of Jury Trial ..................................................... 45 Section 10.10 Governing Law ................................................................................................... ............. 45 Section 10.11 Headings ........................................................................................................ .................. 46 Section 10.12 Sale of Governmental Note s and Secondary Market Transaction ................................... 46 Section 10.13 Nonrecourse ..................................................................................................... ................ 48 Section 10.14 Publicity ....................................................................................................... .................... 52 [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

iv
Section 10.15 Determinations by the Fu nding Lender and Servicer ...................................................... 52 Section 10.16 Further Assurances .............................................................................................. ............ 52

EXHIBIT A FORM OF SERIES 2029A BORROWER NOTE ............................................. A-1 EXHIBIT B FORM OF SERIES 2029B BORROWER NOTE ............................................. B-1 EXHIBIT C MOISTURE DISCLOSURE STATEMENT ..................................................... C-1

SCHEDULES
SCHEDULE 1 SCHEDULE OF LITIGATION ....................................................................... S1-1 SCHEDULE 2 SCHEDULE OF OBLIGATIONS AND MATERIAL CONTRACTS ........... S2-1 SCHEDULE 3 SCHEDULE OF DEBT SERVICE PAYMENTS ........................................... S3-1 SCHEDULE 4 DEVELOPMENT BUDGET ........................................................................... S4-1 SCHEDULE 5 FORM OF STABILIZATION CERTIFICATE .............................................. S5-1 SCHEDULE 6 ANNUAL EXPENSES .................................................................................... S6-1 SCHEDULE 7 INSURANCE REQUIREMENTS ................................................................... S7-1 [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

BORROWER LOAN AGREEMENT
This BORROWER LOAN AGREEMENT (as amended, modified or supplemented from time to time, this “Agreement”) made as of [May] 1, 2029, by and between the CITY OF SAN JOSE, a municipal corporation and charter city, organized and existing under the laws of the State of California (together with its successors and assigns, the “Governmental Lender”), and BERRYESSA AFFORDABLE HOUSING, L.P., a limited partnership duly organize d and validly existing under the laws of the State of California (together with its permitted successors and assigns, the “Borrower”), WITNESSETH:

WHEREAS, the Governmental Lender is authorized unde r Chapter 7 of Part 5 of Division 31 of the California Health and Safety Code, as the same may be amended (the “Act”), to provide financing with respect to one or more projects authorized under th e Act for such payments and upon such terms and conditions as the Governmental Lender may deem advisable in accordance with the provisions of the Act; and
WHEREAS, on April [__], 2026, the Governmental Lender issued those certain City of San José Multifamily Housing Revenue Bonds, Series 2026A (Berryessa TOD) (the “Bonds”), in the principal amount of [__________], pursuant to the Act and that cer tain Trust Indenture dated as April 1, 2026 (the “Indenture”), between the Governmental Lender, as issuer of the Bonds, and UMB Bank, National Association (the “Fiscal Agent”), in its capacity as trustee for the Bonds; and WHEREAS, the proceeds of the Bonds were loaned to the Borrower pursuant to that certain Loan Agreement dated as of April 1, 2026, for the purpo se of financing the construction, improvement and equipping of a multifamily apartment housing facility consisting of a total of 195 units and related personal property and equipment, located in San José, Sant a Clara County, California, and known as “Berryessa TOD” (the “Project Facilities”); and
WHEREAS, Deutsche Bank AG, New York Branch (the “Taxable Construction Lender”) made a taxable construction loan to the Borrower in the principal amount of $[TAXLOANAMT] to finance a portion of the costs of the construction, improvement and equipping of the Project Facilities pursuant to the terms of the Construction Loan Agre ement dated as of April 1, 2026 (the “Taxable Loan Agreement”), between the Taxable Construction Lender and the Borrower, and the other documents delivered in connection therewith (the proceeds of which loan were used, in part, to cash-collateralize the Bonds); and WHEREAS, in connection with Conversion (as defi ned in the Indenture), the Funding Lender previously agreed, pursuant to the terms of the Forward Commitment and subject to the satisfaction of the Conditions to Forward Delivery (or Conditions to In terim Forward Delivery, as applicable) described therein, to facilitate the financing of the Project F acilities in the permanent phase or the Interim Phase, as may be applicable, and in connection therewith, the Borrower has requested the Governmental Lender to enter into that certain Funding Loan Agreement of ev en date herewith (the “Funding Loan Agreement”), among the Governmental Lender, the Fiscal Agent and Deutsche Bank Securities Inc. (the “Funding Lender”), under which the Funding Lender will make a loan or loans (collectively, the “Funding Loan”) to the Governmental Lender, the proceeds of which will be loaned to the Borrower under this Agreement; and WHEREAS; the proceeds of the Borrower Loan will be used to repay the Bonds in full on the Conversion Date; and

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

2 WHEREAS, the Governmental Lender will make the Bo rrower Loan to the Borrower, subject to the terms and conditions of this Agreement and the Funding Loan Agreement, and the Borrower Notes (as defined in the Funding Loan Agreement) will be endorsed, without recourse, by the Governmental Lender to the Fiscal Agent; and
WHEREAS, the obligations of the Borrower under this Agreement are evidenced by the Borrower Notes and will be secured by the Mortgage and the other Funding Loan Documents as described herein;

NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE

UNDERTAKINGS HEREIN SET FORTH AND OTHER GOOD AND VALUABLE

CONSIDERATION, THE ADEQUACY AND RECEIPT OF WHICH ARE HEREBY

ACKNOWLEDGED, AND INTENDING TO BE LEGALLY BOUND, THE BORROWER AND THE GOVERNMENTAL LENDER HEREBY AGREE AS FOLLOWS:

ARTICLE 1

DEFINITIONS
Section 1.1 Definitions. In this Agreement (except as otherwise expressly provided for or unless the context otherwise requires), any capitalized te rms used, but not defined herein, shall have the meanings ascribed to them in the Funding Loan Agreement.

Section 1.2 Rules of Construction; Time of Day. In this Agreement, unless otherwise indicated, (i) defined terms may be used in the singular or the plural and the use of any gender includes all genders, (ii) the words “hereof”, “herein”, “hereto” , “hereby” and “hereunder” refer to this entire Agreement, (iii) all references to particular Articles or Sections are references to the Articles or Sections of this Agreement, (iv) the terms “agree” and “agreements” contained herein are intended to include and mean “covenant” and “covenants”, (v) the term “including” shall mean “including, but not limited to,” and (vi) the terms “best knowledge” or “knowledge” shall mean the actual knowledge of any Authorized Person of the Borrower after due inquiry. References to any time of the day in this Agreement shall refer to Eastern standard time or Eastern daylight saving time, as in effect in New York, New York on such day.

ARTICLE 2

LOAN AND PROVISIONS FOR REPAYMENT
Section 2.1 Basic Loan and Repayment Terms.
(a) The Governmental Lender agrees, upon the terms and conditions contained in this Agreement and the Funding Loan Agr eement, to lend to the Borrower the proceeds of the Funding Loan received by the Governmental Lender from the Funding Lender. Such proceeds shall be disbursed to or on behalf of the Borrower as provided for in this Ag reement and the Funding Loan Agreement. The Borrower’s obligation to repay the Borrower Loan shall be evidenced by the Borrower Notes, the forms of which are attached hereto as Exhibit A and Exhibit B . The Governmental Lender hereby appoints the Funding Lender as its agent with full authority and power to act on its behalf (other than with respect to Reserved Rights) to disburse, or cause the Fiscal Agen t to disburse, the Borrower Loan for the account of the Governmental Lender, to take certain actions and exercise certain remedies with respect to the Borrower Loan, and for the other purposes set forth in this Agreement and to do all other acts necessary or incidental to the performance and execution thereof, such that the Reserved Rights are not disturbed or diminished and the actions of the Governmental Lender and the F unding Lender are appropriately coordinated. This appointment is coupled with an interest and is irrevocable except as expressly set forth herein. Accordingly, references to the rights of the Funding Lender to take actions under this Agreement shall refer to Funding Lender in its role as agent of the Governmental Le nder. Further, the Funding Lender may designate the [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

3 Servicer to fulfill the rights and responsibilities granted by the Governmental Lender to the Funding Lender pursuant to this Section 2.1.
(b) The Borrower hereby agrees to pay the Borrower Notes and repay the Borrower Loan made pursuant to this Agreement by paying or causing to be paid to the Fiscal Agent for payment to the Funding Lender in immediately available funds for the accoun t of the Governmental Lender for deposit into the Funding Loan Fund or the Prepayment Fund, as applicable, on the dates and in the amounts set forth in the Debt Service Schedule attached hereto as Schedule 3, and any other date that any payment of interest, premium, if any, or principal is required to be made in respect of the Governmental Notes pursuant to the Funding Loan Agreement whether at maturity, upon acceleration or by sinking fund prepayment or mandatory prepayment, until the principal of, premium, if any, and interest on the Governmental Notes shall have been fully paid or provision for the paym ent thereof shall have been made in accordance with the Funding Loan Agreement, a sum which will enable the Fiscal Agent to pay the amount payable on such date as principal of (whether at maturity or upon mandatory prepayment or acceleration or otherwise), premium, if any, and interest on the Governmental Notes, as provided in the Funding Loan Agreement. All payments made by the Borrower hereunder or by the Borrower under the other Funding Loan Documents, shall be made irrespective of, and without any dedu ction for, any set-offs or counterclaims, but such payment shall not constitute a waiver of any such set offs or counterclaims. (c) It is understood and agreed that the Borro wer Notes and all payments payable by the Borrower under this Section 2.1 are assigned by the G overnmental Lender to Fiscal Agent for the benefit of the Funding Lender. The Borrower consents to such assignment. The Governmental Lender hereby directs the Borrower and the Borrower hereby agrees to pay to the Fiscal Agent, at the address specified in or in accordance with Section 10.1 hereof, all Borro wer Loan repayments payable to the Governmental Lender pursuant to the Borrower Notes and this subsection. (d) The Borrower shall have, and is hereby granted, the option to prepay the unpaid principal amount of the Borrower Loan, together with interest thereon to the date of prepayment, but only to the extent set forth in the applicable Borrower Note.
(e) The Funding Lender shall deliver to the Fiscal Agent and the Borrower the Debt Service Schedule on the Conversion Date, for both the Series 2029A Borrower Note and the Series 2029B Borrower Note, as applicable, and providing for level debt ser vice with respect to the Series 2029A Borrower Note, calculated on the basis of the Fixed Rate and a 480- month amortization schedule with principal payments commencing on the First Principal Payment Date (with all remaining principal payable on the Series 2029A Maturity Date, if applicable).

Section 2.2 Fees.
(a) [[On the date of execution and delivery of this Agreement, the Borrower shall pay, or cause to be paid, (i) to the Servicer, an origination fee equal to $[TBD], and (ii) to the Funding Lender, an investor delivery fee of $[TBD]].
(b) On the Stabilization Date (if not occurring on the Conversion Date), the Borrower shall pay, or cause to be paid, to the Funding Lender a st abilization review fee equal to $[TBD], plus all site inspection travel costs.
(c) [On the date of execution and delivery of th is Agreement, all fees and expenses of the Governmental Lender (including fees of its counsel in connection with rendering any opinions in connection with Conversion, if any) and, on an ongoing basis as set forth in the Land Use Restriction [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

4 Agreement], the Borrower shall pay any outstanding Governmental Lender Fee and all expenses of the Governmental Lender.
(d) The Borrower shall pay the Fiscal Agent Fee and all expenses of the Fiscal Agent. (e) The Borrower shall pay any and all outsta nding special servicing fees or costs in accordance with Section 6.34 hereof.

Section 2.3 Termination and Prepayment.
(a) Notwithstanding anything to the contrary contained in this Agreement or the other Funding Loan Documents, the Funding Lender’s and each Noteowner’s rights, interests and remedies hereunder and under the other Funding Loan Documents shall not term inate or expire or be deemed to have been discharged or released until the payment in full of the Borrower Notes and the Governmental Notes. No such termination, expiration or release shall affect th e survival of the indemnification provisions of this Agreement, which provisions shall survive any such termination, expiration or release. (b) The Borrower Loan (and the Series 2029A Borrower Note) may be prepaid by the Borrower, and the Series 2029A Governmental Note shall be correspondingly paid pursuant to Section 3.2 of the Funding Loan Agreement, on any Loan Payment Date on or after the Par Call Date, upon the payment of the principal amount of the Series 2029A Borrower Note plus interest accrued thereon to, but not including, the date of prepayment, as provided in the Series 2029A Borrower Note. (c) Acceleration of the obligations of the Borro wer hereunder upon an Event of Default prior to the Par Call Date, shall constitute an evasion of th e prepayment provisions of this Agreement and any tender of payment of an amount necessary to satisfy the entire indebtedness evidenced by this Agreement shall include the Acceleration Premium.
(d) The Borrower shall be required to prepay the Borrower Loan at the times and in the amounts necessary to provide funds for the payment of the mandatory prepayment of the applicable Borrower Note pursuant to Section 7 thereof. In addition, on each Loan Payment Date, the Borrower shall pay to the Fiscal Agent for deposit into the Prepayment Fund the amount set forth for such purpose on Schedule 3 hereto, which amount shall be applied on each Principal Payment Date to the mandatory sinking fund prepayment of the Series 2029A Borrower Note pursuant to Section 7(c) thereof.

Section 2.4 Obligations Absolute. The obligations of the Borrower under this Agreement, the Borrower Notes and the other Funding Loan Documents shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under all circumstances whatsoever, including without limitation the follow ing circumstances: (i) any lack of validity or enforceability of the Fundi ng Loan Documents or any other agreement or document relating thereto; (ii) any amendment or waiver of or any consent to or departure from the Funding Loan Documents or any document relating thereto; or (iii) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against the Government al Lender or the Fiscal Agent (or any persons or entities for whom the Fiscal Agent may be acting incl uding the Funding Lender and the Servicer) or any other person or entity, whether in connection with this Agreement, the transactions described herein or any unrelated transaction. The Borrower understands and agrees that no payment by it under any other agreement (whether voluntary or otherwise) shall constitute a defense to its obligations hereunder, except to the extent that the Borrower Lo an evidenced hereby has been indefeasibly paid in full, whether owing under this Agreement or under the other Funding Loan Documents. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

5 Section 2.5 Indemnification. IN ADDITION TO ITS OTHER OBLIGATIONS

HEREUNDER, AND IN ADDITION TO ANY AND ALL RIGHTS OF REIMBURSEMENT,

INDEMNIFICATION, SUBROGATION AND OTHER RIGHTS OF GOVERNMENTAL LENDER,

THE FISCAL AGENT OR FUNDING LENDER PURSUANT HERETO AND UNDER LAW OR

EQUITY, TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWER COVENANTS TO

DEFEND, INDEMNIFY AND HOLD HARMLESS THE GOVERNMENTAL LENDER, THE

ADMINISTRATOR (AS DEFINED IN THE REGULATORY AGREEMENT) IF OTHER THAN THE

GOVERNMENTAL LENDER, THE FISCAL AGENT, THE FUNDING LENDER, THE SERVICER,

AND EACH OF THEIR RESPECTIVE AFFILIATES AND EACH OF THEIR AND THEIR AFFILIATES ’RESPECTIVE COUNCILMEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, ATTORNEYS AND AGENTS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”), EXCEPT AS LIMITED BELOW, FROM AND AGAINST AN Y AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES (INCLUDING ATTORNEYS ’FEES, COSTS AND EXPENSES FOR COUNSEL OF EACH OF THE INDEMNIFIED PARTIES ’CHOICE)

WHATSOEVER WHICH THE INDEMNIFIED PARTIES MAY INCUR (OR WHICH MAY BE

CLAIMED AGAINST ANY OF THE INDEMNIFIED PARTIES BY ANY PERSON OR ENTITY WHATSOEVER) BY REASON OF OR IN CONNECTION WITH:
(a) THE GOVERNMENTAL NOTES, THE FUNDING LOAN AGREEMENT, THE

BORROWER LOAN AGREEMENT, THE LAND USE RESTRICTION AGREEMENT, THE

TAX CERTIFICATE OR ANY OF THE OTHER FUNDING LOAN DOCUMENTS, OR THE

EXECUTION OR AMENDMENT HEREOF OR THEREOF OR IN CONNECTION WITH THE

TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING THE

DELIVERY, SALE OR RESALE, TRANSFER OR PREPAYMENT OF THE GOVERNMENTAL NOTES;
(b) ANY BREACH BY THE BORROWER OF ANY REPRESENTATION,

WARRANTY, COVENANT, TERM OR CONDITION IN, OR THE OCCURRENCE OF ANY

DEFAULT UNDER, THIS AGREEMENT OR THE OTHER FUNDING LOAN DOCUMENTS,

INCLUDING ALL REASONABLE FEES OR EXPENSES RESULTING FROM THE

SETTLEMENT OR DEFENSE OF ANY CLAIMS OR LIABILITIES ARISING AS A RESULT OF ANY SUCH BREACH OR DEFAULT OR ANY DETERMINATION OF TAXABILITY; (c) THE INVOLVEMENT OF ANY OF THE INDEMNIFIED PARTIES IN ANY

LEGAL SUIT, INVESTIGATION, PROCEEDING, INQUIRY OR ACTION AS A

CONSEQUENCE, DIRECT OR INDIRECT, OF THE SERVICER OR THE FUNDING LENDER’S ACTIONS TAKEN PURSUANT TO THIS AGREEMENT OR ANY OF THE

OTHER FUNDING LOAN DOCUMENTS OR ANY OTHER EVENT OR TRANSACTION CONTEMPLATED BY ANY OF THE FOREGOING;
(d) ANY UNTRUE STATEMENT, MISLEADING STATEMENT OR ALLEGED

UNTRUE STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN ANY

OFFERING OR REOFFERING MATERIALS PREPARED IN RESPECT OF THE

GOVERNMENTAL NOTES, OR ANY SUPPLEMENT OR AMENDMENT THEREOF, OR

THE OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT

NECESSARY TO MAKE SUCH STATEMENTS IN LIGHT OF THE CIRCUMSTANCES IN WHICH THEY ARE OR WERE MADE NOT MISLEADING;
(e) THE ACCEPTANCE OR ADMINISTRATION OF THE FUNDING LOAN

DOCUMENTS OR THE SECURITY INTERESTS THEREUNDER OR THE PERFORMANCE

OF DUTIES UNDER THE FUNDING LOAN DOCUMENTS OR ANY LOSS OR DAMAGE [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

6 TO PROPERTY OR ANY INJURY TO OR DEATH OF ANY PERSON THAT MAY BE

OCCASIONED BY ANY CAUSE WHATSO EVER PERTAINING TO THE PROJECT

FACILITIES OR THE USE THEREOF, INCLUDING WITHOUT LIMITATION ANY LEASE THEREOF OR ASSIGNMENT OF ITS INTEREST IN THIS AGREEMENT; (f) ANY ACT OR OMISSION OF THE BORROWER OR ANY OF ITS AGENTS,

CONTRACTORS, SERVANTS, EMPLOYEES OR LICENSEES IN CONNECTION WITH THE

BORROWER LOAN, THE FUNDING LOAN, THE PROJECT FACILITIES, THE OPERATION

OF THE PROJECT FACILITIES, OR THE CONDITION, ENVIRONMENTAL OR

OTHERWISE, OCCUPANCY, USE, POSSESSI ON, CONDUCT OR MANAGEMENT OF

WORK DONE IN OR ABOUT, OR FROM THE PLANNING, DESIGN OR CONSTRUCTION OF, THE IMPROVEMENTS OR ANY PART THEREOF;
(g) ANY LIEN (OTHER THAN A PERMITTED ENCUMBRANCE) OR CHARGE

UPON PAYMENTS BY THE BORROWER TO THE GOVERNMENTAL LENDER, THE

FISCAL AGENT AND/OR THE FUNDING LENDER HEREUNDER, OR ANY TAXES (INCLUDING, WITHOUT LIMITATION, ALL AD VALOREM TAXES AND SALES TAXES),

ASSESSMENTS, IMPOSITIONS AND OTHER CHARGES IMPOSED ON THE

GOVERNMENTAL LENDER, THE FISCAL AGENT OR THE FUNDING LENDER IN RESPECT OF ANY PORTION OF THE PROJECT FACILITIES;
(h) ANY VIOLATION OR ALLEGED VIOLATION OF ANY APPLICABLE LAW

OR REGULATION INCLUDING, WITHOUT LIMITATION, THAT WHICH PERTAINS TO

THE MAKING OF THE BORROWER LOAN AND THE FUNDING LOAN, ANY

ENVIRONMENTAL LAW OR ANY INSPECTION, REVIEW OR TESTING WITH RESPECT

TO, OR THE RELEASE OF ANY TOXIC SUBSTANCE FROM, THE PROJECT FACILITIES OR ANY PART THEREOF;
(i) THE ENFORCEMENT OF, OR ANY ACTION TAKEN BY THE

GOVERNMENTAL LENDER, THE FISCAL AGENT, THE FUNDING LENDER OR ANY

OTHER INDEMNIFIED PARTY RELATED TO REMEDIES UNDER THIS AGREEMENT, THE FUNDING LOAN AGREEMENT AND THE OTHER FUNDING LOAN DOCUMENTS; (j) ANY ACTION, SUIT, CLAIM, PROCEEDING, AUDIT, INQUIRY,

EXAMINATION, OR INVESTIGATION OF A JUDICIAL, LEGISLATIVE,

ADMINISTRATIVE OR REGULATORY NATURE CONCERNING OR RELATED TO

INTEREST PAYABLE ON THE GOVERNMENTAL NOTES NOT BEING EXCLUDABLE

FROM GROSS INCOME FOR PURPOSES OF FEDERAL INCOME TAXATION OR EXEMPT FROM STATE INCOME TAXATION;
(k) ANY ACTION, SUIT, CLAIM OR DEMAND CONTESTING OR AFFECTING THE TITLE OF THE PROJECT FACILITIES;
(l) THE INVESTIGATION OF, PREPARATION FOR OR DEFENSE OF ANY

LITIGATION, PROCEEDING OR INVESTIGATION IN CONNECTION WITH THE PROJECT

FACILITIES OR THE TRANSACTIONS TO BE CONSUMMATED IN CONNECTION

THEREWITH OF ANY NATURE WHATSOEVER, COMMENCED OR THREATENED AGAINST THE BORROWER, THE PROJECT FACILITIES OR ANY INDEMNIFIED PARTY; [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

7 (m) ANY BROKERAGE COMMISSIONS OR FINDERS’ FEES CLAIMED BY

ANY BROKER OR OTHER PARTY IN CONNECTION WITH THE GOVERNMENTAL NOTES OR THE PROJECT FACILITIES; AND
(n) THE USE BY THE BORROWER OF THE PROCEEDS OF THE BORROWER LOAN AND THE FUNDING LOAN.

THE INDEMNIFICATION SET FORTH IN THIS SECTION 2.5 SHALL INCLUDE THE

REASONABLE COSTS AND EXPENSES OF DEFENDING ITSELF OR INVESTIGATING ANY CLAIM OF LIABILITY AND OTHER REASONABLE EXPENSES AND ATTORNEYS’ FEES, COSTS

AND EXPENSES INCURRED BY THE INDEMNIFIED PARTIES, PROVIDED THE BORROWER

SHALL NOT BE REQUIRED TO INDEMNIFY ANY OF THE INDEMNIFIED PARTIES FOR ANY

CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES TO THE EXTENT, BUT

ONLY TO THE EXTENT, FINALLY ADJUDICATED ON A NON-APPEALABLE BASIS BY A

COURT OF COMPETENT JURISDICTION TO HAVE BEEN THE DIRECT RESULT OF THE

WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE INDEMNIFIED PARTY SEEKING INDEMNIFICATION. THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION SHALL

SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE FUNDING LOAN

AGREEMENT, THE PAYMENT IN FULL OF THE GOVERNMENTAL NOTES AND THE

BORROWER NOTES, AND, WITH RESPECT TO THE FISCAL AGENT, ITS RESIGNATION OR REMOVAL. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR THE

FUNDING LOAN AGREEMENT TO THE CONTRARY, THE BORROWER AGREES (I) NOT TO

ASSERT ANY CLAIM OR INSTITUTE ANY ACTION OR SUIT AGAINST THE FISCAL AGENT OR

ITS EMPLOYEES ARISING FROM OR IN CONNECTION WITH ANY INVESTMENT OF FUNDS

MADE BY THE FISCAL AGENT AS DIRECTED IN WRITING BY THE BORROWER, THE

SERVICER OR THE FUNDING LENDER, AND (II) TO INDEMNIFY AND HOLD THE FISCAL

AGENT AND ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS

HARMLESS AGAINST ANY LIABILITY, LOSSES, DAMAGES, COSTS, EXPENSES, CAUSES OF

ACTION, SUITS, CLAIMS, DEMANDS AND JUDGMENTS OF ANY NATURE ARISING FROM OR IN CONNECTION WITH ANY SUCH INVESTMENT. NOTHING IN THIS SECTION IS INTENDED TO LIMIT THE BORROWER’S OBLIGATIONS CONTAINED IN SECTION 2.1 AND 2.2 HEREOF.

AMOUNTS PAYABLE TO THE GOVERNMENTAL LENDER HEREUNDER SHALL BE DUE AND PAYABLE FIVE (5) DAYS AFTER DEMAND AND WILL ACCRUE INTEREST AT THE DEFAULT RATE, COMMENCING WITH THE EXPIRATION OF THE FIVE (5) DAY PERIOD. WHEN THE

GOVERNMENTAL LENDER INCURS EXPENSES OR RENDERS SERVICE IN CONNECTION

WITH ANY BANKRUPTCY OR INSOLVENCY PROCEEDING, SUCH EXPENSES (INCLUDING

THE FEES AND EXPENSES OF ITS COUNSEL) AND THE COMPENSATION FOR SUCH

SERVICES ARE INTENDED TO CONSTITUTE EXPENSES OF ADMINISTRATION UNDER ANY BANKRUPTCY LAW OR LAW RELATING TO CREDITORS’ RIGHTS GENERALLY. THE

OBLIGATIONS OF BORROWER TO THE INDEMNIFIED PARTIES UNDER THIS SECTION SHALL NOT BE SUBJECT TO THE RECOURSE LIMITATIONS OF SECTION 10.13 HEREOF.

THE INDEMNIFICATION PROVISIONS OF THIS SECTION 2.5 ARE EXPRESSLY

INTENDED TO BE ENFORCEABLE REGARDLESS OF WHETHER THE BORROWER ALLEGES

OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE INDEMNIFIED PARTIES, OR ANY OF THEM.

Nothing contained in this section shall in any wa y be construed to limit the indemnification rights of the Governmental Lender contained in Section 9 of the Land Use Restriction Agreement. With respect to the Governmental Lender, the Land Use Restricti on Agreement shall control in any conflicts between this Section and Section 9 of the Land Use Restriction Agreement. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

8 Section 2.6 Amounts Remaining on Deposit Upon Payment of the Governmental Notes. After payment in full of the principal of, premium, if any, and interest on the Governmental Notes and upon payment of amounts payable to the United States pursuan t to any rebate requirement and the payment of any other amounts owed hereunder or under the Funding Loan Agreement, all amounts on deposit with the Fiscal Agent or the Funding Lender pursuant to the Funding Loan Agreement, this Agreement or any other Funding Loan Document shall be paid by the Fiscal Agent or the Funding Lender, as applicable, to the Borrower.

ARTICLE 3

SECURITY
Section 3.1 Mortgage and Other Funding Loan Documents. To further secure the Borrower’s Obligations under this Agreement, the Borrower shall, at its sole expense, execute and deliver, or cause to be executed and delivered (and where required, duly record), the Mortgage and each of the other Funding Loan Documents.

Section 3.2 Financing Statements. The Borrower shall file, or cause to be filed (or permit the Funding Lender to file), on or before the Conversi on Date, such financing st atements and continuation statements, and perform such other acts, under the Uniform Commercial Code of the State or other applicable Legal Requirements as are necessary or advisable to perfect and maintain perfection of the Governmental Lender’s, the Fiscal Agent’s and/or the Funding Lender’s security interests under this Agreement, the Funding Loan Agre ement, the Mortgage and the other Funding Loan Documents. The Borrower hereby authorizes the Fiscal Agent, the Funding Lender or the Servicer, without the signature of the Borrower, to file continuation statements, and perform such other acts, under the Uniform Commercial Code of the State or other applicable Legal Require ments as are necessary or advisable to perfect and maintain perfection of the Governmental Lender’s, the Fiscal Agent’s and/or the Funding Lender’s security interests under this Agreement, the Funding Loan Agreement, the Mortgage and the other Funding Loan Documents. The Borrower will pay upon demand the costs of filing the foregoing financing or continuation statements and the Financing Statements required under the Funding Loan Agreement in such public offices as the Funding Lender may designate.

Section 3.3 Internal Revenue Service Examination. The Borrower acknowledges that in the event of an examination of the Governmental Notes by the Internal Revenue Service (the “Service”) to determine compliance of the Governmental Notes with the provisions of the Code as they relate to tax- exempt obligations, the Governmental Lender is likely to be treated as the “taxpayer” in such examination.

The Borrower agrees, upon notification by the Governmental Lender, that the Borrower (a) will respond to any inquiries from the Service in connection with such examination, and (b) upon request of the Governmental Lender, will reimburse the Govern mental Lender for all expenses incurred by the Governmental Lender in connection with such examina tion of the Governmental Notes by the Service, or will directly pay the costs of any such examinati on. The Governmental Lender covenants that it will promptly notify the Borrower and the Fiscal Agent of any inquiry or examination by the Service relating to the Governmental Notes. The Borrower understands and agrees that the interests of the Governmental Lender and the Borrower in any such examination may differ and that the existence of the examination may be subject to public disclosure by the Governmental Lender under the open records laws of the State.

ARTICLE 4

REPRESENTATIONS AND LIMITED LIABILITY OF GOVERNMENTAL LENDER Section 4.1 Representations by the Governmental Lender. As of the date of delivery of the Governmental Notes, the Governmental Lender repr esents and warrants to the Borrower and the Funding [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

9 Lender, in addition to those representations and warranties set forth in Section 2.7 and 2.8 of the Funding Loan Agreement, as follows:
(a) To the knowledge of the Governmental Lender, there is no default of the Governmental Lender in the payment of the principal of or interest on any of its indebtedness for borrowed money or under any instrument or instruments or agreements under and subject to which any indebtedness for borrowed money has been incurred which does or could affect the validity and enforceability of the Funding Loan Document s or the ability of the Governmental Lender to perform its obligations thereunder, and no event has occurred and is continuing under the provisions of any such instrument or agreement which constitu tes or, with the lapse of time or the giving of notice, or both, would constitute such a default.
(b) There are no obligations of the Governmental Lender other than the Governmental Notes that have been, are being or will be (i) sold at substantially the same time, (ii) sold pursuant to the same plan of financing, and (iii) reasonably expected to be paid from substantially the same source of funds.
(c) In connection with the Governmental Lender’s actions with regard to the authorization, execution and delivery of the Gove rnmental Notes, the Governmental Lender has complied in all material respects with all provisions of the laws of the State, including the Act, provided that no representation is made as to comp liance with any state securities or “blue sky” laws.
(d) The Governmental Lender has not assigned or pledged and will not assign or pledge its interest in this Agreement for any purpose other than to secure the Governmental Notes under the Funding Loan Agreement.
(e) The Governmental Lender covenants and ag rees that it will take or cause to be taken all required actions that is within its control to preserve the exclusion from gross income for federal income tax purposes of interest on the Governmental Notes. (f) No official or employee of the Government al Lender, has any interest (financial, employment or other) in the Borrower, in the Project Facilities or in the transactions contemplated hereby, by the other Funding Loan Documents or by the Funding Loan Agreement.

THE GOVERNMENTAL LENDER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH

RESPECT TO (I) THE PROJECT FACILITIES OR ANY PORTION THEREOF, INCLUDING,

WITHOUT LIMITATION, THE HABITABILITY THEREOF, THE MERCHANTABILITY OR FITNESS THEREOF FOR ANY PARTICULAR PURPOSES; THE DESIGN OR CONDITION THEREOF; THE WORKMANSHIP, QUALITY OR CAPACITY THEREOF; THE COMPLIANCE THEREOF WITH ANY LEGAL REQUIREMENTS; OR (II) THE FINANCIAL POSITION OR

BUSINESS CONDITION OF THE BORROWER OR ANY STATEMENTS, MATERIALS,

REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION

WITH THE EXECUTION AND DELIVERY OF THE BORROWER NOTES OR AS TO THE CORRECTNESS, COMPLETENESS OR ACCURACY THEREOF.

Section 4.2 No Liability of Governmental Lender; No Charge Against Governmental Lender’s Credit.
(a) The Governmental Lender shall not be obligat ed to pay the principal of, prepayment premium, if any, or interest on the Funding Loan , except from moneys and assets received by the Fiscal [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

10 Agent or the Funding Lender on behalf of the Govern mental Lender pursuant to this Agreement. Any obligation or liability of the Govern mental Lender created by or arising out of this Agreement (including, without limitation, any liability created by or arising out of the representations, warranties or covenants set forth herein or otherwise) shall not impose a debt or pecuniary liability upon th e Governmental Lender or a charge upon its general credit, but shall be payable solely out of the moneys due and to become due under the Funding Loan Documents (and not from any moneys due or to become due to the Governmental Lender pursuant to the Reserved Rights). Neither the issuan ce of the Funding Loan nor the delivery of this Agreement shall, directly or indirectly or conti ngently, obligate the Governmental Lender to make any appropriation for payment of the Funding Loan. No agreements or provisions contained in this Agreement, the Funding Loan Agreement, any other Funding Loan Document, nor any agreement, covenant or undertaking by the Governmental Lender contained in any document executed by the Governmental Lender in connection with the Project Facilities or the issuance, sale and delivery of the Governmental Notes shall give rise to any pecuniary liability of the Government al Lender or a charge against its general credit or taxing powers, or shall obligate the Governmental Lender financially in any way. Nothing in the Funding Loan Agreement or this Agreement or the proceedings of the Governmental Lender authorizing the Funding Loan or in the Act or in any other related document shall be construed to authorize the Governmental Lender to create a debt of the Governmental Lender within the meaning of any constitutional or statutory provision of the State. No covenant, agreement or obligation contained herein shall be deemed to be a covenant, agreement or obligation of any present or future Councilmember, officer, employee or agent of the Governmental Lender in his or her individual capacity, and neither any employee or officer of the Governmental Lender nor any officer thereof executing the Governmental Notes shall be liable personally on the Governmental Notes or be subject to any personal liability or accountability by reason of the issuance thereof. No Councilmember, officer, employee or agent of the Governmental Lender shall incur any personal liability with respect to any other action taken by him or her pursuant to this Agreement, the Funding Loan Agreement or the Act. No breach of any pledge, obligation or agreement of the Governmental Lender hereunder may impose any pecuniary liability upon the Governmental Lender or any charge upon its general credit. The Governmental Lender shall not be liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reason of or in connection with this Agreement, the Funding Loan or the Funding Loan Agreement, except only to the extent amounts are received for the payment thereof from the Borrower under this Agreement. (b) The Borrower and Funding Lender hereby acknow ledge that the Governmental Lender’s sole source of moneys to repay the Funding Loan will be provided by the payments made by the Borrower pursuant to this Agreement and the Borrower Notes, together with investment income on certain funds and accounts held by the Fiscal Agent under the Funding Loan Agreement, and the Borrower hereby agrees that if the payments to be made hereunder shall ever pr ove insufficient to pay all principal of, prepayment premium, if any, and interest on the Funding Loan as the same shall become due (whether by maturity, prepayment, acceleration or otherwise), then upon notice from the Fiscal Agent, the Borrower shall pay such amounts as are required from time to time to prevent any deficiency or default in the payment of such principal of, prepayment premium, if any, or inte rest on the Funding Loan, including, but not limited to, any deficiency caused by acts, omissions, nonfeasance or malfeasance on the part of the Fiscal Agent, the Borrower, the Governmental Lender or any third part y, subject to any right of reimbursement from the Fiscal Agent, the Governmental Lender or any such third party, as the case may be, therefor. (c) Anything in this Agreement to the contrary notwithstanding, it is expressly understood by the parties to this Agreement that (a) the Governmental Lender may rely exclusively on the truth and accuracy of any certificate, opinion, notice or other instrume nt furnished to the Governmental Lender by the Fiscal Agent, the Borrower or the owner of the Governmental Notes or the Funding Lender as to the existence of any fact or state of affairs, (b) the Governmental Lender shall not be under any obligation under this Agreement or any of the other Funding Loan Docu ments to perform any record keeping or to provide any legal services, it being understood that such services shall be performed or caused to be performed by [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

11 the Fiscal Agent and (c) none of the provisions of the Funding Loan Documents shall require the Governmental Lender to expend or risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers under the Funding Loan Documents, unless it shall first have been adequately indemnified to its satisfaction against any costs, expenses and liability which it may incur as a result of taking such action. No recourse for the payment of any part of the principal of, premium, if any, or in terest on the Governmental Notes or the Funding Loan or for the satisfaction of any liability arising from, founded upon or existing by reason of the issuance, purchase or ownership of the Governmental Notes or the Funding Loan or otherwise under the Funding Loan Documents shall be had against the Governmental Lender or any official, officer, Councilmember, agent or employee of the Governmental Lender, as su ch, all such liability being expressly released and waived as a condition of and as a part of the consid eration for the execution of this Agreement and the issuance of the Governmental Notes and the Funding Loan under the Funding Loan Agreement. (d) THE FUNDING LOAN IS A LIMITED OBLIGATION OF THE GOVERNMENTAL LENDER. NEITHER THE CITY COUNCIL OF THE GOVERNMENTAL LENDER NOR ANY

OFFICIAL OR EMPLOYEE OF THE GOVERNMENTAL LENDER, NOR ANY PERSON

EXECUTING THE FUNDING LOAN, SHALL BE LIABLE PERSONALLY ON THE FUNDING LOAN

OR SUBJECT TO ANY PERSONAL LIABILITY OR ACCOUNTABILITY BY REASON OF ITS ISSUANCE. THE FUNDING LOAN, THE GOVERNMENTAL NOTES AND THE INTEREST

THEREON ARE LIMITED OBLIGATIONS OF THE GOVERNMENTAL LENDER, PAYABLE ONLY FROM THE SOURCES DESCRIBED IN THE FUNDING LOAN AGREEMENT. NEITHER THE

GOVERNMENTAL LENDER, THE STATE NOR ANY OTHER POLITICAL CORPORATION OR

SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF

SUCH FUNDING LOAN, THE GOVERNMENTAL NOTES OR THE INTEREST THEREON OR OTHER COSTS INCIDENT THERETO EXCEPT FROM THE MONEY PLEDGED THEREFOR. (e) THE FUNDING LOAN, THE GOVERNMENTAL NOTES AND THE INTEREST

THEREON DO NOT AND SHALL NEVER CONSTI TUTE A DEBT OF INDEBTEDNESS WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION. NEITHER

THE FAITH AND CREDIT NOR THE TAXING POWER OF THE GOVERNMENTAL LENDER, THE

STATE NOR ANY POLITICAL CORPORATION OR SUBDIVISION OR AGENCY THEREOF IS

PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE FUNDING LOAN, THE GOVERNMENTAL NOTE OR OTHER COSTS INCIDENT THERETO.

THE FUNDING LOAN AND GOVERNMENTAL NOTES ARE NOT DEBTS OF THE UNITED STATES OF AMERICA.

Section 4.3 Nonrecourse Obligation of the Governmental Lender. No recourse shall be had for the payment of the principal of, premium, if any, or interest on the Funding Loan or for any claim based thereon or upon any obligation, covenant or agre ement in this Agreement contained, against the Governmental Lender, any past, present or future Councilmember of the Governmental Lender, its officers, attorneys, accountants, financial advisors, agents or st aff or the officers, attorneys, accountants, financial advisors, agents or staff of any successor public entity, as such, either directly or through the Governmental Lender or any successor public entity, under any rule of la w or penalty of otherwise, and all such liability of any member of the Governmental Lender, any of its Councilmembers and its officers, attorneys, accountants, financial advisors, agents and staff is hereby, and by the acceptance of the Funding Loan, expressly waived and released as a condition of, and in consideration for, the execution of this Agreement and the funding of the Funding Loan. It is recognized that notwithstanding any other provision of this Agreement, none of the Borrower, the Funding Lender or the Fiscal Agent shall look to the members of the City Council of the Governmental Lender, or its officers, attorneys, accountants, financial advisors, agents or staff, past, present or future, for damages suffere d by the Borrower, the Funding Lender or such Fiscal Agent as a result of the failure of the Government al Lender to perform any covenant, undertaking or [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

12 obligation under this Agreement, the Funding Loan Agreement, the Funding Loan, the Regulatory Agreement, any of the other Funding Loan Documents or any of the other documents referred to herein, or as a result of the incorrectness of any representation made by the Governmental Lender in any of such documents, nor for any other reason except for represen tations made by the Governmental Lender in any certificate of the Governmental Lender and the opinion of counsel to the Governmental Lender delivered on the date of origination of the Funding Loan. Although this Agreement recognizes that such documents shall not give rise to any pecuniary liability of the Governmental Lender, nothing contained in this Agreement shall be construed to preclude in any way any action or proceed ing (other than that element of any action or proceeding involving a claim for monetary damages against the Governmental Lender) in any court or before any governmental body, agency or inst rumentality or otherwise against the Governmental Lender or any of its officers or employees to enforce the provisions of any of such documents which the Governmental Lender is obligated to perform and the performance of which the Governmental Lender has not assigned to the Fiscal Agent, the Funding Lender or any other person.

Section 4.4 Waiver of Personal Liability. No covenant, agreement or obligation contained herein shall be deemed to be a c ovenant, agreement or obligation of a ny present or future elected official, officer, employee or agent of the Governmental Lender in his individual capacity, and no City Councilmember, officer, employee or agent of the Gove rnmental Lender shall be liable personally on the Funding Loan or be subject to any personal liability or accountability by reason of the issuance thereof. No elected official, officer, employee or agent of the Governmental Lender shall incur any personal liability with respect to any other action taken by him pursuan t to this Borrower Loan Agreement, absent such person’s bad faith. No agreements or provisions contained in this Agreement nor any agreement, covenant or undertaking by the Governmental Lender contained in any document contemplated hereby shall give rise to any pecuniary liability of the Governmental Lender or a charge against its general credit or taxing powers, or shall obligate the Governmental Lender financially in any way.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants to and for the benefit of the Governmental Lender, the Funding Lender, the Servicer and the Noteowners from time to time of the Governmental Notes as follows:

Section 5.1 Existence. The Borrower is a limited partnership, duly organized, validly existing and in good standing under the Legal Requirements of th e state of its organization and is duly qualified to do business in the State. The Borrower has furnished to the Governmental Lender and the Funding Lender true and complete copies of its Partnership Agreemen t and its certificate of limited partnership. The Borrower owns and will own no other assets other th an the Project Facilities. The Borrower, the Administrative General Partner is and will be engaged solely in the bus iness of constructing, equipping, financing, owning, leasing, managi ng and operating the Project Facilities and activities incident thereto.

The Administrative General Partner of the Borrower is AHG Berryessa, LLC, a limited liability company, duly organized, validly existing and in good standing unde r the laws of the State. The Managing General Partner of the Borrower is CFAH Housing LLC, a lim ited liability company, duly organized, validly existing and in good standing under the laws of the St ate. The Administrative General Partner and the Managing General Partner have each furnished to the Governmental Le nder and the Funding Lender true and complete copies of their certificate of formation and operating agreement. The Administrative General Partner has and will have no other assets other than its partnership interests in the Borrower.

Section 5.2 Power, Authorization and No Conflicts. The Borrower has all requisite power and authority and the legal right to own and operate its properties and to conduct its business and operations as they are currently being conducted and as proposed to be conducted by it. The execution, delivery and performance by the Borrower of this Agreement and the other Funding Loan Documents and the [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

13 Subordinate Debt Documents to which the Borrower is a party (i) are within the Borrower’s powers, (ii) have been duly authorized by all necessary company and legal action by or on behalf of the Borrower, and (iii) do not contravene the Partnership Agreement, operating agr eement, certificate of formation, certificate of limited partnership, articles of incorporation or bylaws of the Borrower or the General Partner, as applicable, or any Legal Requirement applicable to the Borrower or the General Partner or any Material Contract or restriction binding on or affecting the Bo rrower, the General Partner or any of their respective assets, or result in the creation of any mortgage, pl edge, lien or encumbrance upon any of its assets other than as provided by the terms thereof.

Section 5.3 Governmental Authorizations and Othe r Approvals. The Borrower and the General Partner have all necessary Governmental Acti ons and qualifications, and have complied with all applicable Legal Requirements necessary to conduct their business as it is presently conducted and to own and operate the Project Facilities in accordance with the provisions of the Funding Loan Documents. The Borrower has obtained all Governmental Actions from such Governmental Authorities which were or are a necessary precondition to construct, own and operate the Project Facilities and all such Governmental Actions were duly issued and have not been revoked, are in full force and effect and are not subject to any pending judicial or administrative proceedings, the period for judicial or administrative appeal or review having expired and no petition for administrative or judicial appeal or review having been filed. The Project Facilities have and will comply with all Government al Actions and Legal Requirements, including all zoning restrictions (including without limitation, use density, setbacks, parking and other similar requirements) or the Borrower has a valid variance fo r or exemption from such requirements. No such Governmental Action will terminate, or become void or voidable or terminable, upon any sale, transfer or other disposition of the Project Facilities including a ny transfer pursuant to foreclosure sale under the Mortgage.

Section 5.4 Validity and Binding Effect. This Agreement and the other Funding Loan Documents and the Subordinate Debt Documents to whic h the Borrower is a party are the legal, valid and binding obligations of the Borrower, enforceable ag ainst it in accordance with their respective terms, subject to the application by a court of general princi ples of equity and to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar Legal Requirement affecting creditors’ rights generally.

Section 5.5 No Litigation. Except as disclosed on Sc hedule 1 attached hereto, there is no pending action or proceeding, including eminent domain proceedings, before any Governmental Authority or arbitrator against or involving the Borrower, the General Partner or to the Borrower’s knowledge after due inquiry, the Project Facilities and, to the best knowledge of the Borrower and the General Partner, there is no threatened action or proceeding, including eminent domain proceedings, affecting the Borrower or the General Partner before any Governmental Authority or arbitrator which, in any case, might materially and adversely affect (i) the business, operations, assets, cond ition (financial or otherwise) or prospects of the Borrower or the General Partner, (ii) the validity or enforceability of this Agr eement, the Governmental Notes, the Subordinate Debt Documents or the Funding Loan Documents, (iii) the construction, operation or ownership of the Project Facilities, (iv) the exclusion from gross income of interest on the Governmental Notes for purposes of federal income taxation or (v) the exemption of the Project Facilities from ad valorem real estate taxation under the applicable laws of the State.

Section 5.6 No Violations. To the best of Borrower’s knowledge after due inquiry, the Borrower and the General Partner are in compliance w ith, and not in breach of or default under (a) any applicable Governmental Actions or Legal Requirements with respect to the Project Facilities of any Governmental Authority having jurisdiction, or (b) the Funding Loan Documents, the Subordinate Debt Documents or any other credit agreement, indenture, mortgage, agreement or other instrument to which it is a party or otherwise subject. To the best of Borrower’s knowledge, no event has occurred and is [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

14 continuing which, with the passage of time or the givi ng of notice or both, would constitute an event of default by the Borrower under any such instrument. The Borrower is not in violation, nor is there any notice or other record of any violation of any Legal Requir ements, restrictive covenants or other restrictions applicable to any of the Project Facilities. All tax returns (federal, state a nd local) required to be filed by or on behalf of the Borrower, if any prior to the C onversion Date, have been tim ely filed, and all taxes shown thereon to be due, including interest and penalties, except such, if any, as are being actively contested by the Borrower in good faith, have been paid or adequate reserves have been made for the payment thereof which reserves, if any, are reflected in the audited financial statements described therein. The Borrower enjoys the peaceful and undisturbed possession of the Project Facilities subject to the terms of the Ground Lease.

Section 5.7 Compliance. The ownership of the Project Facilities, the construction of the Project Facilities, and the use and operation of the Project Facilities as contemplated hereby have, do and shall, in all material respects, complied and comply with, and are lawful and permitted uses under, the Tax Certificate and the Land Use Restriction Agreement, all applicable building, fire, safety, zoning, subdivision, sewer, Environmental Laws, health, in surance and other Legal Requirements and plan approval conditions of any Governmental Authority. The Borrower has obtained all Governmental Actions from such Governmental Authorities which are a necessary precondition to construct, own and operate the Project Facilities and all such Governmental Actions we re duly issued, are in full force and effect and are not subject to any pending judicial or administrative proceedings, the period for judicial or administrative appeal or review having expired and no petition for administrative or judicial appeal or review having been filed. The Project Facilities are located wholly within the boundaries of the Governmental Lender’s jurisdiction. The Project Facilities have satisfied an d will satisfy all requirements (i) of the Act and the Code with respect to multifamily rental housing and/or qualified residential rental facilities, and (ii) for an exemption from ad valorem real estate taxation under the applicable laws of the State.

Section 5.8 Title to Properties; Liens and Encumb rances. The Borrower has a leasehold interest in the real property on which the Project F acilities were constructed pursuant to the Ground Lease and is the fee simple owner of the Improvements thereon, free and clear of all liens or encumbrances except for the Permitted Encumbrances. All such real pr operty, fixtures and equipment necessary to the conduct of the business of the Borrower and the operation of the Project Facilities are and will be in reasonable working order and are suitable for the purposes for which they are and will be used. There exist no liens, encumbrances or other charges against the Project Facilities (including without limitation statutory and other liens of mechanics, workers, contractors, subc ontractors, suppliers, taxing authorities and others), except Permitted Encumbrances.

Section 5.9 Utilities and Access. All utility services necessary for the operation of the Project Facilities in the manner contemplated hereby, includi ng water supply, storm and sanitary sewer facilities, gas, electricity and telephone facilities are available (or will be timely available) within the boundaries of the Project Facilities or on easements benefiting the Pr oject Facilities; and all roads necessary for the full utilization of the Project Facilities in the manner contemplated hereby either have been completed or rights- of-way therefor have been acquired by the appropriate Governmental Authority or access rights granted to the Borrower.

Section 5.10 Financial Information.
(a) All of the financial information furnished to the Funding Lender and the Servicer with respect to the Borrower, the General Partner and, to the best of the Borrower’s knowledge, the Guarantor, in connection with this Agreement (i) is complete and correct in all material respects as of the date hereof; and (ii) accurately presents the financial condition of such party as of the date hereof. None of the Borrower, [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

15 the General Partner or, to the best of the Borrower’s knowledge, the Guarantor, has any material liability or contingent liability not disclosed to both the Funding Lender and the Servicer in writing; and (b) Since its formation, each of the Borrower, th e General Partner and, to the best of the Borrower’s knowledge, the Guarantor, has conducted its operations in the ordinary course, and no material adverse change has occurred in the business, operations, assets or financial condition of the Borrower, the General Partner or, to the best of the Borrower’s knowledge, the Guarantor.

Section 5.11 ERISA. No employee pension plan main tained by the Borrower or the General Partner or any ERISA Affiliate which is subject to Part 3 of Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) has an accumulated funding deficiency (as defined in Section 302(a) of ERISA), no reportable event (as defined in Section 4043 of ERISA) has occurred with respect to any employee pension plan maintained for employees of the Borrower or any ERISA Affiliate and covered by Title IV of ERISA, no liability has been asserted against the Borrower, the General Partner or any ERISA Affiliate by the Pension Benefit Guaranty Corporation (“PBGC”) or by a trustee appointed pursuant to Section 4042(b) or (c) of ERISA, and no lien has been attached and no person has threatened to attach a lien to any of the Borrower’s, the General Partner’s or any ERISA Affiliate’s property as a result of failure to comply with ERISA or as a result of the termination of any employee pension plan covered by Title IV of ERISA. Each employee pension plan (as defined in Section 3(2) of ERISA) maintained for employees of the Borrower, the General Partner or any ERISA Affiliate which is intended to be qualified under Section 401 (a) of the Code, including all amendments to such plan or to any trust agreement, group annuity or insurance contract or other governing instrument, is the subject of a favorable determination by the Internal Revenue Service with respect to its qualification under Section 401(a) of the Code. With respect to any multi-employer pension plan (as defined in Section 3( 37) of ERISA) to which the Borrower, the General Partner or any ERISA Affiliate is or has been re quired to contribute after September 25, 1980, (i) no withdrawal liability (within the meaning of Section 4201 of ERISA) has been incurred by the Borrower, the General Partner or any ERISA Affiliate, (ii) no withdrawal liability has been asserted against the Borrower, the General Partner or an y ERISA Affiliate by a sponsor or an agent of a sponsor of any such multi-employer plan, (iii) no such multi-employer pension plan is in reorganization (as defined in Section 4241(a) of ERISA), and (iv) neither the Borrower, th e General Partner nor any ERISA Affiliate has any unfulfilled obligation to contribute to any such multi-em ployer pension plan. As used in this Agreement, “ERISA Affiliate” means (i) any corporation included with the Borrower or the General Partner in a controlled group of corporations within the meaning of Section 414(b) of the Code, (ii) any trade or business (whether or not incorporated or for-profit) which is under common control with the Borrower, or the General Partner within the meaning of Section 414(c) of the Code, (iii) any member of an affiliated service group of which the Borrower, or the General Partner is a member within the meaning of Section 414(m) of the Code, and (iv) any other entity treated as being under common control with the Borrower or the General Partner under Section 414(o) of the Code.

Section 5.12 Environmental Representations. Except as set forth on the Environmental Audit delivered to the Funding Lender (a) the Borrower has no knowledge of any activity at the Project Facilities, or any storage, treatment or disposal of any Hazardous Substances connected with any activity at the Project Facilities, which has been conducted, or is being conducted, in violation of any Environmental Law; (b) the Borrower has no knowledge of any of the following which could give rise to material liabilities, material costs for remediation or a material adverse change in the business, operations, assets or condition (financial or otherwise) of the Borrower: (i) Contamination pr esent at the Project Facilities, (ii) polychlorinated biphenyls present at the Project Facilities, (iii) asbestos or materials containing asbestos present at the Project Facilities, (iv) urea formaldehyde foam insulation present at the Project Facilities, or (v) lead-based paint at the Project Facilities; (c) no portion of th e Project Facilities constitutes an Environmentally Sensitive Area; (d) the Borrower has no knowledge of a ny investigation of the Project Facilities for the presence of radon; (e) no tanks presently or formerly used for the storage of any liquid or gas above or [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

16 below ground are present at any of the Project Fac ilities; (f) no condition, activity or conduct exists on or in connection with the Project Facilities which constitutes a violation of Environmental Laws; (g) no notice has been issued by any Governmental Authority to the Borrower or the General Partner identifying the Borrower or the General Partner as a potentially responsible party under any Environmental Laws; and (h) there exists no investigation, action, proceeding or claim by any Governmental Authority or by any third party which could result in any liability, penalty, sanctions or judgment under any Environmental Laws with respect to the Project Facilities.

Section 5.13 Outstanding Obligations and Material Contracts. Attached hereto as Schedule 2 is (i) a complete list of all Obligations of the Borrower and the General Partner as of the date of execution and delivery hereof, together with a description of th e instruments evidencing, governing or securing such Obligations (provided that no description need be provided of the Obligations hereunder) and (ii) a complete list of all other Material Contracts (provided that no description need be provided of the Material Contracts hereunder). There exists no default by the Borrower under any such instrument. Except for the Obligations listed on Schedule 2, neither the Borrower nor the Administrative General Partner has incurred any Obligations, secured or unsecured, direct or contingent. The Borrower and the Administrative General Partner, as may be applicable, have complied with all provisions of such Material Contracts in all material respects, to the extent such contract is applicable to such party, and, to the Best of the Borrower’s knowledge, there exists no default or event which, with the giving of notice or the passage of time, or both, would constitute a default, under any such Material Contract.

Section 5.14 Solvency. Each of the Borrower, the Gu arantor and the General Partner is and, after giving effect to this Agreement and all other agreements of the Borrower, the Guarantor and the General Partner being entered into on the date of execution and delivery of this Agreement, will be solvent (which for this purpose shall mean that it is able to pay its current debts as they come due).

Section 5.15 Full Disclosure. This Agreement, the e xhibits hereto and the other documents, certificates, opinions, schedules and statements furnished to the Funding Lender and the Servicer by or on behalf of the Borrower, the Guarantor, or the Ge neral Partner in connection with the transactions contemplated hereby or by the Funding Loan Documents, do not contain any untrue statement of a material fact with respect to the Borrower, the Guarantor or the General Partner or the Project Facilities and do not omit to state a material fact with respect to the Borrower, the Guarantor or the General Partner or the Project Facilities necessary in order to make the statements contained therein not misleading in light of the circumstances under which they were made. There is no fact known to the Borrower, the Guarantor or the General Partner which materially adversely affects or in the future may adversely affect the business, operations, properties, assets or financial condition of the Borrower, th e Guarantor or the General Partner which has not been set forth in this Agreement or in the other documents, certificates, opinions, schedules and statements furnished to the Funding Lender and the Servicer on behalf of any such party before the date of execution and delivery of this Agreement in connection with the transactions contemplated hereby.

Section 5.16 Funding Loan Documents. The Borrower has provided the Funding Lender with true, correct and complete copies of: (i) all documen ts executed by the Borrower, the Guarantor or the General Partner in connection with the Governmental Notes, including all amendments thereto and compliance reports filed thereunder; (ii) all management and service contracts entered into by the Borrower in connection with the Project Facilities, including all amendments thereto; (iii) all material correspondence, if any, relating to the Governmental Notes from th e Governmental Lender, the Securities and Exchange Commission, the Internal Revenue Service or any state or local securities regulatory body or taxing authority or any securities rating agency; and (iv) all documentation, if any, relating to governmental grants, subsidies or loans or any other loans, lines of credit or other subordinate fina ncing (including, without limitation, the Subordinate Debt) relating to the Borrow er or the Project Facilities, whether or not secured by the Project Facilities. Each of the representations and warranties on the Borrower’s part made in the [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

17 Funding Loan Documents to which the Borrower is a party remain true and correct in all material respects and no Default exists under any covenants on the Borrower’s part to perform under the Funding Loan Documents to which the Borrower is a party.

Section 5.17 Illegal Activity. No portion of any of the Project Facilities has been or will be acquired, constructed, fixtured, equipped or furnis hed with proceeds of any illegal activity conducted by the Borrower.

Section 5.18 Executive Order 13224. Neither the Borrower, the General Partner nor any Person holding any legal or beneficial interest whatsoever in any of those entities is included in, owned by, controlled by, acting for or on behalf of, providing assistance, support, sponsorship, or services of any kind to, or otherwise associated with any of the persons or entities referred to or described in Executive Order 13224 — Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, as amended. It shall constitute an Event of Default hereunder if the foregoing representation and warranty shall ever become false.

Section 5.19 No Broker. Other than as previously disclosed in writing to the Funding Lender and the Servicer, the Borrower has used no broker in connection with the execution hereof and the transactions contemplated hereby.

Section 5.20 [Reserved].

Section 5.21 [Reserved].

Section 5.22 [Reserved].

Section 5.23 As-Built Survey. The survey for the Pr oject Facilities delivered to the Funding Lender does not fail to reflect any material matter of survey affecting the Project Facilities or the title thereto.

Section 5.24 Flood Plain. No part of the Project Facilities is located in an area identified by the Federal Emergency Management Agency as an area havi ng special flood hazard or to the extent any part of the Project Facilities is an area identified as an area having special flood hazard, flood insurance [with a $10 million property limit shall be maintained by Borro wer for so long as the Pr oject Facilities continues to be in a special flood hazard zone].

Section 5.25 [Reserved].

Section 5.26 Rent Roll. To the Borrower’s actual knowledge, the rent roll dated [DATE], 2029, provided to the Funding Lender, is a true, correct and complete rent roll for the Project Facilities (the “Rent Roll”), which includes all leases affecting the Project Facilities. Except as set forth on the Rent Roll, to the Borrower’s actual knowledge: (i) each lease is in full force and effect; (ii) the tenants under the leases have accepted possession of and are in occupancy of all of their respective demised Project Facilities, have commenced the payment of rent unde r such leases, and there are no off sets, claims, or defenses to the enforcement thereof; (iii) all rents due and payable under the leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv) the rent payable under each lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by tenant thereunder for an adjustment to the rent; (v) no tenant has made any claim against the landlord under the leases (except as disclosed in writing to Funding Lender) which remains outstanding, there are no defaults on the part of the landlord under any lease, and no even t has occurred which, with the giving of notice or passage of time, or both, would constitute such a default; and (vi) to the Borrower’s best knowledge, there [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

18 is not present a material default by the tenant under any lease. The Borrower will hold any security deposits under the leases in a non-commingled bank account in the name of the Borrower and meeting the requirements of applicable laws. None of the leases contains any option to purchase or right of first refusal to purchase the Project Facilities or any part thereof. Neither the leases nor the Rents have been assigned or pledged to any Person and no Person has any interest therein except the tenants thereunder.

ARTICLE 6

GENERAL COVENANTS
So long as any amount is due and owing hereunder, the Borrower covenants and agrees, except to the extent the Funding Lender shall otherwise consent in writing to perform and comply with each of the following covenants:

Section 6.1 Conduct of Business; Maintenance of Existence; Mergers. The Borrower and the Administrative General Partner will (i) engage solely in the business of financin g, constructing, owning, leasing and operating the Project Facilities, and activities incident thereto, (ii) preserve and maintain in full force and effect its existence as a limited partnership or limited liability company, as applicable, under the Legal Requirements of the state of its organization, a nd its rights and privileges and its qualification to do business in the State, (iii) not dissolve or otherwise dispose of all or substantially all of its assets, (iv) except for Permitted Transfers, not consolidate with or merg e into another entity or permit one or more other entities to consolidate with or merge into it, (v) not amend any provision of its certificate of limited partnership, certificate of formation or its Partners hip Agreement or operating agreement, as applicable, relating to its purpose, management or operation wit hout the prior written consent of the Funding Lender, and (vi) promptly and diligently enforce its rights under the Partnership Agreement. Notwithstanding the foregoing, the Borrower and the General Partner ma y amend the Partnership Agreement in order to effectuate a Permitted Transfer
Section 6.2 Compliance with Legal Requirements; Payment of Impositions. The Borrower will comply with all Legal Requirements applicable to the Borrower or the Project Facilities. The Borrower will pay all Impositions and insurance premiums when due and will make the applicable deposits required by Section 8.2 of this Agreement for such purposes. The Borrower shall make commercially reasonably efforts to direct that copies of all regular Impositions and insurance premiums shall be sent directly by the Governmental Authority or insurer, as applicable, to the Servicer and the Funding Lender.

Section 6.3 Maintenance of Governmental Authorizations. The Borrower will maintain in full force and effect all of its Governmental Actions and qualifications necessary for the conduct of its business as it is presently being conducted a nd the ownership and operation of the Project Facilities as they are presently being operated and as contemplated by the terms of the Funding Loan Documents. The Borrower will promptly furnish copies of all reports and correspondence relating to a loss or proposed revocation of any such qualification to the Funding Lender and the Servicer.

Section 6.4 Maintenance of Insurance.
(a) At all times throughout the term hereof, the Borro wer shall, at its sole cost and expense, maintain or cause to be maintain ed insurance against such risks a nd for such amounts as required by the Funding Lender for facilities of the type and size of the Project Facilities, as such requirements may be modified by the Funding Lender from time to time, and shall pay, as the same become due and payable, all premiums with respect thereto. The initial insu rance requirements shall include, but not necessarily be limited to, the requirements set forth on Schedule 7 hereto. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

19 (b) All insurance required by this Section 6.4 shall be produced and maintained in financially sound and generally recognized responsible insurance companies selected by the entity required to procure the same and authorized to write such insurance in the State. Such insurance may be written with deductible amounts comparable to those on similar policies carried by other companies engaged in businesses similar in size, character and other respects to those in wh ich the procuring entity is engaged. All property and casualty insurance policies required by Section 6.4(a) hereof shall contain a standard non-contributory mortgagee clause showing the interest of the Fiscal Agent as first mortgagee and shall provide for payment to the Fiscal Agent of the net proceeds of insurance resulting from any claim for loss or damage thereunder in excess of $250,000 per claim. All policies of insura nce required by Section 6.4(a) hereof shall provide for at least ten (10) days’ prior written notice of cancellation due to non-payment of renewal premium and thirty (30) days’ prior written notice of the restriction, cancellation for any other reason besides non- payment of renewal premium, or modification thereof to the Fiscal Agent, with a copy to the Funding Lender and the Servicer. The Fiscal Agent shall not be required to take any action upon such receipt of such a notice, unless it receives written directions from the Funding Lender. The policy evidencing liability insurance required by Section 6.4(a) hereof shall name the Governmental Lender, the Servicer, the Funding Lender and the Fiscal Agent as additional insureds. The Borrower acknowledges that a security interest in the policies of property and casualty insurance required by Section 6.4(a) and the net proceeds thereof is being granted to the Fiscal Agent pursuant to the Mo rtgage. Upon request of the Funding Lender, the Borrower will assign and deliver (which assignment shall be deemed to be automatic and to have occurred upon the occurrence of an Event of Default hereunder) to the Fiscal Agent, the policies of property and casualty insurance required under Section 6.4(a), so and in such manner and form that the Funding Lender shall at all times, upon such request and until the payment in full of the Governmental Notes, have and hold said policies and the net proceeds thereof as collate ral and further security under the Mortgage for application as provided in the Mortgage. The policies under Section 6.4(a) hereof shall contain appropriate waivers of subrogation.
(c) Copies of the policy or certificate (or binder) of insurance required by Section 6.4(a) hereof shall be delivered to the Funding Lender and the Servicer, with a copy of the certificate to the Fiscal Agent on or before the Conversion Date. The Borrower shall deliver to the Fiscal Agent, the Funding Lender and the Servicer, before the first (1
st) Business Day of each calendar year thereafter, a certificate dated not earlier than the immediately preceding month reciting that there is in full force and effect insurance of the types and in the amounts required by this Section 6.4. The Fiscal Agent shall be entitled to rely on these certificates as to the compliance with the insurance requirements without further inquiry. Prior to the expiration of each such policy, the Borrower shall furnish the Fiscal Agent, with copies to the Funding Lender and the Servicer, with evidence that such po licy has been renewed or replaced or is no longer required by this Agreement. The Borrower shall pr ovide such further information with respect to the insurance coverage required by this Agreement as the Funding Lender and/or the Servicer may, from time to time, reasonably require.
(d) The net proceeds of the property and casualty insurance carried pursuant to the provisions of Section 6.4(a) hereof shall be applied as provided in the Mortgage a nd the net proceeds of the liability insurance required by Section 6.4(a) hereof shall be a pplied, with the prior written consent of the Funding Lender toward extinguishment or satisfaction of the liability with respect to which such insurance proceeds may be paid.
(e) The Borrower covenants and agrees to provide prompt written notice of any casualty or loss regarding the Project Facilities to the Funding Lender and the Servicer.

Section 6.5 Compliance with Other Contracts and Funding Loan Documents. The Borrower will comply with all of its covenants and agreemen ts under the Funding Loan Documents to which it is a party, as the same may hereafter be amended or supplemented from time to time, and each of such covenants [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

20 is incorporated herein by reference as if fully set forth herein. The Borrower acknowledges that the Funding Loan Agreement imposes certain obligations upon the Borrower and the Borrower agrees to discharge such obligations as if they were fully set forth herein (notwithstanding that the Borrower is not a party to the Funding Loan Agreement). The Borrower shall comply with all of its covenants and agreements under the Subordinate Debt Documents and the Ground Lease. The Borrower shall comply in all material respects with, or cause to be complied with, all requirements and conditions of all Material Contracts and insurance policies which relate to the Borrower or the Project Facilities. The Borrower shall maintain the HAP Contract in full force and effect for the Project F acilities while the Governmental Notes are Outstanding; provided, however that any loss or reduction in HAP Contact subsidy which is not the due to Borrower default shall not rise to an Event of Default under the Funding Loan Documents.

Section 6.6 Maintenance of Project Facilities. The Bo rrower will, at its sole expense and as one of the Expenses (including use of the funds on deposit in the Acc ounts, in accordance with the terms of the Funding Loan Agreement and the Replacement Reserve Agreement), (i) use commercially reasonable efforts to maintain and preserve the Project Facilities in good working order and repair, fit for the purposes for which they were originally erected; (ii) not perm it, commit or suffer any waste or abandonment of the Project Facilities; (iii) not use (and use reasonable efforts to not permit tenants to use) the Project Facilities for any unlawful purpose and use reasonable efforts to not permit any nuisance to exist thereon; (iv) promptly make such repairs or replacements (structural or nonstructural, foreseen or unforeseen) as are required for the proper operation, re pair and maintenance of the Project Facilities in an economical and efficient manner and consistent with customary and prudent practices, standards and procedures applicable to properties of like size and type; (v) perform all repairs or replacements in a good and workmanlike manner, and in compliance with all applicable Governmental Actions and Legal Requirements; (vi) keep and maintain abutting grounds, sidewalks, roads, parking and landscape areas which may be owned by the Borrower in good and neat order and repair; (vii) not take (or fail to take) any action, which if taken (or not so taken) would increase in any way the risk of fire or other hazard occurring to or affecting the Project Facilities; and (viii) not sell, lease (other than pursuant to residential leases), cause a Sale of or otherwise dispose of any portion of the Project Facilities, except as otherwise permitted hereunder and under the other Funding Loan Documents.

Section 6.7 Inspection Rights.
(a) The Borrower will, upon reasonable prior writte n notice, at any reasonable time and from time to time, permit the Servicer, the Funding Lender, the Governmental Lender, and the agents or representatives of the Servicer, the Funding Lender a nd the Governmental Lender, to examine and copy and make abstracts from the records and books of account of, and visit the properties of, the Borrower, and to discuss the affairs, finances and accounts of the Borrower with the General Partner and the Accountant.

Upon reasonable prior notice, and subject to the rights of tenants, the Borrower will permit the Engineering Consultant to inspect, or cause to be inspected, the Project Facilities at any reasonable time or times as the Funding Lender may direct. The Borrower shall pay or reimburse the Funding Lender and the Servicer on demand for reasonable fees and expenses incurred in connection with such inspections. (b) After the Engineering Consultant shall have inspected, or caused to have been inspected, the Project Facilities, the Engineering Consultant shall send written notice to the Funding Lender notifying the Funding Lender of the nature and extent of capital needs of the Project Facilities, if any, which are, in the Engineering Consultant’s professional judgment, necessary to maintain and preserve the Project Facilities in accordance with the standards set forth in Section 6.6 hereof, and which are not addressed in the Annual Budget for the Project Facilities. Af ter considering the Engineering Consultant’s recommendation, the Funding Lender shall approve the Engineering Consultant’s notice and the Funding Lender (or the Servicer) shall notify the Borrower of the work which the Engineering Consultant [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

21 recommends be performed in order to comply with the requirements of Section 6.6 hereof and the time period over which, in its professional judgment, such work should be commenced and completed. (c) The Borrower shall promptly commence and diligently complete the work recommended by the Engineering Consultant within the time period set forth in the report. If the Borrower fails to complete the work within such time period, the Funding Lender, at the Funding Lender’s discretion, may complete such work for and on the Borrower’s beha lf and may do any act or thing the Funding Lender deems necessary or appropriate to that end. Th e expenses incurred by the Funding Lender in completing such work shall bear interest at the Default Rate, shall be borne by the Borrower and shall be reimbursed to the Funding Lender immediately upon demand. All work performed by the Borrower shall be performed in a good and workmanlike manner and shall be co mpletely free and clear of any mechanics or materialman’s liens and encumbrances and shall be subject to the requirements of Section 6.6 hereof.

Section 6.8 Keeping of Books. The Borrower will keep proper books of record and account, in which full and correct entries shall be made of financial transactions and the assets and operations of the Borrower in accordance with GAAP or other accounting method acceptable to Funding Lender, and have a complete audit of such books of record and account made by the Accountant for each Fiscal Year.

Section 6.9 Reporting Requirements. The Borrower will furnish or cause to be furnished to the Servicer and the Funding Lender the following in form satisfactory to the Funding Lender and in such number of copies as the Funding Lender may reasonably require:
(a) As soon as available and in any event within forty-five (45) days after the close of each fiscal quarter of each Fiscal Year of the Borrower:
(1) unaudited financial statements for the Borrower and the Project Facilities, including a balance sheet and related statement of income as of the end of such fiscal quarter and for such fiscal quarter and the cu rrent Fiscal Year to th e end of such fiscal quarter, which shall be internally prepared and presented on a consistent basis; and (2) a certificate signed by an Authorized Person stating that, except as disclosed in such certificate, (i) during such fiscal quarter the Borrower has observed and performed all of its covenants and agreements set forth in this Agreement and the other Funding Loan Documents (including the rules qualifying the interest payable on the Governmental Notes for federal tax exemption pursuant to Section 142(d) of the Code and the regulations issued thereunder), except as disclosed in such certificate, (ii) if the Project Facilities have received a tax credit allocation, during such fiscal quarter the Project Facilities have complied with the requirements of Section 42 of the Code and the regulations issued thereunder, and (iii) no Event of Default has occurred or exists. (b) As soon as available and in any event within one hundred twenty (120) days after the close of each Fiscal Year of the Borrower:
(1) audited financial statements for the Borrower, on a consolidated basis, including a balance sheet and related statem ents of income and changes in financial position as of the end of such Fiscal Year and for such Fiscal Year, which shall be prepared and reported on without qualification by th e Accountant in accordance with GAAP, and shall fairly present the financial condition of the Borrower and the Project Facilities as of the end of such Fiscal Year;
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

22 (2) a certificate signed by an Authorized Person stating that (i) during such Fiscal Year the Borrower has observed and performed all of its covenants and agreements set forth in this Agreement and the other Funding Loan Documents, except as disclosed in such certificate, and (ii) no Default or Even t of Default has occurr ed or exists, except as disclosed in such certificate; and
(3) an occupancy report stating as of the last day of the month prior to the date of delivery thereof, with respect to each lease of all or any part of the Project Facilities, the tenant’s name, the date thereof, the prem ises demised, the term, the rent, the security deposits, any advance rent payments in excess of one month and any defaults by the tenant or the Borrower in respect thereof (including, without limitation, the amounts of arrearages).
(c) As soon as possible and in any event within twenty-five (25) days after the end of each calendar month, operating statements of the Project Facilities certified by an Authorized Person and containing itemized information regard ing all items of expense and income as well as occupancy reports, a rent roll and, if required by the Funding Lender, other reports such as reports on concessions, security deposits and advance rents, all in such detail as may be required by the Funding Lender;
(d) As soon as available and in any event within sixty (60) days after the close of each Fiscal Year of the Borrower, draft audited financial statements for the Borrower, on a consolidated basis, including a balance sheet and related statements of income and changes in financial position as of the end of such Fiscal Year and for such Fiscal Year, which shall be prepared and reported on without qualification by the Accountant in accordan ce with GAAP, and shall fairly present the financial condition of the Borrower and the Project Facilities as of the end of such Fiscal Year; (e) Upon receipt thereof by the Borrower (and in any event within five (5) Business Days after receipt thereof), copies of any letter or report with respect to the management, operations or properties of the Borrower submitted to the Borrower by the Accountant in connection with any annual or interim audit of the Borrower’s acc ounts, and a copy of any written response of the Borrower to any such letter or report;
(f) As soon as possible and in any event within five (5) Business Days after receipt of notice thereof, written notice of any pending or threatened litigation, investigation or other proceeding involving the Borrower, the Administrative General Partner, the Managing General Partner, the Guarantor or the Project Facilities; (i) which could have a material adverse effect on the operations or financial condition of the Borro wer, the Administrative General Partner, the Guarantor or the Project Facilities; (ii) wherein the potential damages, in the reasonable judgment of the Borrower, are not fully covered by the insurance policies maintained by the Borrower (except for the deductible amounts applicable to such policies); or (iii) which challenges the exclusion from gross income of interest on the Governmental Notes for purposes of federal income taxation; (g) As soon as possible (and in any event within five (5) Business Days after receipt of notice thereof), notice of any material adverse change in the operations or financial condition of the Borrower, the Administrative General Partner, the Guarantor or the Project Facilities which has a material adverse effect on such party’s ability to perform its obligations under the Funding Loan Documents;
(h) Following delivery thereof by the Borrower, copies of any reports, certifications, financial information, compliance documents, re bate information, aud its and all other items [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

23 submitted by or on behalf of the Borrower will be provided to the Servicer, the Funding Lender and the Governmental Lender (but only if requested);
(i) [Reserved];
(j) As and when required under the Land Use Restriction Agreement, the monthly compliance certificates, the annual copies of IRS Forms 8703 and other reports and notices required to be delivered under the Land Use Restriction Agreement; (k) As soon as possible after receipt thereof by the Borrower (and in any event within five (5) Business Days after receipt thereof), notice of the cancellation or expiration (without renewal or replacement) of any insurance required to be maintained by this Agreement; (l) Not later than forty-five (45) days after the Stabilization Date, a Stabilization certificate in the form set forth on Schedule 5 hereto; (m) As soon as possible and in any event within fifteen (15) days after the occurrence of an Event of Default, a statem ent of the Administrative General Partner setting forth the details of such Event of Default and the action which the Borrower proposes to take with respect thereto; (n) Contemporaneously with the delivery to the Funding Lender or the Fiscal Agent copies of any notices, reports or other information provided to the Funding Lender or the Fiscal Agent under the Funding Loan Documents;
(o) Copies of IRS Forms 8609 as issued and received by the Borrower (in any event within ten (10) Business Days after receipt thereof);
(p) As soon as possible (and in any event within five (5) Business Days after receipt of notice thereof), written notice of any violation of the terms and conditions of the Ground Lease and a copy of any notice it receives from the landlord under the Ground Lease; (q) Upon receipt thereof (and in any event within ten (10) Business Days after receipt thereof), copies of all real estate tax bills and insurance bills; (r) Prior to March 1 st of each year (and in any event within ten (10) Business Days after receipt thereof), all tax returns of the Borrower and the Administrative General Partner; provided, however, the Administrative General Partner may receive a fifteen (15) business day extension with respect to tax returns for any tax year prior to [203_]; and (s) Such other information respecting the ope rations and properties, financial or otherwise, of the Borrower as the Funding Lender or the Servicer may from time to time reasonably request.

Section 6.10 Tax-Exempt Status.
(a) It is the intention of the parties hereto that interest on the Governmental Notes shall be and remain excludable from gross income for federal income tax purposes, and, to that end, the covenants and agreements of the Governmental Lender and the Borrow er in this Section are for the benefit of each and every holder of the Governmental Notes.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

24 (b) The Borrower covenants and agrees that it will not knowingly use or permit the use of any of the funds provided by the Governmental Lender hereunder or knowingly use or invest or permit the use or investment of any other funds of the Borrower directly or indirectly, or direct the Fiscal Agent to invest any funds held by it hereunder or under the Funding Lo an Agreement or otherwise, in such manner as would cause the Governmental Note to be an “arbitrag e bond” within the meaning of Section 148 of the Code, a “hedge bond” within the meaning of Section 149 of the Code, or “federally guaranteed” within the meaning of Section 149(b) of the Code and appli cable regulations promulgated from time to time thereunder. The Borrower covenants and agrees that ne ither it, nor any “related person” (as defined in Section 147(a)(2) of the Code) will enter into any arrangement, formal or informal, for the purchase of the Governmental Note. The Borrower covenants and agrees that it will observe and not violate the requirements of Section 148 of the Code and any such applicable regulations which, in the opinion of Tax Counsel, are applicable to the Borrower or to the Governmental Note. The Borrower acknowledges that, under the provisions of the Foreign Account Tax Compliance Act, the Fiscal Agent is obligated to withhold a percentage of the proceeds from any disbursement to a payee that has not delivered to the Fiscal Agent a tax identification number on a correctly completed IR S Form W-9. If requested by the Fiscal Agent, the Borrower shall provide the Fiscal Agent with a copy of any such completed Form W-9 form for the initial disbursement to any payee pursuant to any provision hereof or of any of the other Funding Loan Documents. (c) At least 95% of the net proceeds of the Governmental Notes (within the meaning of the Code) actually expended were used to pay qualified co sts of the Project Facilities that are costs of a “qualified residential rental project” (within the meaning of Sections 142(a)(7) and 142(d) of the Code) and property that is “functionally related and subordinate” thereto (within the meaning of Sections 1.103-8(a)(3) and 1.103-8(b)(4)(iii) of the Regulations).
(d) In the event that at any time the Borrower is in receipt of an opinion of Tax Counsel to the effect that for purposes of this Section or the Funding Loan Agreement it is necessary to further restrict or limit the Yield on the investment of any money held by the Fiscal Agent under the Funding Loan Agreement beyond those situations and periods outlined in this Agreement or the Tax Certificate dated the Bond Closing Date, the Borrower shall notify the Fiscal Agent in writing of the limitations which, in the opinion of Tax Counsel, apply to the investment of such funds and instruct the Fiscal Ag ent to comply with these limitations.
(e) As additional consideration for the purchase of the Governmental Notes by the purchaser thereof and the loan of the money represented there by, and in order to induce such purchase by measures designed to insure the excludability from gross income of the interest thereon for federal income tax purposes, the Borrower shall deliver to the Fiscal Agent, within 25 days after each Computation Date, (1) a statement, signed by the Rebate Analys t stating the applicable portion of the Rebate Amount as of such Computation Date whic h must be paid over to the United States of America under section 148(f) of the Code taking into account all Gross Proceeds of the Governmental Notes (“Rebate Report”), and
(2) if required, an Internal Revenue Se rvice Form 8038-T completed as of such Computation Date and such other Internal Revenue Service forms or other statements or forms required by the Code, Regulations, or other admi nistrative rule, procedure, announcement, or guidelines.
(f) If the Borrower shall discover or be notified as of any date that any payment made to the United States Treasury pursuant to Section 4.5(c) of the Funding Loan Agreement shall have failed to

satisfy any requirement of the Regulations (whether or not such failure shall be due to any default by the Borrower, the Governmental Lender, or the Fiscal Agent), the Borrower shall (i) deliver to the Fiscal Agent [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

25 a brief written explanation of such failure and any basis for concluding that such failure was innocent and (ii) pay to the Fiscal Agent (for deposit to the Rebate Fund) and cause the Fiscal Agent to pay to the United States Treasury from the Rebate Fund, within 60 days after such discovery or notice, the “correction amount” in respect thereof specified in Regulation S ection 1.148-3(h) together with the explanation described in the immediately preceding clause (i) and the other documents required by Section 4.5(c) of the Funding Loan Agreement to accompany such payment from the Rebate Fund. (g) The Borrower shall retain as part of the offi cial transcript all of its accounting records relating to the funds held under the Funding Loan Ag reement and the Rebate Fund and all calculations made in preparing the statements described in this S ection for at least six years after the final payment of the Governmental Notes, whether by reason of maturity or prior prepayment. (h) The Borrower shall not knowingly use or permit the use of any proceeds of Governmental Notes or any funds of the Borrower, directly or indir ectly, in any manner, and shall not knowingly take or permit to be taken any other action or actions which would conflict with the covenants contained herein or in the Land Use Restriction Agreement. The Borrower acknowledges that such covenants are designed for the purpose of ensuring that the Governmental Notes are treated as an obligation described in Section 103(a) of the Code.
(i) Notwithstanding any provisions of this Section, if the Borrower shall provide to the Fiscal Agent and the Governmental Lender an Approving Op inion of Tax Counsel that any specified action required under this Section and Section 4.5(c) of the Funding Loan Agreement is no longer required or that some further or different action is required to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Governmental Notes, the Fiscal Agent, the Governmental Lender and the Borrower may conclusively rely on such opinion in complying with the requirements of this Section and Section 4.5(c) of the Funding Loan Agreement and be protected in so doing, and the covenants hereunder shall be deemed to be modified to that extent. (j) The Governmental Lender covenants and agrees that it has not taken and will not take, or permit to be taken by parties within its control, and the Borrower covenants and agrees that it has not taken or permitted to be taken and will not take or permit to be taken, any action which will cause the interest on the Governmental Notes to become includable in gr oss income for purposes of federal income taxation pursuant to the provisions of Section 103(a) of the Code, provided that neither the Borrower nor the Governmental Lender shall have violated these cove nants if the interest on the Governmental Notes delivered in accordance with Section 103 of the Code becomes includable in gross income for purposes of federal income taxation to a person solely because such person is a “substantial user” of the Project or a “related person” within the meaning of Section 147(a) of the Code. (k) The Borrower hereby covenants that the Project Facilities and each unit thereof constitute and will constitute a qualified residential rental project , as defined in Section 142(d) of the Code and the regulations thereunder, and that each residential unit in the Project Facilities (other than a reasonable number of units for resident manager or other administrative use) will be rented or available for rental on a continual basis to members of the general public for the period required by said Section. The Project Facilities consists of one or more proximate buildin gs or structures containing one or more similarly constructed accommodations containing separate and complete facilities for living, sleeping, eating, cooking and sanitation which are to be used on ot her than a transient basis and facilities which are functionally related and subordinate to such accommodations. The Borrower and the Governmental Lender have elected to apply the requirements of Section 142(d)(1)(B) to the Project Facilities. Commencing on the Bond Closing Date and continuing throughout th e remainder of the Qualified Project Period, the Borrower represents, covenants and agrees that no less than 40% of the total number of units of the Project Facilities shall be, at all times, rented to and occupied by Low Income Tenants.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

26 (l) The Borrower further agrees that it shall not discriminate on the basis of race, creed, color, sex or national origin in the lease, use or occupanc y of the Project Facilities or in connection with the employment or application for employ ment of persons for the operation and management of the Project Facilities.
(m) The Borrower further covenants that it has not executed and will not execute any other agreement, or any amendment or supplement to any ot her agreement, with provisions contradictory to, or in opposition to, the provisions hereof and of the Land Use Restriction Agreement and that, in any event, the requirements of this Agreement and the Land Use Restriction Agreement are paramount and controlling as to the rights and obligations herein set forth and supersede any other requireme nts in conflict herewith and therewith.
(n) The Borrower further covenants that it will not allow any proceeds of the Governmental Notes to be used to provide any airplane, skybox or other private luxury box, health club facility, facility primarily used for gambling or facilities the primary purpose of which is the sale of alcoholic beverages for consumption off premises.
(o) The Borrower covenants and agrees not to a llow the amount of Gross Proceeds invested during any Bond Year in Nonpurpose Investments with a Yield in excess of the Yield on the Governmental Notes to exceed the amounts deposited in any other reserves required to be deposited or otherwise set aside by the Borrower to the extent that such amounts exceed 10% of the proceeds of the Governmental Notes; and provided, further, that amounts invested in th e Funding Loan Fund or for an initial temporary period until needed for the governmental purpose of the Governmental Notes shall at no time be considered subject to such restriction.
(p) The Borrower covenants and agrees that with regard to the Funding Loan Fund (i) such fund will be depleted at least once a year, except possibly for a carryover amount not to exceed the greater of the previous Bond Year’s earnings on the Funding Loan Fund or one-twelfth of the previous Bond Year’s debt service requirements on the Governmental Notes; (ii) all amounts deposited to such fund will be spent within 13 months of deposit; and (iii) all amounts received from investment of such fund will be deposited therein and will be expended within twelve months of receipt. (q) As of the Conversion Date, the Borrower is in compliance with all requirements pertaining to the Borrower set forth in the Tax Certificate, incl uding the terms and conditions of the exhibits thereto, and the representations set forth therein pertaining to the Borrower and the Project Facilities are true and accurate.
(r) The Borrower will promptly notify the Governmental Lender, the Funding Lender and the Servicer if at any time the dwelling units in the Project Facilities are not available for occupancy as required by the Land Use Restriction Agreement and, upon requ est, the Borrower will provide the Governmental lender, the Funding Lender and the Servicer a copy of the compliance certificates required to be filed by the Borrower under and at the times provided by the Land Use Restriction Agreement.

Section 6.11 Single Purpose Entities.
(a) The Borrower and the Administrative General Partner shall (i) not engage in any business or activity, other than the ownership, leasing, ope ration and maintenance of the Project Facilities and activities incidental thereto; and (ii) not acquire, ow n, hold, lease, operate, mana ge, maintain, develop or improve any assets other than the Project Facilities and such personal property as may be necessary for the operation of the Project Facilities and shall conduc t and operate its business as presently conducted and operated.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

27 (b) The Borrower and the Administrative General Pa rtner shall (i) not maintain its assets in a way difficult to segregate and identify; (ii) ensure that business transactions between the Borrower and any Affiliate of the Borrower or any Affiliate of a Ge neral Partner shall be en tered into upon terms and conditions that are substantially similar to those that would be available on an arms-length basis with a third Person other than such General Partne r, or any respective Affiliate thereof; (iii) not incur or contract to incur any obligations, secured or unsecured, direct or contingent (including gua ranteeing any obligation), other than, in the case of the Borrower, the Obligations evidenced by this Agreement and the other Funding Loan Documents and the Subordinate Debt Documents, or unsecured loans or guaranty payments made by the partners of the Borrower or the Guarantor pursua nt to the Partnership Agreement, or unsecured trade payables or developer fee; (iv) not make any loans or advances to any third Person (including any Affiliate of the Borrower or the General Partner), except as otherwise permitted under this Agreement or the Funding Loan Documents; (v) do or cause to be done all things necessary to preserve its existence; (vi) not amend, modify or otherwise change its partnership certificate, Partnership Agreement, articles of incorporation or bylaws without obtaining the prior written consent of the Funding Lender, except as necessary to effectuate or document Permitted Transfers; (vii) conduct an d operate its business as presently conducted and operated; (viii) maintain its books and records and bank accounts separate from those of its Affiliates; (ix) be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate); (x) f ile its own tax returns; (xi) main tain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations and in any event not less than that required under State law in order to remain a separate legal entity; (xii) not seek or consent to the dissolution or winding up, in whole or in part, of the Borrower, the Administrative General Partner or the Managing General Partner; (xiii) not (A) consent to the dissolution or liquidation in whole or in part of the Borrower, or (B) permit the Administrative General Partner to dissolve, or (C) consent to the dissolution or liquidation of the Administrative General Partner or the Managing General Partner; (xiv) not commingle the funds and other assets of the Borrower with those of the Administrative General Partner or the Managing General Partner, any Affiliate thereof or any other Person; and (xv) not enter into any transaction with an Affiliate without the prior written consent of the Funding Lender (it being understood that the Manage ment Agreement and the Development Agreement have been approved by the Funding Lender) or as e xpressly permitted pursuant under the Funding Loan Documents.

Section 6.12 Negative Pledge; No Sale.
(a) The Borrower will not create, in cur, assume or permit to exist any mortgage, pledge, security interest, encumbrance or other Lien upon the Project Fac ilities or any property, tangible or intangible, now owned or hereafter acquired (including without limita tion property leased to or being acquired by the Borrower under capital leases or installment sale agreements), by the Borrower (the sale with recourse of receivables or any “sale and lease back” of any fixed assets being deemed to be the giving of a lien thereon for money borrowed), other than Permitted Encumbrances. (b) Other than Permitted Transfers, Permitted En cumbrances and the making of residential leases, the Borrower shall not sell, assign, transfer, convey or otherwise dispose of the Project Facilities, or any part thereof, or permit or consent to a Sale without in each instance (i) obtaining the express prior written consent of the Funding Lender, which consent may be withheld or granted (subject to the payment of such fees and the satisfaction of other conditions as set forth in Section 1.12 of the Mortgage) in the Funding Lender’s sole and absolute discretion; and (ii) complying with the applicable requirements of the Land Use Restriction Agreement.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

28 Section 6.13 Payment of Indebtedness; Accounts Payable; Restrictions on Indebtedness. (a) The Borrower will pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of the Borrower’s Indebtedness under the Funding Loan Documents, the Subordinate Debt Documents and all of its other Obligations, whether now existing or hereafter arising, and comply with all covenants a nd agreements set forth in agreements evidencing Obligations of the Borrower.
(b) The Borrower shall pay or cause to be paid the Expenses, and capital expenditures and its other accounts payable with respect to and costs of operation and maintenance of the Project Facilities within thirty (30) days of receipt of an invoice th erefor, or when the same shall otherwise be due and payable. The Borrower shall make no distribution of funds to its partners unless no uncured Default or Event of Default exists, such distribution is in accordance with the provisions of the Partnership Agreement, and all current accounts payable shall have been paid and funds shall have been set aside for the payment of accounts payable becoming due within thirty (30) days of said distribution. In addition, the Borrower shall not make any payment to the Administrative General Partner, the Managing General Partner or to any managers, officers or directors thereof, prior to the required monthly payment of the Borrower’s Indebtedness under the Funding Loan Documents, the funding of any required reserves under the Funding Loan Documents and the payment of any of its other Obligations then due and payable. (c) Without obtaining the prior written consent of the Funding Lender, the Borrower will not create, incur, assume, guarantee or be or remain liabl e for any indebtedness or Ob ligations other than (i) Indebtedness under the Funding Loan Documents; (ii) Indebtedness in respect of the Subordinate Debt; (iii) current liabilities of the Borrower relating to the Project Facilities incurred in the ordinary course of business but not incurred through the borrowi ng of money or obtaining of credit; and (iv) any unsecured loans or guaranteed payments from partners or their Affiliates or the Guarantor pursuant to the Partnership Agreement.

Section 6.14 Environmental Covenants.
(a) The Borrower will cause and certify that all activities at the Project Facilities during the term of this Agreement to be conducted in full co mpliance with all applicable Environmental Laws. The Borrower will obtain all Governmental Actions and will make all notifications, as required by Environmental Laws, and will, at all times, comply with the terms and conditions of any such Governmental Actions or notifications. During the term of this Agreement, if requested by the Funding Lender or the Servicer, the Borrower will provide to the Funding Lende r and the Servicer copies of (i) applications or other materials submitted to any Governmental Authority in compliance with Environmental Laws, (ii) any notifications submitted to any Pers on pursuant to Environmental Laws , (iii) any Governmental Action granted pursuant to Environmental Laws, (iv) any record or manifest required to be maintained pursuant to Environmental Laws, and (v) any correspondence, notice of violation, summons, order, complaint or other document received by the Borrower, its lessees, sub-lessees or assigns, pertaining to compliance with any Environmental Laws.
(b) The Borrower will, at all times during the te rm of this Agreement, cause Hazardous Substances used at the Project Facilities to be handled , used, stored and disposed in accordance with all Environmental Laws and in a manner which will not cause an undue risk of Contamination. (c) The Borrower will cause all renovation of existin g structures at the Project Facilities, if any, during the term of this Agreement to use desi gn features which safeguard against or mitigate the accumulation of radon or radon products in concentr ations exceeding the EPA’s recommended threshold of 4.0pCi/L.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

29 (d) The Borrower shall not install or permit to be installed any temporar y or permanent tanks for storage of any liquid or gas above or below ground, except after obtaining written permission from the Funding Lender to do so and in compliance with Environmental Laws. (e) The Borrower has implemented, or shall implement, a moisture management and control program (the “Moisture Management Program”) for the Improvements at the Project Facilities to prevent the occurrence of mold, dangerous fungi, bacterial or microbial matter contamination or pathogenic organisms that reproduces through the release of spores or the splitting of cells (collectively, “Mold”), at, on or under the Project Facilities, which Moisture Management Program shall include, at a minimum: (a) periodic inspections of the Improvements at the Proj ect Facilities for Mold, (b) removing or cleaning up any Mold and in a manner consistent with best industry practices and utilizing an experienced remediation contractor acceptable to and approved by the Funding Lender, and (c) in the event that the Mold identified at the Improvements at the Project Facilities cannot be removed or cleaned from any impacted building materials (e.g., porous materials such as carpeting, certain types of ceiling materials, etc.) and/or equipment, removing all such impacted building materials and/ or equipment from the Project Facilities, all in accordance with the procedures set forth in the EPA’s guide entitled “Mold Remediation in Schools and Commercial Buildings”, EPA No. 402-K-01-001, dated March 2001 and in a manner consistent with best industry practices and utilizing an experienced remedi ation contractor acceptable to and approved by the Funding Lender. The Borrower shall include as part of every residential lease a Moisture Disclosure Statement in the form attached hereto as Exhibit B. The Borrower further covenants and agrees that, in connection with any mold remediation undertaken by or on behalf of the Borrower hereunder, the source (e.g., leaking pipe, water damage, water infiltration, et c.) of any Mold at the Improvements at the Project Facilities shall be promptly identified and corrected to prevent the occurrence or re-occurrence of any Mold. (f) Upon the occurrence and during the continuance of an Event of Default, or if the Funding Lender has reason to believe that there has occurred and is continuing a violation of Environmental Law or that there exists a condition that could give rise to any Governmental Action, the Funding Lender may, at its discretion, commission an investigation at the Bo rrower’s expense of (i) compliance at the Project Facilities with Environmental Laws, (ii) the presence of Hazardous Substances or Contamination at the Project Facilities, (iii) the presence at the Project Facilities of materials which are described in clause (b) of Section 5.12, (iv) the presence at the Project Facilities of Environmentally Sensitive Areas, (v) the presence at the Project Facilities of radon products, (vi) the presence at the Project Facilities of tanks of the type described in paragraph (e) of Section 5.12 or in pa ragraph (d) of Section 6.14 above, or (vii) the presence of Mold at the Project Facilities. In connection with any investigation pursuant to this paragraph, the Borrower, and its lessees, sub-lessees and assi gns, will comply with any reasonable request for information made by the Funding Lender or the Servicer or their agents in connection with any such investigation. Any response to any such request for information will be full and complete. The Borrower will assist the Funding Lender or the Servicer and their agents to obtain any records pertaining to the Project Facilities or to the Borrower and the lessees, sub-lessees or assigns of the Borrower in connection with an investigation pursuant to this paragraph. The Bo rrower will permit the Funding Lender and the Servicer and their agents access to all areas of the Project Facilities at reasonable times and in reasonable manners, subject to the rights of tenants, in connection with any investigation pursuant to this paragraph. No investigation commissioned pursuant to this paragra ph shall relieve the Borrower from any responsibility for its representations and warranties under Section 5.12 hereof or under the Environmental Indemnity Agreement.
(g) In the event of any Contamination affecting the Project Facilities, whether or not the same originates or emanates from the Project Facilities or any contiguous real estate, or if the Borrower otherwise shall fail to comply with any of the requirements of Environmental Laws, following notice and expiration of any applicable cure period, the Funding Lender may, at its election, but without the obligation so to do, give such notices, cause such work to be performed at the Project F acilities and take any and all other [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

30 actions as the Funding Lender shall deem necessary or advisable in order to remedy said Contamination or cure said failure of compliance and any amounts paid as a result thereof, together with interest thereon at the Default Rate from the date of payment by the Fu nding Lender, shall be imme diately due and payable by the Borrower and until paid shall be added to and become a part of the Indebtedness and shall have the benefit of the lien hereby created as a part thereof prior to any right, title or interest in or claim upon the Project Facilities attaching or accruing subsequent to the lien of the Mortgage on the Project Facilities.

Section 6.15 Servicer. The Borrower acknowledges and agrees that (i) the Funding Lender has the sole and exclusive right to arrange for servicing of the Borrower Loan and to appoint another person or entity to serve as its representative hereunder, unde r the other Funding Loan Documents and under the Funding Loan Agreement; (ii) the Funding Lender has appointed Lument Real Estate Capital, LLC to serve in the capacity of Servicer hereunder, under the ot her Funding Loan Documents and under the Funding Loan Agreement; and (iii) the Funding Lender retains the sole and exclusive right to appoint, remove or replace the Servicer, without the consent or approval of the Borrower. The Borrower shall comply with directions of the Funding Lender and the Servicer as set forth more particularly herein.

Section 6.16 Tax Returns. The General Partner will timel y file all tax returns for itself and for the Borrower, pay or cause to be paid when due all taxes imposed on their operations, assets, income or properties, and, upon request, provide copies of such re turns and receipts for payment of such taxes to the Funding Lender and the Servicer.

Section 6.17 Leases. Except for the Ground Lease and leases to residential tenants in compliance with the Land Use Restriction Agreemen t and leases for services associ ated with residential rental properties (such as laundry and cable leases), (i) the Borrower hereby represents that there are no leases or agreements to lease all or any part of the Project Facilities now in effect and (ii) the Borrower shall not enter into or become liable under, any leases or agreements to lease all or any part of the Project Facilities without the prior written approval thereof and of the prospective tenant by the Funding Lender.

Each lease of residential units in the Project Facilities to a residential tenant shall be on a form of lease approved by the Funding Lender and shall be in co mpliance with the requirements of the Land Use Restriction Agreement.

Section 6.18 Further Assurances. The Borrower will promptly and duly execute, acknowledge and deliver from time to time such further instrument s and take such further actions as may be reasonably required by the Governmental Lender, the Funding Lende r or the Servicer to carry out the purposes and provisions of this Agreement and the other Funding Loan Documents, to confirm the priority and/or perfection of any lien, pledge, assignment or security in terest created or intended to be created by this Agreement and to assure the Funding Lender of the subrogation and security rights in favor of the Funding Lender (or the Fiscal Agent for the benefit of the Funding Lender) for the benefit of the Noteowners of the Governmental Notes contemplated by this Agreement, by the other Funding Loan Documents and by the Funding Loan Agreement. The Borrower shall obtain any approvals required under the Ground Lease and the Subordinate Debt Documents in connection with any of the foregoing.

Section 6.19 Management Agreement. The Borrower has entered into a property management agreement in a form approved by the Funding Lender w ith the Manager (together with any extension and replacements thereof and as the same may be amended, modified or supplemented from time to time the “Management Agreement”). Under the Management Agreement, the Manager shall provide certain management services and shall be entitled to receive as compensation for those services an amount not in excess of the Underwritten Management Fee. Any amounts due the Manager in excess of the Underwritten Management Fee shall be subordinated to the payment by the Borrower of all principal of, premium, if any, and interest due on the Governmental Notes, all Third Party Costs, all required deposits into the Accounts and all other amounts identified in the Assignment of the Management Agreemen t and all payments due [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

31 under the Ground Lease. The Borrower shall not replace the Manager for the Project Facilities without the Funding Lender’s prior written approval, and, except for cause, the Management Agreement shall not be terminated or modified without the Funding Lender’s prior written approval, which in each case shall not be unreasonably withheld, cond itioned or delayed. In the event the Manager resigns or is removed, the Borrower shall promptly seek a repl acement Manager and submit such Ma nager and its proposed form of Management Agreement to the Funding Lender for approval; if the Borrower has not done so within thirty (30) days of becoming aware of such resignation or removal, the Funding Lende r may (but shall not be required to) engage a new Manager on terms satisfactory to the Funding Lender in its sole discretion and at the expense of the Borrower (and subject to the requi red approvals of any Governmental Authority, as maybe applicable). The sole and exclusive comp ensation (exclusive of reimbursement for expenses pursuant to the applicable Management Agreement) paid to manage the Project Facilities under the Management Agreement shall be as described in this Section 6.19 and in the Management Agreement. The Borrower shall have no employees whatsoever. The Manager shall execute a consent to the Assignment of the Management Agreement pursuant to which the Manager shall confirm the subordination provisions described above and agree that the Management Agr eement shall be terminable by the Funding Lender, with or without cause, on thirty (30) days’ notice following and during the existence of an Event of Default.

Section 6.20 Determination of Taxability. Neither the Borrower nor the General Partner nor any of their Affiliates shall admit in writing to the Governmental Lender or to any Governmental Authority that interest on the Governmental Notes has become includable in gr oss income for purposes of federal income taxation without first providing reasonable advance notice to the Governmental Lender, the Servicer and the Funding Lender and permitting the Funding Lender, in its sole discretion, to contest such conclusion at the expense of the Borrower and the General Partner. Promptly after the Borrower first becomes aware of any Determination of Taxability or an event th at could trigger a Determ ination of Taxability, the Borrower shall give written notice thereof to the Gove rnmental Lender, the Servicer, the Funding Lender and the Fiscal Agent.

Section 6.21 Provision of Annual Reports; Reporting of Material Events. (a) The Borrower shall, not later than 150 days after the end of the Borrower’s fiscal year, commencing within 150 days following the end of the Borrower’s current fiscal year, provide to the MSRB a report (the “Annual Report”) contai ning financial information and operating data with respect to the Project Facilities for the prior fiscal year including the name, address, number of units, number of units occupied as of the report date, average occupancy of the Project Facilities, revenues, operating expenses, net operating income, debt service on the Borrower Loan and net operating income after debt service. The Annual Report may, but is not required to, include the Borrower’s audited financial statements. (b) Any or all of the items listed above may be included by specific reference to other documents, including official statements of debt issues with respect to which the Borrower or any affiliate is an “obligated person” (as defined by Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as the same may be amended from time to time (the “Rule”)), which have been filed with the Fund ing Lender, the MSRB or the Securities and Exchange Commission. The Borrower shall clearly identify each such other document so included by reference. (c) In each case, the Annual Report may be submitted as a single document or as separate documents comprising a package, and may cross-refere nce other information as provided in this section; provided, that the financial statements of the Bo rrower may be submitted separately from the balance of the Annual Report and later than the date required above for the filing of the Annual Report if they are not available by that date. If the Borrower’s fiscal year changes, it shall give notice of such change in the same manner as for a Material Event this Section.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

32 (d) This Section shall govern the giving of noti ces of the occurrence of any of the following events (each, a “Material Event”):
(1) Principal and interest payment delinquencies;
(2) Non-payment related defaults, if material;
(3) Unscheduled draws on debt service reserves reflecting financial difficulty; (4) Unscheduled draws on credit enhancements reflecting financial difficulty; (5) Substitution of credit or liquidity providers, or their failure to perform; (6) adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax-exempt status of interest paid on the Governmental Notes, or other Listed Events affecting the tax-exempt status of interest paid on the Governmental Notes;
(7) Modifications to rights of any interest in the Funding Loan, if material; (8) optional, contingent or unscheduled prepayments of the Borrower Loan or Funding Loan, if material, and tender offers;
(9) Defeasances;
(10) release, substitution or sale of property securing repayment of the Borrower Loan or the Funding Loan, if material;
(11) Rating changes;
(12) bankruptcy, insolvency, receivership or similar event of the Borrower. For purposes of this clause (xii), any such event shall be considered to have occurred when any of the following occur: the appointment of a receiver, fiscal agent or similar officer for the Borrower in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court or Governmental Authority has assumed jurisdiction over substantially all of the assets or business of the Borrower, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or Governmental Authority, or the entry of an order confirming a plan of reorganization, arrangement or liquidation by a court or Governmental Authority having supervision or jurisdiction over substantially all of the assets or business of the Borrower; (13) the consummation of a merger, consolid ation, or acquisition involving the Borrower or the sale of all or substantially all of the assets of the Borrower, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material;
(14) appointment of a successor or additional trustee or paying agent or the change of the name of a trustee or paying agent, if material;
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

33 (15) Incurrence of a financial obligation of the Borrower or obligated person, if material, or agreement to covenants, events of de fault, remedies, priority rights or other similar terms of a financial obligation of the Borrower or obligated person, any of which affect security holders, if material; and
(16) Default, event of acceleration, termination event, modification of terms or other similar events under the terms of the financial obligation of the Borrower or obligated person, any of which reflect financial difficulties.
(e) Whenever the Borrower obtains knowledge of the occurrence of a potential Material Event, the Borrower shall, within five (5) Business Days of obtaining such knowledge and in any event no more than eight (8) Business Days after the occurrence of such event, determine if such event is in fact a Material Event that would be required by the Rule to be disclosed. (f) If the Borrower has determined th at a Material Event is required to be disclosed then the Borrower shall prepare a written notice describing the Material Event and provide the same to the Funding Lender no more than ten (10) Business Days after the occurrence of the Material Event.

Section 6.22 Use of Proceeds. Prior to the Convers ion Date, the Borrower has materially complied with all requirements of the Tax Certificate in regard to (i) the construction, improvement and equipping of the Project Facilities paid for from the proceeds of the Series 2026 Bonds and (ii) the use and investment of such proceeds.

Section 6.23 Compliance With Anti-Terrorism Regulations. Neither the Borrower, the General Partner nor any Person holding any legal or beneficial interest whatsoever in the Borrower shall at any time while the Governmental Notes are outstanding be described in, covered by or specially designated pursuant to or be affiliated with any Person described in, covered by or specially designated pursuant to Executive Order 13224 —Blocking Property and Prohibiting Transac tions with Persons Who Commit, Threaten to Commit, or Support Terrorism, as amended, or any similar list issued by OFAC or any other department or agency of the United States of America. Notwithst anding the foregoing, the Borrower and the General Partner hereby each confirm that if it becomes aware or receives any notice of any violation of the foregoing covenant and agreement (an “OFAC Violation”), the Borrower or the General Partner, as applicable, will immediately (i) give notice to the Funding Lender and the Servicer of such OFAC Violation, and (ii) comply with all Legal Requirements applicable to such OF AC Violation, including, without limitation, Executive Order 13224; the International Emer gency Economic Powers Act, 50 U. S.C. Sections 1701-06; the Iraqi Sanctions Act, Pub. L. 101-5 13, 104 Stat. 2047-55; the United Nations Participation Act, 22 U.S.C. Section 287c; the Antiterrorism and Effective Death Penalty Act, (enacting 8 U.S.C. Section 219, 18 U.S.C. Section 2332d, and 18 U.S.C. Section 2339b); the Internati onal Security and Devel opment Cooperation Act, 22 U.S.C. Section 2349 aa-9; the Terrorism Sanctions Regul ations, 31 C.F.R. Part 595; the Terrorism List Governments Sanctions Regulations, 31 C.F.R. Part 596; and the Foreign Terrorist Organizations Sanctions Regulations, 31 C.F.R. Part 597 (collectively, the “Anti-Terrorism Regulations”), and the Borrower and the General Partner hereby authorize and consent to the Funding Lender’s taking any and all reasonable steps the Funding Lender deems necessary, in its sole discretion, to comply with all Legal Requirements applicable to any such OFAC Violation, including the requirements of the Anti-Terrorism Regulations.

Notwithstanding anything to the contrary in this Section, the Borrower shall not be deemed to be in violation of the covenants and agreements set forth in the first sentence of this Section if the Borrower timely complies with all requirements imposed by the foregoing sentence and all requirements of the Antiterrorism Regulations and all other applicable Legal Requirements relating to such OFAC Violation.

Section 6.24 Adoption of Capital and Operating Budgets. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

34 (a) On or before December 1 of each Fiscal Year, the Borrower shall submit to the Funding Lender for approval a proposed capital and operating budget with respect to the Project Facilities to be effective for the next following Fiscal Year (the “Pr oposed Budget”). The Funding Lender shall have the right to approve or disapprove any Proposed Budget, which approval shall not be unreasonably withheld or delayed. Third party costs not within the Borrower’s control and costs associated with remediation of emergency conditions shall be permitted variances to the Annual Budget. If any Proposed Budget is not disapproved by the Funding Lender within forty-five (45) days following submission by the Borrower, such budget shall be deemed approved. If any budget is disapproved, the Borrower shall thereafter consult with the Funding Lender in an effort to achieve an acceptable Annual Budget for an additional thirty (30) days.

To the extent the proposed operating budget is disapproved, the operating budget for the previous Fiscal Year shall remain in effect increased by five percen t (5%) over the previous Fiscal Year (except for costs of utilities, Impositions and insurance and other third-party costs or cost associated with remediation of emergency conditions which shall be permitted variances to the Proposed Budget) until the parties resolve their differences. In addition to, and not in limitation of the foregoing, each Annual Budget may be revised from time to time with approval of Funding Lender to reflect changes to Expenses and proposed Capital Expenditures set forth in the then-current Annual Budget. (b) Without limiting the generality that each Proposed Budget must be approved by the Funding Lender, each Proposed Budget:
(i) shall be prepared on the basis of sound accounting practices consistently applied; (ii) shall reflect all amounts projected to be deposited in the Replacement Reserve Fund and the projected revenues and Expenses of the Project Facilities; (iii) shall reflect all projected Capital Expenditures which are reasonably expected to be made in connection with the Project Facilities during the Fiscal Year covered by such Proposed Budget; and
(iv) shall be in such form as is reasonabl y acceptable to the Funding Lender and containing such other information as reasonabl y may be requested by Funding Lender or the Servicer.

Section 6.25 Borrower’s Approval of Funding Loan Agreement. The Borrower understands that the Governmental Lender will, pursuant to the Funding Loan Agreement and as security for the payment of the principal of, Acceleration Premium, if any, and the interest on the Governmental Notes, assign and pledge to the Funding Lender, and create a secu rity interest in favor of the Funding Lender (or the Fiscal Agent for the benefit of the Funding Lender) in certain of its rights, title and interest in and to this Agreement (including all pa yments hereunder) reserving, however, the Reserved Rights; and the Borrower hereby agrees and consents to such assignm ent and pledge. The Borrower acknowledges that it has received a copy of the Funding Loan Agreement fo r its examination and review. By its execution of this Agreement, the Borrower acknowledges that it has approved, has agreed to and is bound by the applicable provisions of the Funding Loan Agreement. The Borrower agrees that the Funding Lender and the Fiscal Agent, as applicable, shall be entitled to enforce and to benefit from the terms and conditions of this Agreement that relate to either notwithstanding the fact that they are not a signatory hereto.

Section 6.26 Conditions Precedent; Payment of Certain F ees, Deposits and Expenses. On the date of execution and delivery hereof, (a) the Servicer, the Funding Lender and the Governmental Lender, as applicable, shall have received, in immediately available funds, the amount equal to the fees set forth in Section 2.2 hereof, and (b) the Fiscal Agent shall have received the deposits required to be made in the Accounts on such date pursuant to Article 8 hereof.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

35 Section 6.27 Loan Rebalancing. If, for any reason, the Funding Lender shall, in the reasonable exercise of the Funding Lender’s judgment, determine that the combined total of (i) the remaining capital contributions from Borrower’s partners; (ii) any other source of funds shown in the Development Budget attached hereto; and (iii) any other sums deposited by the Borrower with the Fi scal Agent are insufficient to achieve Stabilization of the Project Facilities by the Stabilization Date, plus all of the following sums:
(x) all remaining costs of the marketing, ownership, maintenance and leasing of the Project Facilities; and (y) all remaining interest and all other remaining sums which may accrue or be payable under the Funding Loan Documents, then the Funding Lender may require the Borrower to deposit with the Fiscal Agent for deposit into the Equity Account of the Project Fund, within ten (10) days after written request by the Funding Lender, the projected deficiency. Notwithstanding the foregoing, if, at any time, the Funding Loan determines, in the Funding Loan’s reasonable discretion, that it is unlikely that the Borrower will receive all or a portion of the sources of funds shown on the Development Budget (other than the Borrower Loan proceeds), the Funding Loan may exclude such amount from its determination of whether the Borrower Loan is “in balance” as provided above.

Section 6.28 No Amendments. The Borrower shall not amend, modify or otherwise change the Ground Lease or the Subordinate Debt Documents without the prior written consent of the Funding Lender.

Section 6.29 [Reserved].

Section 6.30 [Reserved].

Section 6.31 [Reserved].

Section 6.32 [Reserved].

Section 6.33 [Reserved].

Section 6.34 Special Servicing Costs. In accordance with industry standards, the Servicer, as servicer of the Borrower Loan, may charge the Borro wer additional servicing fees and costs for special servicing requests. The Borrower shall pay as and when due all such special servicing fees or costs.

Section 6.35 Non-discrimination. The Borrower shall not discriminate on the basis of race, creed, color, sex, age or national origin in the lease, use or occupancy of the Project Facilities or in connection with the employment or application for employment of persons for the operation or management for the Project Facilities.

Section 6.36 Drilling at Property. The Borrower shall not consent to any drilling and/or mining operations on the Project Facilities property without the prior written consent of the Funding Lender.

ARTICLE 7

DEFAULTS AND REMEDIES
Section 7.1 Defaults. Each of the following shall constitute an event of default hereunder (“Event of Default”):
(a) Failure by the Borrower to pay any amount required to be paid by the Borrower under this Agreement, the Borrower Notes or any of the other Funding Loan Documents when the same shall become due and payable;
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

36 (b) Failure by the Borrower to perform or comply with any of the terms or conditions contained in Section 6.1, 6.11 or 6.12 hereof;
(c) Other than as described in any other subsec tion of this Section 7.1, failure by the Borrower to perform or comply with any of the terms or conditions contained in this Agreement and any of the other Funding Loan Documents to which the Borrower is a party, and continuation of such failure for thirty (30) days after writte n notice from the Funding Lender or the Servicer to the Borrower, or such longer period to which the Funding Lender may agree in the case of a default not curable by the exercise of due diligence within such thirty (30) day period, if the Borrower, the General Partner or the Tax Credit Investor shall have commenced a cure of such default within such thirty (30) day period a nd shall be diligently pursuing such cure as quickly as reasonably possible;
(d) Any of the representations or warranties of the Borrower set forth in this Agreement, any of the other Funding Loan Documents or any other document furnished to the Governmental Lender, the Funding Lender, the Serv icer or the Fiscal Agent pursuant to the terms hereof proves to have been intentionally false or misleading in any material respect when made; (e) Any provision of this Agreement or any of the other Funding Loan Documents to which the Borrower, the Administrative General Partner, the Managing General Partner or any Guarantor is a party for any reason ceases to be valid and binding on the Borrower, the Administrative General Partner, the Managing General Partner or such Guarantor, is declared to be null and void, or is violative of any applicable Legal Requirement relating to a maximum amount of interest permitted to be contracted for, charged or received, or the validity or enforceability thereof is contested by the Borrower, the Admini strative General Partne r, the Managing General Partner or any Guarantor or any Governmental Authority, or the Borrower, the Administrative General Partner, the Managing General Partner or any Guarantor denies that it has any or further liability or obligation under this Agreement or a ny of the Funding Loan Documents to which the Borrower, the Administrative General Partner, th e Managing General Partner or any Guarantor is a party;
(f) The occurrence of an Event of Default as defined in the Funding Loan Agreement, the other Funding Loan Documents, the Subordinate Debt Documents (except as otherwise waived by the Subordinate Lenders, as applicable), the Grou nd Lease or an act or event (or failure to act or non-occurrence of an act) whic h, with the passage of time, the giving of notice or both, would constitute an Event of Default under the Fundin g Loan Agreement or the other Funding Loan Documents, the Ground Lease or the Subordinate Debt Documents (except as otherwise waived by the Subordinate Lenders, as applicable); or th e occurrence of a breach under the HAP Contract which causes, or, with the giving of notice, the passage of time, or both, would cause the PHA or HUD to terminate the payments thereunder;
(g) The Borrower, any Guarantor, the Administrative General Partner or the Managing General Partner (i) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian or the like of the Borrower, any Guaran tor, the Administrative General Partner or the Managing General Partner, as applicable, or of property of any such party or (ii) admits in writing the inability of the Borrower, any Guarantor, th e Administrative General Partner or the Managing General Partner to pay its debts generally as they become due, or (iii) makes a general assignment for the benefit of creditors, (iv) is adjudicated bankrupt or insolvent, (v) commences a voluntary case under the Bankruptcy Code or files a voluntary petition or answer seeking reorganization, an
arrangement with creditors or an order for relief or seeking to take advantage of any insolvency law or files an answer admitting the material alle gations of a petition filed against the Borrower, [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

37 any Guarantor, the Administrative General Part ner or the Managing General Partner in any bankruptcy, reorganization or insolvency proceeding, or action of the Borrower, any Guarantor, the Administrative General Partner or the Managing General Partner is taken for the purpose of effecting any of the foregoing, or (vi) has instituted against it, without the application, approval or consent of the Borrower, any Guarantor, the Administrative General Partner or the Managing General Partner, as applicable, a proceeding in any court of competent jurisdiction, under any Legal Requirements relating to bankruptcy, insolvency, re organization or relief of debtors, seeking in respect of the Borrower, any Guarantor, the Administrative General Partner or the Managing General Partner an order for relief or an adjudi cation in bankruptcy, reorganization, dissolution, winding up or liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or the like of the Borrower, any Guarantor, the Administrative General Partner or the Managing General Part ner or of all or any substantial part of the assets of such party or other like relief in respect thereof under any Legal Requirements relating to bankruptcy or insolvency law, and, if such proceeding is being contested by the Borrower, such Guarantor, the Administrative General Partner or the Managing General Partner, as applicable, in good faith, the same (A) re sults in the entry of an order for relief or any such adjudication or appointment or (B) rema ins undismissed and undischarged for a period of ninety (90) days;
(h) The Borrower fails to maintain in full force and effect any insurance required pursuant to this Agreement;
(i) The Project Facilities suffer a loss by fire or other casualty and such loss is not fully insured and any deficiency in the amount of insurance proceeds paid with respect to such loss is not posted with the Fiscal Agent within thirty (30) days of the determination of such deficiency; (j) The Project Facilities fail to (i) achieve Stabilization on or before the Stabilization Date (as may be extended), or (ii) obtain and main tain the exemption from ad valorem real estate taxation under the applicable laws of the State, subject to any appeal right of the Borrower; (k) Any litigation or administrative proceeding ensues, and is not dismissed within sixty (60) days, involving the Borrower, the Administrative General Partner, the Managing General Partner, any Guarantor or any instrument, contr act or document delivered by the Borrower to the Servicer, the Funding Lender or the Fiscal Agen t in compliance with this Agreement, and the adverse result of such litigation or proceedi ng would have, in the F unding Lender’s reasonable opinion, a materially adverse effect on the Borrower’s, the Administrative General Partner’s, the Managing General Partner’s or any Guarantor’s ability to pay its obligations and comply with the covenants under this Agreement or any of the other Funding Loan Documents; (l) Failure by the Borrower to cause a prepay ment of the Borrower Loan as required in accordance with (i) Section 7(b)(iii) of the Series 2029A Borrower Note or (ii) Section 7(b)(vii) of the Series 2029B Borrower Note;
(m) Any one or more judgments or orders are entered against the Borrower, any Guarantor, the Administrative General Partner or the Managing General Partner, and (1) continue unsatisfied and unstayed for thirty (30) days or (2) a judgment lien on any property of the Borrower, any Guarantor, the Administrative General Partner or the Managing General Partner is recorded in respect thereof and is not stayed pending appeal by a bond or other arrangement given or obtained by the Borrower, such Guarantor, the Administrative General Partner or the Managing General Partner on terms which do not violate any of the Borrower’s covenants under this Agreement; and [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

38 (n) Failure by the Borrower or the Guarantor (1) to make any payment or payments in respect of any Obligation or Indebtedness (unless a bona fide dispute exists as to whether such payment is due), when such payment or payments are due and payable (after the lapse of any applicable grace period), (2) to perform any other obligation or covenant under any such obligation or obligations or (3) to pay or perform any obligation or covenant under any Material Contract, any of which (x) results in the acceleration of such Obligation or Indebtedness or enables the holder or holders of such Obligation or Indebtedness or any person acting on behalf of such holder or holders to accelerate the maturity of such obligation or (y) would have, in the Funding Lender’s reasonable opinion, a materially adverse effect on either the Borrower’s or the Guarantor’s ability to pay its obligations and comply with the covenants under this Agreement or any of the other Funding Loan Documents.

Notwithstanding the foregoing, if any Event of Defa ult described in paragraphs (g), (k) or (m) of this Section 7.1 is caused solely by the action of a Guar antor, then so long as no other Default or Event of Default exists under the Funding Loan Documents, the Funding Lender shall not declare an Event of Default or pursue remedies hereunder for a period of an a dditional thirty (30) days, during which period the Borrower or the Tax Credit Investor shall have the opti on to cure such Event of Default to the satisfaction of the Funding Lender, or to provi de a replacement guarantor, which replacement guarantor shall be acceptable to the Funding Lender in its sole discretion. If any Event of Default is caused solely by the Managing General Partner, such remedy may be cu red by replacement of the Managing General Partner within sixty (60) days with another 501(c)(3) entity acceptable to Funding Lender in its sole but reasonable discretion.

Section 7.2 Remedies. If an Event of Default has occurred and is continuing uncured, the Funding Lender or the Fiscal Agent (acting solely at the written direction of the Funding Lender) on behalf of the Funding Lender, may:
(a) Declare the principal of the Governmental Notes then outstanding and the interest accrued thereon to be due and payable; and
(b) Declare the Borrower’s obligations he reunder, under the Borrower Notes and under the other Funding Loan Documents to be, whereupon the same shall become, immediately due and payable, provided, no such declaration shall be required, and, except as provided in the last paragraph of Section 7.1 hereof, acceleration sha ll be automatic, upon occurrence of an event set forth in Section 7.1(g) hereof; and
(c) [Reserved]; and
(d) [Reserved]; and
(e) (1) Enter upon or take possession of the Project Facilities and call upon or employ suppliers, agents, managers, maintenance personnel, security guards, architects, engineers and inspectors to complete, manage or operate the Proj ect Facilities or to protect the Project Facilities from injury; (2) pay out additional sums (which sums shall be immediately due and payable by the Borrower to the Funding Lender) and use any property of the Borrower associated with the Project Facilities, or any property of the Borrower in wh ich the Funding Lender has or obtains an interest for application to or as a reserve for payment of any or all of the following with respect to the protection, management, operation or maintenance of the Project Facilities or the protection of the Funding Lender’s interest therein, and in such connection deliver or disburse the same to such entities in such amounts and with such preferences and priorities as the Funding Lender in its sole discretion shall determine, either with or without vouchers or orders executed by the Borrower: (A) [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

39 all sums due from the Borrower to the Funding Le nder; (B) premiums and costs of title and any other insurance; (C) leasing fees and brokerage or sales commissions; (D) fees, costs and expenses of the Funding Lender and its counsel in connection with the enforcement and performance of this Agreement, the other Funding Loan Documents and the other documents contemplated hereby; (E) any taxes (including federal, state and local taxes) or other governmental charges; (F) any sums required to indemnify and hold the Funding Le nder harmless from any act or omission of the Funding Lender (except such as are grossly neg ligent or due to its w illful misconduct) under Section 2.5 hereof, the other Funding Loan Docu ments or any other document; (G) architectural and engineering costs or any sums due to contr actors, subcontractors, mechanics or materialmen for work or services actually furnished on or for the Project Facilities; (H) claims of any Governmental Authority for any required withholdi ng of taxes on wages payable or paid by the Borrower; and (I) other costs and expenses which are required to complete, manage or operate the Project Facilities or to protect the Project Faciliti es from injury or maintain the Funding Lender’s or the Fiscal Agent’s, as applicable, security pos ition before the rights of all others; (3) place additional encumbrances upon the Project Facilities; and (4) employ leasing and sales agents and negotiate and execute leases, sales contracts and fi nancing undertakings in connection with all or any part of the Project Facilities; and
(f) Subject to all Legal Requirements, require the Borrower to transfer all security deposits to the Fiscal Agent; and
(g) Exercise, or cause to be exercised, any and all such remedies as it may have under this Agreement, the other Funding Loan Documents or at law or in equity.

The Fiscal Agent shall not take any action upon th e occurrence of an Event of Default hereunder or under any other Funding Loan Documents to which it is a party unless such action is at the written direction of the Servicer or the Funding Lender. To the extent applicable, before taking any action required hereunder which may require the Fiscal Agent to incur costs, expend its own funds or expose it to risk, the Fiscal Agent may require security or indemnification satisfactory to it for the reimbursement of all costs, expenses or liabilities it incurs in connection with such action.

Section 7.3 No Waivers; Consents. No waiver of, or consent with respect to, any provision of this Agreement shall in any event be effective unless the same shall be in writing and signed by the Funding Lender (or by the Governmental Lender if the same relates to Reserved Rights), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.

Section 7.4 No Waiver; Remedies Cumulative. No failure on the part of the Governmental Lender, the Funding Lender, the Servicer or any Note owner to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; an d no single or partial exercise of any right hereunder shall preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any re medies available under any other document or at law or in equity.

Section 7.5 Set-Off. Upon the occurrence and during the continuation of an Event of Default hereunder (provided that the Funding Lender shall have no obligation to accept a cure of any Event of Default), the Funding Lender is hereby authorized at any time and from time to time without notice to the Borrower or the General Partner (any such notice being expressly waived by the Borrower and the General Partner) and, to the fullest extent permitted by applicab le Legal Requirements, to set off and to apply any and all balances, credits, deposits (general or speci al, time or demand, provisional or final), accounts or moneys at any time held (including any amounts in the Accounts except for the Rebate Fund and the Tax and Insurance Escrow Fund) and other indebtedness at any time owing by the G overnmental Lender to or [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

40 for the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement, the Funding Loan Documents or any other agreement or instrument delivered by the Borrower to the Governmental Le nder in connection therewith, whether or not the Governmental Lender shall have made any demand hereunder or thereunder and although such obligations may be contingent or unmatured. The rights of the Funding Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which the Funding Lender may have.

Section 7.6 Governmental Lender and Borrower to Give Notice of Default. The Governmental Lender and the Borrower severally covenant that they will, at the expense of the Borrower, promptly give to the Funding Lender, the Servicer, the Fiscal Agent and the Tax Credit Investor and to each other written notice of the occurrence of any Default or Event of Default under this Agreement, and any act, event or circumstance which, with the passage of time, or notice, or both, would constitute such a Default or Event of Default of which they shall have actual knowledge or written notice, but the Governmental Lender shall not be liable for failing to give such notice.

Section 7.7 Cure by Tax Credit Investor and/or Speci al Limited Partner. Notwithstanding anything to the contrary contained herein, the Governmental Lender hereby agrees that any timely cure of any default made or tendered by the Tax Credit Investor and/or Special Limited Partner shall be deemed to be a cure by the Borrower, and shall be accepted or re jected on the same basis as if made or tendered by the Borrower; provided, however, that neither the Tax Credit Investor nor the Special Limited Partner shall have any obligation or duty to take any action to cure any default or to cause any default to be cured.

Section 7.8 Default Rate; Acceleration Premium. In the event there shall have occurred an acceleration of the obligations of the Borrower hereunde r following an Event of Default on or before the Par Call Date, any tender of payment of an amount necessary to satisfy the indebtedness evidenced by this Agreement shall include the Acceleration Premium. In addition, in the event that principal or interest payable hereunder is not paid when due, there shall be payable on the amount not timely paid, interest at the Default Rate until the unpaid amount, together with interest thereon, shall have been paid in full.

Section 7.9 Reserved Rights; Regulatory Agreement Defaults. (a) Notwithstanding anything to the contrary contained herein, the Governmental Lender may enforce its Reserved Rights under the Funding Loan Do cuments and exercise the permitted remedies with respect thereto against the Borrower, subject to the provisions of subparagraph (c) below. (b) If there shall have occurred and be then continuing an event of default under the Land Use Restriction Agreement which would, in the reasona ble judgment of the Governmental Lender or the Funding Lender, jeopardize the exclusion from gross income of interest on the Governmental Notes (a “Regulatory Agreement Default”) and such Regulatory Agreement Default remains uncured or unwaived for a period of sixty (60) days after the Borrower, the Funding Lender and the Servicer receive written notice from the Funding Lender or the Governmental Lender stating that a Regulatory Agreement Default has occurred and specifying the nature of such default, then, if authorized by the Funding Loan Documents, the Funding Lender or the Governmental Lender may, without the consent of the Funding Lender, exercise the remedy of pursuing specific performance of the F unding Loan Documents on account of such default, unless:
(i) The Governmental Lender and the Funding Lender, prior to the end of such sixty (60) day period, are provided with an Approving Opinion of Tax Counsel to the effect that the failure to cure such default will not have an adverse effect on the exclusion from gross income for [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

41 federal income tax purposes of interest on the Governmental Notes (which opinion may be requested and obtained by the Servicer or the Funding Lender); (ii) The Funding Lender or the Borrower ins titutes action to cure such Regulatory Agreement Default within such sixty (60) day period and diligently pursues such action thereafter until such Regulatory Agreement Default is cured; or
(iii) If such Regulatory Agreement Default is not reasonably curable by the Funding Lender without the Funding Lender’s first securi ng possession of the Project Facilities and/or operational control of the Borrower, and the Funding Lender (subject to extension during any stay on account of the bankruptcy of the Borrower) (x) subject to the terms of the Funding Loan Agreement, institutes, within such sixty (60) day period, proceedings or other action for the purposes of obtaining such possession or control pur suant to the Funding Loan Documents; (y) pursues diligently such proceedings until such possession or control is obtained; and (z) diligently pursues action to cure such default after the F unding Lender or other designee of the Funding Lender obtains possession or control of the Project Facilities, until such default is cured; provided, however, that any extension, pursuant to paragr aph (ii) above, of the period within which a Regulatory Agreement Default must be cured shall only be effective if and to the extent that, in the Approving Opinion of Tax Counsel provided to the Funding Lender, such extension will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Governmental Notes; and provided further, that the Funding Lender, following any such Regulatory Agreement Default, may reduce the 60- day period provided above to such shorter period of time as is specified in such notice (but in no event less than fifteen (15) Business Days), but only if the Funding Lender shall have been provided with an Approving Opinion of Tax Counsel to the effect that such reduction of such peri od is necessary to preserve the exclusion from gross income for federal income tax purposes of interest on the Governmental Notes. (c) In the event of a default in respect of Reserved Rights or a Regulatory Agreement Default which remains uncured after written notice thereof to the Borrower, the Funding Lender and the Servicer, nothing in this Section 7.9 shall restrict or in any way limit the right of the Governmental Lender to take any action for specific performance available under the Land Use Restriction Agreement or at law or in equity in order to enforce the terms of the Land Use Restriction Agreement or to enforce Reserved Rights hereunder, so long as the Governmental Lender does not take any action (i) to declare the outstanding balance of the Governmental Notes or the Borrower Loan to be due on account of such default, (ii) to have a receiver appointed in respect of the Project Facilities, (iii) to foreclose any liens upon or security interests or to enforce any other similar remedy against any of the property described in the Mortgage, or (iv) to enforce any other similar remedy which would cause such liens or security interests to be discharged or materially impaired thereby.
(d) Notwithstanding the limitations set forth in subsection (c) above, the Governmental Lender may seek specific performance of, and enforce, the cove nants in Sections 2, 3, 4 and 5 of the Regulatory Agreement, the Tax Certificate and the covenants of the Borrower in Section 6.10 of this Agreement, and seek injunctive relief against acts that may be in viol ation of any of the foregoi ng covenants, and enforce the Borrower’s obligation under Section 4.5(c) of the Funding Loan Agreement to pay amounts for credit to the Rebate Fund.

ARTICLE 8

DEPOSITS
Section 8.1 Deposits to and Disbursements from the Replacement Reserve Fund. Pursuant to the Replacement Reserve Agreement, the Borrower shall pay or cause to be paid to the Fiscal Agent, for [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

42 deposit into the Replacement Reserve Fund established by the Funding Loan Agreement, the amounts described in the Replacement Reserve Agreement. The sums contained in the Replacement Reserve Fund from time to time, shall be maintained, disbursed, and applied as provided in the Replacement Reserve Agreement and pursuant to Section 4.5(d) of the Funding Loan Agreement.

Section 8.2 Deposits to Tax and Insurance Escrow Fund.
(a) As a condition of Stabilization, the Borrower shall pay, or cause to be paid, to the Fiscal Agent, to be deposited in the Tax and Insurance Escrow Fund, an amount which, when added to an amount equal to the sum of:
(i) the product of the Impositions component of the Monthly Tax and Insurance Amount for the Project Facilities and the number of months from and including the Stabilization Date, until and including the month in which occurs the date that the Impositions on the Project Facilities are due and payable before penalty; and
(ii) the product of the insurance component of the Monthly Tax and Insurance Amount and the number of months from and including the Stabilization Date, until and including the month in which occurs the date that the annual insu rance premiums for the insurance on the Project Facilities required hereunder are due and payable will be sufficient to pay in full the insurance premiums for the Project Facilities when the same become due and payable before penalty. (b) Thereafter, on the Business Day prior to the first Business Day of each month commencing the month following the Stabilization Date, and each month thereafter, the Borrower shall pay, or cause to be paid, to the Fiscal Agent an amount equal to th e Monthly Tax and Insurance Amount for the Project Facilities to be deposited in the Tax and Insurance Escrow Fund.

Section 8.3 Deposits to Prepayment Fund.
(a) On or before the first Business Day prior to the first day of each month, commencing on the First Principal Payment Date, until the date on which the Series 2029A Governmental Note is no longer Outstanding, the Borrower shall pay to the Fiscal Agent the monthly principal amount shown in the Debt Service Schedule attached hereto as Schedule 3 for de posit into the Prepayment Fund pursuant to Section

4.5(a) of the Funding Loan Agreement.
(b) Notwithstanding the foregoing, in the event that the Stabilization Date is extended in accordance with the provisions of the Funding Loan Agreement, the Se rvicer shall provide the Borrower and the Fiscal Agent with a revised Debt Service Schedule, to the extent necessary, and the required principal payments into the Prepayment Fund as de scribed in subsection (a) above shall commence in accordance with such revised Debt Service Schedule.
(c) Following any permitted partial prepayment of the Series 2029A Borrower Note (other than pursuant to Section 7(c) of the Series 2029A Borrower Note), the Funding Lender shall adjust the monthly amount due pursuant to this provision to account for such partial prepayment of the Series 2029A Borrower Note and shall provide the Borrower and the Fiscal Agent with a revised Debt Service Schedule.

The Borrower shall also pay to the Fiscal Agent for deposit in the Prepayment Fund all amounts required to prepay the Series 2029A Borrower Note pursuant to Section 7(b)(vi) of the Series 2029A Borrower Note on or before the Loan Payment Date specified in th e notice of the Funding Lender as provided in Section 7(b)(vi) of the Series 2029A Borrower Note. The Borro wer shall also pay to the Fiscal Agent for deposit in the Prepayment Fund all other amounts required to prepay the Borrower Notes pursuant to Section 7 of each Borrower Note, as provided therein.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

43 Section 8.4 Deposits to Operating Reserve Fund. On or prior to the Stabilization Date, the Borrower shall pay or cause to be paid to the Fiscal Agent, to be deposited in the Operating Reserve Fund, a sum equal to the Operating Reserve Fund Requirement. Following any disbursement, payment or transfer of moneys from the Operating Reserve Fund, the Bo rrower shall replenish the Operating Reserve Fund monthly, from and to the extent of revenue from th e operation of the Project Facilities available after payment of Expenses, capital expenditures and am ounts then due and owing under the Funding Loan Documents, and prior to the payment of any distributions to the Borrower’s partners, until such time as the balance on deposit in the Operating Reserve Fund e quals the Operating Reserve Fund Requirement.

Amounts on deposit in the Operating Reserve Fund shall be applied as set forth in Section 4.5(e) of the Funding Loan Agreement and in accordance with Section [___] of the Partnership Agreement.Deposits to Project Revenue Account. At all times prior to the achievement of Stabilization, the Borrower shall pay or cause to be paid to the Fiscal Agent, for deposit into the Project Revenue Account of the Project Fund, all amounts received in connection with operating the Project Facilities (net of Expenses), which funds will be applied in accordance with Section 4.4(c) of the Funding Loan Agreement.

Section 8.6 Investment. Funds in the Accounts shall be invested in Permitted Investments by the Fiscal Agent upon the written direction of the Borro wer with the prior written consent of the Funding Lender, as set forth in Section 4.7 of the Funding Loan Agreement. Earnings on the Accounts hereunder shall be held or disbursed as set forth in Article IV of the Funding Loan Agreement. The Fiscal Agent shall have the right to invest or withdraw any deposited funds or to direct the liquidation of any investments held in order to pay the amounts required under this Agreement and the other Funding Loan Documents. The Fiscal Agent shall not be liable for any loss sustained as a result of any liquidation of any collateral prior to its maturity. Any income or gain realized on such in vestments shall be credited to and become part of the respective Account and reinvested and applied as provided in the Funding Loan Agreement. Provided that an Event of Default does not exist and is continui ng, the Borrower from time to time may request the Funding Lender to consent to the disbursement to or upon the order of the Borrower of the investment income previously credited to the Accounts, which consent by the Funding Lender shall not be unreasonably withheld or delayed.

Section 8.7 Security Interest in Accounts. The Borrower hereby assigns and pledges to the Governmental Lender, and grants the Governmental Lender a security interest in, as additional collateral security for the Borrower’s oblig ations to the Governmental Lender hereunder (and the Borrower acknowledges and agrees that the Governmental Lender sh all have a continuing security interest in) all of the Borrower’s right, title and interest, if any, in al l Accounts, all cash, cash equivalents, instruments, investments and other securities at any time held in th e Accounts, all proceeds of the foregoing, and all of the Borrower’s rights associated with such Accounts, if any. The Governmental Lender hereby directs the Fiscal Agent to hold all moneys in the Accounts from time to time as agent and bailee of the Governmental Lender.

Section 8.8 Reports. The Fiscal Agent shall provide to the Borrower detailed monthly statements on or before the fifth (5 th) day of the month following the month to which such report relates showing receipts, disbursements, bala nces and investments of each Account . Within ten (10) days of a written request of the Borrower to such effect, the Fiscal Agent shall deliver to the Borrower an accounting of receipts, disbursements and balances in one or more of the Accounts as necessary and appropriate to assist the Borrower in complying with its covenants to calculate and pay any rebate amount or yield reduction payments due and owing to the United States of America with respect to the Governmental Notes.

Such reports and accountings shall be provided by the Fiscal Agent’s portfolio system.

Section 8.9 No Liability of Fiscal Agent. In performing any of its duties hereunder, the Fiscal Agent shall not incur any liability to anyone for any damages, losses or expenses, except for its gross negligence or willful misconduct, as finally adjudicated on a non-appealable basis by a court of competent [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

44 jurisdiction; and the Fiscal Agent shall not incur any liability with respect to any action taken or omitted in good faith in the performance of its duties and responsibilities under this Agreement.

ARTICLE 9
[RESERVED]
ARTICLE 10

MISCELLANEOUS
Section 10.1 Notices. All notices, approvals, consents, requests, directions, instructions and other communications provided for hereunder shall be in writing and sent as provided in Section 9.4 of the Funding Loan Agreement.

Section 10.2 Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns, including, without limitation, the Fiscal Agent (as assignee of the Governmental Lender). The Servicer, the Funding Lender, and the Noteowners are express third party beneficiaries of this Agreement and the rights of the Fiscal Agent hereunder, with full rights of enforcement thereof. The Borrower may not assign its interests in or its rights, duties or obligations under this Agreement without the prior written consent of the Funding Lender. The Borrower and the Governme ntal Lender intend that no person other than the parties hereto, the Funding Lender, the Servicer and the Noteowners from time to time and their respective successors and assigns as permitted here under, shall have any claim or interest under this Agreement or right of action hereon or hereunder.

Section 10.3 Survival of Covenants. All covenants made by the Borrower herein and in any document delivered pursuant hereto shall survive the execution and delivery of the Borrower Notes and the Governmental Notes, the resignation or removal of th e Fiscal Agent, the delivery of this Agreement and the payment of any amounts under the Funding Loan Documents.

Section 10.4 Counterparts; Electronic Signature. The execution hereof by each party hereto shall constitute a contract between them for the uses and purposes herein set forth, and this Agreement may be executed in any number of counterparts, with each executed counterpart constituting an original and all counterparts together constituting one agreement. To the fullest extent permitted by applicable law, facsimile or electronically transmitted signatures shall be treated as original signatures for all purposes hereunder.

Section 10.5 Costs, Expenses and Taxes. The Borrowe r agrees to pay on the Conversion Date and thereafter within thirty (30) days after dema nd, all reasonable fees, costs and expenses of the Governmental Lender, the Fiscal Agent (and its coun sel), the Servicer (and its counsel) and the Funding Lender in connection with the preparation, execution, delivery and administration of this Agreement, the other Funding Loan Documents and any other documents that may be delivered in connection with this Agreement or the other Funding Loan Documents or a ny amendments or supplements thereto, including, without limitation, the fees and expenses of the Engineering Consultant, the cost of an annual appraisal (but only upon the occurrence and during the continuation of an Event of Default) of the Project Facilities by an appraiser selected by the Funding Lender, and the reasonable fees and expenses of counsel for the Funding Lender and the Servicer with respect thereto and w ith respect to advising the Funding Lender and the Servicer as to their respective rights and responsibili ties under this Agreement, the other Funding Loan Documents and such other documents, and all costs a nd expenses, if any, (inc luding, without limitation, reasonable counsel fees and expenses of the Servicer and the Funding Lender) in connection with the enforcement of this Agreement, the other Funding Loan Documents and such other documents. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

45 Section 10.6 Severability; Interest Limitation. If any provision hereof is found by a court of competent jurisdiction to be prohibited or unenforceable in any jurisdiction, it shall be ineffective as to such jurisdiction only to the extent of such prohib ition or unenforceability, and such prohibition or unenforceability shall not invalidate the balance of such provision as to such jurisdiction to the extent it is not prohibited or unenforceable, nor invalidate such provision in any other jurisdiction, nor invalidate the other provisions hereof, all of which shall be liberally construed in favor of the Governmental Lender in order to effect the provisions of this Agreement. Notwithstanding anything to the contrary herein contained, the total liability of the Borrower for payment of in terest pursuant hereto shall not exceed the maximum amount, if any, of such interest permitted by applicab le Legal Requirements to be contracted for, charged or received, and if any payments by the Borrower to th e Fiscal Agent include inter est in excess of such a maximum amount, the Fiscal Agent shall apply such excess to the reduction of the unpaid principal amount due pursuant hereto, or if none is due, such excess sh all be refunded to the Borrower; provided that, to the extent permitted by applicable Legal Requirements, in the event the inter est is not collected, is applied to principal or is refunded pursuant to this sentence and interest thereafter payable pursuant hereto shall be less than such maximum amount, then such interest thereafter so payabl e shall be increased up to such maximum amount to the extent necessary to recover the amount of interest, if any, theretofore uncollected, applied to principal or refunded pursuant to this sentence. Any such application or refund shall not cure or waive any Event of Default. In determining whethe r or not any interest payable under this Agreement exceeds the highest rate permitted by applicable Legal Requirements, any non-principal payment (except payments specifically stated in this Agreement to be “interest”) shall be deemed, to the extent permitted by applicable Legal Requirements, to be an expense, fee, premium or penalty rather than interest.

Section 10.7 Conflicts. Insofar as possible the provisi ons of this Agreement shall be deemed complementary to the terms of the other Funding Loan Documents, but in the event of conflict the terms hereof shall control to the extent such are enforceable under applicable Legal Requirements.

Section 10.8 Complete Agreement. Taken together with the other Funding Loan Documents and the other instruments and documents delivered in compliance herewith, this Agreement is a complete memorandum of the agreement of th e Borrower, the General Partner, the Guarantor, the Servicer, the Funding Lender, the Fiscal Agent, the Governmental Lender and the Noteowners from time to time of the Governmental Notes, with respect to the subject matter hereof.

Section 10.9 Consent to Jurisdiction; Venue; Waiver of Jury Trial. The parties hereby irrevocably (i) agree that any suit, action or other legal proceeding arising out of or relating to this Agreement or the other Funding Loan Documents may be brought in a court located within the County of Santa Clara, California and consents to the jurisdiction of such court in any such suit, action or proceeding; (ii) agree that any suit, action or other legal proceeding relating to the Funding Loan Documents shall be brought solely in a court located within the County of Santa Clara, California and (iii) waive any objection which it may have to the laying of venue of any such suit, action or proceeding in any such court and any claim that any such suit, action or proceeding has b een brought in an inconvenient forum. The parties hereby irrevocably consent to the service of any and a ll process in any such suit, action or proceeding by mailing of copies of such process to such party at its address provided under or pursuant to Section 10.1 hereof. The parties agree that a final judgment in an y such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Legal Requirements. All mailings under this Section shall be by certified or registered mail, return receipt requested. Nothing in this Section shall affect the right of the Servicer and the Funding Lender to serve legal process in any other manner permitte d by applicable Legal Requirements. OTHER THAN THE

GOVERNMENTAL LENDER, THE OTHER PARTIES HERETO HEREBY WAIVE THE RIGHT

TO TRIAL BY JURY IN ANY ACTION ARISING UNDER THIS AGREEMENT, ANY OF THE OTHER FUNDING LOAN DOCUMENTS OR OTHERWISE IN CONNECTION HEREWITH.

THIS WAIVER OF RIGHT TO TRIAL BY JU RY IS SEPARATELY GIVEN BY EACH PARTY [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

46 OTHER THAN THE GOVERNMENTAL LENDER, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.

Section 10.10 Governing Law. This Agreement sha ll be governed by, and construed in accordance with, the Legal Requirements of the State without reference to its principles of conflicts of law.

Section 10.11 Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 10.12 Sale of Governmental Notes and Secondary Market Transaction. (a) At the Funding Lender’s request (to the extent not already required to be provided by the Borrower under this Agreement), the Borrower shall use reasonable efforts to satisfy the market standards to which the Funding Lender customarily adheres or which may be reasonably required in the marketplace or by the Funding Lender in connection with obtaining a rating or one or more sales or assignments of all or a portion of the Governmental Notes or participati ons therein or securitizations of single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or a portion of the Governmental Notes (each such sale, assignment and/or securitization, a “Secondary Market Transaction”); provided that neither the Borrower nor the Governmental Lender shall incur any third party or other out- of-pocket costs and expenses in connection with a S econdary Market Transaction, including the costs associated with the delivery of any Provided Information or any opinion required in connection therewith, and all such costs including, without limitation, any costs associated with receiving a rating on the Governmental Notes, shall be paid by the Funding Lender, and shall not materially modify Borrower’s rights or obligations. Without limiting the generality of the foregoing, the Borrower shall, so long as the Borrower Loan is still outstanding:
(i) (1) provide reasonable financial and other information with respect to the Governmental Notes, and with respect to the Project Facilities, the Borrower, the General Partner, the Manager or the Contractor, (2) provide financial statements, audited, if available, relating to the Project Facilities with customary disclaimers for any forward looking statements or lack of audit, and (3) at the expense of the Funding Lender, pe rform or permit or cause to be performed or permitted such site inspection, appraisals, surveys, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports, termite and other insect infestation reports and other due diligence investigations of the Project Facilities, the Borrower, the General Partner, the Guarantor, the Manager, the Contractor and other third parties in connection with the Governmental Notes, as may be reas onably requested from time to time by the Funding Lender or the Rating Agencies or as may be necessary or appropriate in connection with a Secondary Market Transaction or Exchange Act re quirements (the items provided to the Funding Lender pursuant to this paragraph (i) and the other information provided pursuant to this Agreement and the other Funding Loan Documents used in connection with a Secondary Market Transaction being called the “Provided Information”), together, if customary, with appropriate verification of and/or consents to the Provided Information throug h letters of auditors or opinions of counsel of independent attorneys acceptable to the Funding Lender and the Rating Agencies; (ii) make such representations and warranties as of the closing date of any Secondary Market Transaction with respect to the Project Facilities, the Borrower, the General Partner, the Guarantor, the Manager, the Contractor or ot her third parties and the Funding Loan Documents reasonably acceptable to the Funding Lender, c onsistent with the facts covered by such representations and warranties as they exist on the date thereof, including a “bringdown” of the representations and warranties contained in the Funding Loan Documents as of the date thereof and a representation that no default or event of default has occurred and is continuing; and [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

47 (iii) execute such amendments to the Funding Loan Documents to accommodate such Secondary Market Transaction so long as such am endment does not affect the material economic terms of the Funding Loan Documents and is not otherwise adverse to such party in its reasonable discretion.
(b) The Borrower understands that certain of the Provided Information and the required records may be included in disclosure documents in connection with a Secondary Market Transaction, including a prospectus or private placement memorandum (each, a “Secondary Market Disclosure Document”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies and service providers or other parties relating to the Secondary Market Transaction. In the event that the Secondary Market Disclosure Document is required to be revised, the Borrower shall cooperate, subject to Section 10.12(c) hereof, with the Fundi ng Lender in updating the Provided Information or required records for inclusion or summary in the Secondary Market Disclosure Document or for other use reasonably required in connection with a Seconda ry Market Transaction by providing all current information pertaining to the Borrower and the Project Facilities necessary to keep the Secondary Market Disclosure Document accurate and complete in all ma terial respects with respect to such matters. The Borrower hereby consents to any and all such disclosures of such information.

The Borrower and the Funding Lender agree a nd acknowledge that the Governmental Lender undertakes no obligation hereunder or in the Funding Loan Agreement to participate in the preparation of, or to approve, any Secondary Market Disclosure Document and the parties hereto agree that any Secondary Market Disclosure Document will, unless approved in advance by the Governmental Lender in writing, disclose no more regarding the Governmental Lender th an its name and status as a municipal corporation and charter city of the State of Ca lifornia and that the Governmental Notes are a limited obligation of the Governmental Lender secured solely by the payments made by the Borrower under the Borrower Notes and the Borrower Loan Agreement.
(c) In connection with a Secondary Market Di sclosure Document, the Borrower, General Partner or Guarantor shall provide, or in the case of a Borrower-engaged third party such as the Manager, cause it to provide, information reasonably requested by the Funding Lender pertaining to the Borrower, General Partner or Guarantor, the Project Facilities or such third party (and porti ons of any other sections reasonably requested by the Servicer or the Funding Lender pertaining to the Borrower, General Partner or Guarantor, the Project Facilities or the third party). The Borrower shall, if requested by the Funding Lender, certify in writing that the Borrower has carefully examined those portions of such Secondary Market Disclosure Document, pertaining to the Borrower, Gene ral Partner or Guarantor, the Project Facilities or the third party, and such portions (and portions of any other sections reasonably requested and pertaining to the Borrower, the Project Facilities or the third party) do not contain any untrue statement of a material fact or omit to state a material fact necessary in orde r to make the statements made, in the light of the circumstances under which they were made, not misl eading; provided that the Borrower shall not be required to make any representations or warranti es regarding any Provided Information obtained from a third party except with respect to information it provide d to such third parties; provided further that the Borrower will be required to cooperate in good faith to cause such third parties to provide similar certification with respect to any information not so certified by the Borrower. Furthermore, the Borrower hereby indemnifies the Funding Lender, the Servicer, the Governmental Lender and the underwriter group for any securities, and their affiliates, officers, directors, partners, members, agents, attorneys and servicers (collectively, the “Underwriter Group”) for any liabilities to which any such parties may become subject to the extent such liabilities arise out of or are based upon the use of the Provided Information in a Secondary Market Disclosure Document.
(d) In connection with filings under the Exchange Act or the Securities Act, the Borrower shall (i) defend and indemnify the Servicer, the Funding Lender, the Fiscal Agent, the Government al Lender, its
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

48 members, and the Underwriter Group for any liabilities to which the Funding Lender, the Servicer, the Fiscal Agent, the Governmental Lender or the Unde rwriter Group may become subject insofar as such liabilities arise out of or are based upon the omission or alleged omission by the Borrower to state in the Provided Information of a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in the lig ht of the circumstances under which they were made not misleading, and (ii) reimburse the Servicer, the Funding Lender, the Fiscal Agent, the Underwriter Group and the other indemnified par ties listed above for any legal or other expenses reasonably incurred by the Servicer, the Funding Lender, the Fiscal Agent or the Underwriter Group in connection with defending or investigating the liabilities; provided that the Borrower shall not provide any indemnification regarding any Provided Information obtained from unrelated third parties except with respect to information it provided to such parties, but shall require such third parties to provide such indemnification with respect to information they certify.
(e) Promptly after receipt by an indemnified part y under this Section 10.12 of notice of the commencement of any action for which a claim for inde mnification is to be made against the Borrower, such indemnified party shall notify the Borrower in writing of such commencement, but the omission to so notify the Borrower will not relieve the Borrower from any liability that it may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the Borrower. In the event that any action is brought against any indemnified party, and it notifies the Borrower of the commencement thereof, the Borrower will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written no tice delivered to the indemnified party promptly after receiving the aforesaid notice of commencement, to a ssume the defense thereof with counsel selected by the Borrower and reasonably satisfactory to such indemnified party in its sole discretion. After notice from the Borrower to such indemnified party under this Section 10.12 and provided that the Borrower duly provides the defense and indemnity herein described, including payment of all required fees, expenses and liabilities, the Borrower shall not be responsible for any legal or other expen ses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation.

No indemnified party shall settle or compromise any claim for which the Borrower may be liable hereunder without the prior Written Consent of the Borrower.
(f) In order to provide for just and equitabl e contribution in circumstances in which the indemnity agreement provided for in this Section 10. 12 is for any reason held to be unenforceable by an indemnified party in respect of any liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under this Section 10.12, th e Borrower shall contribute to the amount paid or payable by the indemnified party as a result of such liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contributio n from any Person not guilty of such fraudulent misrepresentation. In determining the amount of cont ribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified parties and the Borrower’s relative knowledge and access to information concerning the matter with r espect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or om ission; and (iii) any other equitable considerations appropriate in the circumstances. The parties hereto hereby agree that it may not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.

Section 10.13 Nonrecourse.
(a) Notwithstanding anything to the contrary contained in this Agreement (other than Sections

10.13(b) through (e) hereof) or the other Funding Loan Documents, the Governmental Lender agrees that, in connection with the exercise of any rights or remedies available to the Governmental Lender under this Agreement or any of the other Funding Loan Documents (other than the Environmental Indemnity and the other guaranty agreements of the Guarantors), th e Governmental Lender shall look solely to the [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

49 enforcement of the lien and security interests create d by this Agreement and the other Funding Loan Documents and to the collateral and other security held by the Funding Lender or the Fiscal Agent and all assets of the Borrower.
(b) Notwithstanding the preceding subsection, the Borrower and the Guarantor shall have full recourse and personal liability for, and be subject to, judgments and deficiency decrees arising from and to the extent of any loss or damage suffered or incurred by the Governmental Lender, the Funding Lender, the Servicer, the Fiscal Agent or the Noteowners as a result of the occurrence of any of the following events:
(i) the Borrower fails to pay to the Fiscal Agent upon demand after an Event of Default all Rents to which the Fiscal Agent is entitled under Section 2 of the Mortgage and the amount of all security deposits collected by the Borrower from tenants then in residence. However, the Borrower and the Guarantor will not be personally liable for any failure described in this Section 10.13(b)(i) if the Borrower is unable to pay to the Fiscal Agent all Rents and security deposits as required by the Mortgage because of a valid order issued in a bankruptcy, receivership, or similar judicial proceeding;
(ii) the Borrower fails to apply all insurance proceeds or casualty or condemnation proceeds as required by the Funding Loan Documents. However, the Borrower and the Guarantor will not be personally liable for any failure described in this Section 10.13(b)(ii) if the Borrower is unable to apply insurance or casualty or condemnation proceeds as required by the Funding Loan Documents because of a valid order issued in a bankruptcy, receivership, or similar judicial proceeding;
(iii) if an Event of Default has occurred and is continuing, the Borrower fails to deliver all books and records relating to the Project Fac ilities or its operation in accordance with the provisions of Section 6.8 or 6.9 of this Agreement;
(iv) the Borrower engages in any willful act of material waste of the Project Facilities; (v) the Borrower or the Administrative Genera l Partner fails to comply with any provision of Section 6.11(b) hereof;
(vi) the occurrence of any of the following transfers (unless a Permitted Transfer):
(A) any Person that is not an Affiliate creates a mechanic’s lien or other involuntary lien or encumbrance against the Project Facilities and the Borrower has not complied with the provisions of this Agreement;
(B) a transfer of property by devise, descent or operation of law occurs upon the death of a natural person in violation of the requirements set forth in the Funding Loan Documents;
(C) the Borrower grants an easement that does not meet the requirements set forth in the Funding Loan Documents; or
(D) the Borrower executes a Lease that do es not meet the requirements set forth in the Funding Loan Documents;
(vii) any act of fraud or willful misconduct or any criminal act of the Borrower, the Administrative General Partner, the Managing General Partner or the Guarantor; [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

50 (viii) the Borrower’s misappropriation of funds or other Collateral; (ix) the Borrower fails to pay the fees and expe nses pursuant to Section 2.2 hereof or the compensation of the Fiscal Agent pursuant to Section 7.2 of the Funding Loan Agreement; (x) the Borrower fails to cause the Project Facilities to be in compliance with any applicable Governmental Authority accessibility findings or requirements; or (xi) any litigation or other legal proceeding rela ted to the Obligations filed by any of the Borrower, Guarantor, or any of their Affiliates, or any other action of any such Person that delays, opposes, impedes, hinders, enjoins or otherw ise interferes with or frustrates the efforts of Funding Lender to exercise any rights and remedi es available to Funding Lender provided herein or in the other Funding Loan Documents.
(c) The Borrower and the Guarantor shall have fu ll recourse and personal liability for all of the Indebtedness (and the limitation on liability in the first sentence of Section 10.13(a) hereof shall be null and void) as a result of the occurrence of any of the following:
(i) a violation of Section 6.11(a) or 6.13(c) hereof;
(ii) the Borrower or Guarantor fails to cure for thirty (30) days after the giving to it by the Funding Lender of written notice to comply with Section 6.12(b) hereof; (iii) the Borrower’s taking any action which adversely affects the exclusion from gross income of interest on the Governmental Notes for federal income tax purposes, or the Borrower’s omitting or failing to take any ac tion required to maintain the exclusion from gross income of interest on the Governmental Notes for federal income tax purposes; (iv) the Borrower or the Administrative Genera l Partner fails to comply with any provision of Section 6.11(b) hereof and a court of competent jurisdiction holds or determines that such failure or combination of failures is the b asis, in whole or in part, for the substantive consolidation of the assets and liabilities of the Borrower or the Administrative General Partner with the assets and liabilities of a debtor pursuant to Title 11 of the Bankruptcy Code; (v) a transfer that is an Event of Default under Section 7.1 hereof occurs (other than a transfer described in Section 10.13(b)(vi)(B) above, for which Borrower will have personal liability for any loss or damage); provided, however, that Borrower will not have any personal liability for a transfer consisting solely of the involuntary removal or involuntary withdrawal of a General Partner;
(vi) there was fraud or written material misrepresentation by the Borrower or any officer, director, partner, member or employee of the Borrower in connection with the application for or creation of the Indebtedness or there is fraud in connection with any request by the Borrower for any action or consent by the Governmental Le nder, the Funding Lender, the Servicer or the Noteowners;
(vii) the Borrower, the Administrative General Partner or the Managing General Partner voluntarily files for bankruptcy protection under the Bankruptcy Code; [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

51 (viii) the Borrower, the Administrative General Partner or the Managing General Partner voluntarily becomes subject to any reorganization, receivership, insolvency proceeding, or other similar proceeding pursuant to any other federal or state law affecting debtor and creditor rights; (ix) the Project Facilities or any part of th e Project Facilities becomes an asset in a voluntary bankruptcy or becomes subject to any voluntary reorganization, receivership, insolvency proceeding, or other similar voluntary proceeding pursuant to any other federal or state law affecting debtor and creditor rights;
(x) an order of relief is entered against the Borrower, the Administrative General Partner or the Managing General Partner pursuant to the Bankruptcy Code or other federal or state law affecting debtor and creditor rights in any involuntary bankruptcy proceeding initiated or joined in by an Affiliate;
(xi) an involuntary bankruptcy or other involuntary insolvency proceeding is commenced against the Borrower, the Administrative General Pa rtner or the Managing General Partner (by a party other than the Funding Lender or the Noteowner) but only if the Borrower, the Administrative General Partner or the Managing General Partner, as applicable, has failed to use commercially reasonable efforts to dismiss such pr oceeding or has consented to such proceeding. “Commercially reasonable efforts” will not require a ny direct or indirect interest Noteowners in the Borrower, the Administrative General Partner or the Managing General Partner to contribute or cause the contribution of additional capital to the Borrower, the Administrative General Partner or the Managing General Partner; or
(xii) the Borrower’s or the Guarantor’s actions intentionally delay or hinder the Funding Lender or the Fiscal Agent, as applicable, in the appointment of a receiver or foreclosure following an Event of Default (excepting only the good faith assertion of applicable legal defenses). (d) The Borrower and the Guarantor shall have fu ll recourse and personal liability as a result of all of the following:
(i) the performance of and compliance with all of the Borrower’s obligations under Sections 5.12 and 6.14 of this Agreement (rela ting to environmental matters) or the Borrower’s failure to comply with the provisions of the Environmental Indemnity; (ii) [reserved];
(iii) any costs and expenses incurred by the G overnmental Lender, the Fiscal Agent, the Servicer and the Funding Lender in connection with the collection of any amount for which the Borrower is personally liable under this Section 10.13, including attorneys’ fees and costs and the costs of conducting any independent audit of the Borrower’s books and records to determine the amount for which the Borrower has personal liability; and (iv) the Borrower’s indemnity obligations pursuant to Section 2.5 and 10.12. (e) Further, nothing contained in this Section shall be deemed to limit, vary, modify or amend any obligation owed under any guara nty, master lease or indemnification agreement, including the Environmental Indemnity and the other guaranty agreements of the Guarantor, furnished in connection with financing of the construction, improvement and equipping of the Project Facilities, recourse under which is not, by its terms, expressly limited in accordance with this Section 10.13. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

52 (f) Notwithstanding anything to the contrary in th is Agreement or any of the other Funding Loan Documents, the Governmental Lender, the Fiscal Agent, the Fundi ng Lender, the Servicer and the Noteowners shall not be deemed to have waived an y right such Persons may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Borrower’s and the Guarantor’s Indebtedness under the Funding Loan Documents or to require that all collateral shall continue to secure all of the Indebtedness under the Funding Loan Documents.

Section 10.14 Publicity. The Borrower hereby authorizes the Servicer or the Funding Lender and their respective Affiliates, without further notice or consent, to use the Borrower’s and its Affiliates’ name(s), logo(s) and photographs related to the Project Facilities in its advertising, marketing and communications materials on a national and/or international basis. Such materials may include web pages, print ads, direct mail and various types of brochures or marketing sheets, and various media formats other than those listed (including without limitation video or audio presentations through any media form). In these materials, the Servicer or the Funding Lender also may discuss at a high level the types of services and solutions the Servicer or the Funding Lender has provided the Borrower. This authorization shall remain in effect unless the Borrower notifies the Funding Lender and the Servicer in writing in accordance with the notice provisions set forth herein that such authorization is revoked. The Servicer or the Funding Lender shall also have the right to publicize its invol vement in the financing of the Project Facilities, including the right to maintain a sign indicating such involvement at a location at the Project Facilities reasonably acceptable to the Borrower and the Funding Lender.

Section 10.15 Determinations by the Funding Lender and Servicer. Subject to specific provisions in this Agreement to the contrary , in any instance under this Agreemen t where the consent or approval of the Funding Lender or the Servicer may be given or is required, or where any determination, judgment or decision is to be rendered by the Funding Lender or the Servicer under this Agreement, the granting, withholding or denial of such consent or approval a nd the rendering of such determination, judgment or decision shall be made or exercised by the Funding Lender or the Servicer (or its designated representative) at its sole and absolute discretion.

Section 10.16 Further Assurances. The Borrower will promptly and duly execute, acknowledge and deliver from time to time such further instrument s and take such further actions as may be reasonably required by the Governmental Lender, the Funding Lende r or the Servicer to carry out the purposes and provisions of this Agreement and to the other Funding Loan Documents, to make elections or take actions (or, as requested, to refrain from making elections or taking actions) related to the audit procedures involving the Borrower and/or its partners set forth in the Bipartisan Budget Act of 2015 so that the Borrower’s members, equity holders, shareholders, and partners will be directly responsible for any audit adjustments, changes or modifications rather than the Borrower, to confirm the priority and/or perfection of any lien, pledge, assignment or security interest created or intended to be created by this Agreement and the other Funding Loan Documents and to assure the Funding Lender and the Servicer of the subrogation and security rights in favor of the Funding Lender (or the Fiscal Agent for the benefit of the Funding Lender) for the benefit of the Noteowners of the Governmental Notes contemplated by this Agreement, by the other Funding Loan Documents in connection with any of the foregoing and such approvals shall be in form satisfactory to the Funding Lender.

[The remainder of this page is left blank intentionally.] [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

Signature Page to Loan Agreement
IN WITNESS WHEREOF, the Governmental Lender and the Borrower have caused this Agreement to be duly executed and delivered on the day and year first above written.

CITY OF SAN JOSÉ

By:_________________________________
M a r i a Ö b e r g
Director of Finance

Approved as to form:

By:_________________________________
Hana Hardy Gunther
Senior Deputy City Attorney

[Signatures continue on following page]

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

BERRYESSA AFFORDABLE HOUSING, L.P.,
a California limited partnership
By: AHG Berryessa, LLC,
a California limited liability company,
its Administrative General Partner
By: Affirmed Housing Group, Inc.,
a Delaware corporation,
its Manager

By: _________________________________
Name: James P. Silverwood
Title: Manager

By: CFAH Housing LLC,
a California limited liability company,
its Managing General Partner
By: Compass for Affordable Housing,
a California nonprofit public benefit corporation,
its Manager

By: _________________________________
Name: Robin Martinez
Title: Executive Director

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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EXHIBIT A
FORM OF SERIES 2029A BORROWER NOTE
SERIES 2029A PROMISSORY NOTE

AFTER THE ENDORSEMENT AS HEREON PROVIDED AND PLEDGE OF THIS NOTE, THIS NOTE

MAY NOT BE ASSIGNED, PLEDGED, ENDORSED OR OTHERWISE TRANSFERRED EXCEPT TO

AN ASSIGNEE OR SUCCESSOR OF THE FISCAL AGENT IN ACCORDANCE WITH THE FUNDING LOAN AGREEMENT, BOTH REFERRED TO HEREIN.
$[_________________] [May 1], 2029

FOR VALUE RECEIVED, Berryessa Affordable Housing, L.P., a limited partnership duly formed and validly existing under the laws of the State of California (the “Borrower”), by this promissory note (this “Note”) hereby promises to pay to the order of the City of San José (the “Governmental Lender”) the principal sum of _________________________________ and no/100 Dollars ($___________), together with interest on the drawn and unpaid principal amount hereof, from the Conversion Date (as defined in the Funding Loan Agreement referenced below) until paid in full, at a rate per annum, and Acceleration Premium, if any, as set forth herein.

1. Defined Terms. All capitalized terms used but not defined in this Note or Exhibit A hereto shall have the meanings given to such terms in th e Funding Loan Agreement dated as of [May] 1, 2029, among the Governmental Lender, the Fiscal Agent and the Funding Lender.

2. Method of Payment. All payments due under this Note shall be payable to Fiscal Agent, or, if there is no Fiscal Agent, to the Funding Lender, or its successor. Each such payment shall be made by wire transfer of immediately available funds in accordance with wire transfer instructions that the Funding Lender or the Servicer shall supply by written notice to the Borrower from time to time on the date that is two Business Days before any other date that any payment of interest, premium, if any, principal or other amount is required to be made hereunder.

3. Payments Due on Non-Business Days. In any case where the date of maturity of, interest on or premium, if any, or principal of this Note or the date fixed for prepayment of this Note shall not be a Business Day, then payment of such interest, premium or principal need not be made on such date but shall be made on the next succeeding Business Day, with the same force and effect as if made on the date of maturity or the date fixed for prepayment, and, in the case of such payment, no interest shall accrue for the period from and after such date.

4. Interest Rate.
(a) Interest shall accrue on the drawn and unpaid principal of this Note from, and including, the Conversion Date, until the Maturity Date, at th e Fixed Rate. Notwithstanding any other provision of this Note to the contrary, interest shall not exceed the Maximum Rate. (b) Interest shall accrue and be computed for each Accrual Period on the basis of the actual number of days in the period in respect of which payment is being made divided by 360. Accrued interest on this Note shall be paid in arrears on each Loan Payment Date. Interest shall compound monthly on any amounts unpaid on each Loan Payment Date.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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5. Payment of Principal and Interest. Principal and interest shall be paid as follows:
(a) Borrower shall pay all amounts due under this Note at the times and in the amounts set forth herein and in the Borrower Loan Agreem ent. Borrower shall make its payments under this Note in immediately available funds.
(b) Commencing on the First Interest Paymen t Date and continuing on each Loan Payment Date thereafter until and including the First Principal Payment Date, Borrower shall pay monthly payments of interest only, at the Fixed Rate in the amount as set forth on the Debt Service Schedule attached to the Borrower Loan Agr eement as Schedule 3, in successive monthly installments. Such payments shall be made to the Fiscal Agent by 2:00 p.m., New York City time, on each Loan Payment Date.
(c) Commencing on the First Principal Payment Date, and continuing on each Loan Payment Date thereafter until and including the Maturity Date, Borrower shall pay monthly payments of principal and interest in the amount as set forth on the Debt Service Schedule attached to the Borrower Loan Agreement as Schedule 3, in successive monthly installments, in accordance with Section 7(c) hereof. Such payments sha ll be made to the Fiscal Agent by 2:00 p.m., New York City time, on each Loan Payment Date.
(d) Any accrued interest remaining past due may, at the Funding Lender’s discretion, be added to and become part of the unpaid principa l balance and shall bear interest at the rate or rates specified in this Note, and any reference be low to “accrued interest” shall refer to accrued interest that has not become part of the unpaid principal balance. (e) The Borrower shall pay all unpaid principa l of and interest on this Note on the Maturity Date and any other amounts due hereunder.
(f) Any regularly scheduled monthly installments of principal and/or interest that are received by the Fiscal Agent before the date due shall be deemed to have been received on the due date solely for the purpose of calculating interest due. (g) The Borrower shall make all payments of principal and interest under this Note without relief from valuation and appraisement laws.
(h) The Borrower acknowledges that the calcula tion of all interest payments due hereunder shall be made by the Funding Lender and shall be final and conclusive, absent manifest error.

6. Acceleration. If a Default or Event of Default has occurred and is continuing, the entire unpaid principal balance, any accrued interest, the prepayment premium payable hereunder, if any, and all other amounts payable under this No te and any other Funding Loan Document shall at once become due and payable, at the option of the Funding Lender, without any prior notice to the Borrower (except as notice may be required by applicable law, then after such notice). The Funding Lender may exercise this option to accelerate regardless of any prior forbearance.

7. Prepayments. In connection with any prepayment (i.e., any receipt by the Funding Lender of principal, other than principal required to be paid in monthly installments pursuant to Schedule 3, prior to the Maturity Date) made under this Note, whether voluntary or involuntary, a prepayment premium shall be payable to the extent provided in Section 9 of this Note and Section 2.3 of the Borrower Loan Agreement. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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EXCEPT AS OTHERWISE PERMITTED HEREIN, NO VOLUNTARY PREPAYMENTS OF THIS NOTE, IN WHOLE OR IN PART, SHALL BE PERMITTED.
(a) Optional Prepayment. This Note is subject to optional prepayment in whole but not in part, by the Borrower upon not less than forty-five (45) days written notice, by Electronic Means or by first-class mail, po stage prepaid, to the Funding Le nder, the Servicer and the Fiscal Agent (which notice shall be unconditional and irrevocable) on any Loan Payment Date occurring on or after the Par Call Date, at a prepayment price equal to 100% of the principal amount thereof and accrued interest thereon to, but not including, the prepayment date. (b) Mandatory Prepayment.
(i) [Reserved].
(ii) This Note is subject to mandatory prepayment in whole or in part upon the written direction of the Funding Lender on any th e Loan Payment Date to the extent that Insurance Proceeds or a Condemnation Award in connection with the Project Facilities are deposited in the Project Fund and are not to be used to repair or restore the Project Facilities at a prepayment price equal to 100% of the principal amount of this Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date. (iii) This Note is subject to mandatory prepayment in part on any Loan Payment Date upon the written direction of, and in the amount as specified by, the Funding Lender necessary to cause the Project Facilities to meet the requirements of clause (ii) of the definition of “Stabilization,” if the Project Facilities have not achieved Stabilization by the Stabilization Date at a prepayment price equal to 100% of the principal amount of this Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date, plus, if the required prepayment amount unde r this subsection (iii) is greater than ten percent (10%) of the Permanent Loan Amount (such amount above such threshold being referred to herein as the “Excess Prepayment Amount”), a prepayment premium equal to the greater of (x) one percent (1%) multip lied by such Excess Prepayment Amount or (y) Yield Maintenance based on such Excess Prep ayment Amount. For the avoidance of doubt, no prepayment premium shall be requir ed under this subsection (iii) if the prepayment amount required hereunder is less th an or equal to ten percent (10%) of the Permanent Loan Amount.
(iv) This Note is subject to extraordinar y mandatory prepayment in whole or in part on any Loan Payment Date at the direction of the Funding Lender at a prepayment price equal to 100% of the principal amount of this Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date following receipt by the Fiscal Agent of the direction of the Funding Lender, within one hundred eighty (180) days of the occurrence of any of the following events:
(A) the Project Facilities shall have been damaged or destroyed to such an extent that in the judgment of the Funding Lender (A) the Borrower is thereby prevented from carrying on its normal operations at the Project Facilities for a period of twelve (12) consecutive months, or (B) it would not be economically feasible for the Borrower to replace, repair, rebuild or restore the same;
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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(B) title in and to, or the temporary u se of, all or substantially all of the Project Facilities shall have been taken under the exercise of the power of eminent domain by any Governmental Authority or any Person acting under Governmental Authority (including such a taking as, in the judgment of the Funding Lender, results in the Borrower being prevented thereby from carrying on its normal operations at the Project Facilities for a period of twelve (12) consecutive months);
(C) as a result of any changes in the Constitution of the State, or the Constitution of the United States of America or by legislative or administrative action (whether state or federal) or by final decree, judgment, decision or order of any court or administrative body (whether state or federal), the Funding Loan Agreement or the other Funding Loan Documents (in each case, as determined by the Funding Lender) shall have become void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed therein, as determined by the Funding Lender;
(D) unreasonable burdens or excessive liabilities shall have been imposed on the Borrower with respect to th e operations of the Project Facilities, including, without limitation federal, state or other ad valorem, property, income or other taxes not being imposed on the date of this Note that, in the judgment of the Funding Lender, render the continued operation of the Project Facilities uneconomical;
(E) changes which the Borrower cannot reasonably control or overcome in the economic availability of materials, supplies, labor, equipment and other properties and things necessary for the efficient operation of the Project Facilities for the purposes contemplated by the Borrower Loan Agreement shall have occurred or technological chang es that the Borrower cannot reasonably overcome shall have occurred that, in the judgment of the Funding Lender, render the continued operation of the Project Facilities uneconomical; (F) legal curtailment of the Borrower’s use and occupancy of all or substantially all of the Project Facilities fo r any reason other than that set forth in (2) above, which curtailment shall, in the judgment of the Funding Lender, prevent the Borrower from carrying on its normal operations at the Project Facilities for a period of twelve (12) consecutive months; or
(G) the Borrower Loan Agreement is terminated prior to its expiration for any reason, including the occurrence of an Event of Default under the Borrower Loan Agreement.
(v) This Note is subject to mandatory pr epayment in whole at a prepayment price equal to 100% of the principal amount of this Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date, on the first Loan Payment Date for which notice of prepayment can be given in accordance with the Funding Loan Agreement within forty-five (45) days after the occurrence of a Determination of Taxability; provided, however, if mandatory prepayment on account of a Determination of Taxability of less than all of the Series 2029A Governmental Note would result, in the opinion of Tax Counsel, in the interest on the Series 2029A Governmental Note outstanding following such mandatory prepayment being excludable from the gross income of the Noteowners of [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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such Series 2029A Governmental Note outstanding, then this Note is subject to mandatory prepayment upon the occurrence of a Determination of Taxability in the amount specified in such opinion.
(vi) This Note is subject to mandatory prepayment in whole on any Loan Payment Date specified by the Funding Lender on or after May 1, 2044, if the Funding Lender directs prepayment by providing written notice, by Electronic Means, to the Borrower, the Fiscal Agent and the Governmental Lender at least one hundred eighty (180) days prior to the Loan Payment Date specified in such notice on which this Note is to be prepaid at a prepayment price equal to 100% of the principal amount hereof plus interest accrued thereon to, but not including, the prepayment date set forth in such notice. (c) Mandatory Sinking Fund Prepayment . The Series 2029A Governmental Note is subject to mandatory sinking fund prepayment in part on each Principal Payment Date, from amounts paid by the Borrower to the Fiscal Agent under this Note for deposit into the Prepayment Fund pursuant to Sections 2.3(d) and 8.3 of the Borrower Loan Agreement (in the amount set forth on Schedule 3 attached to the Borrower Loan Agreement, as supplemented from time to time), at a prepayment price equal to 100% of the principa l amount of the Series 2029A Governmental Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date.

8. Obligations of the Borrower Absolute and Unconditional . Subject to Section 10.13 of the Borrower Loan Agreement, the obligation of the Borrower to make all payments required under this Note and the other Funding Loan Documents on or before the date the same become due, and to perform all of its other obligations, covenants and agr eements hereunder and under the other Funding Loan Documents shall be primary, absolute, unconditional and irrevocable, and shall be paid or performed strictly in accordance with the terms of this Note and the other Funding Loan Do cuments under any and all circumstances, without notice or demand, and wit hout abatement, deduction, set-off, counterclaim, recoupment or defense or any right of termination or cancellation arising from any circumstance whatsoever, whether now existing or hereafter arising, and irrespective of whether the Borrower’s title to the Property mortgaged under the Mortgage or to any part thereof is defective or nonexistent, and notwithstanding any damage due to loss, theft or destruction of such Property or any part thereof, any failure of consideration or frustration of commercial purpose, the taking by eminent domain of title to or of the right of temporary use of all or any part of the Property, legal curtailment of the Borrower’s use thereof, the eviction or constructive eviction of the Borrower, any change in the tax or other laws of the United States of America, the State or any political subdivision thereof, any change in the Funding Lender’s legal organization or status, or any default of the Governmental Lender or the Funding Lender under any Funding Loan Document, and regardless of the invalidity of a ny action of the Funding Lender or the invalidity of any portion of this Note or the other Funding Loan Documents. Provided further, the obligations of Borrower under this Note and the other Funding Loan Documents shall not be affected by:
(a) any lack of validity or enforceability of any Funding Loan Document; (b) any amendment of, or any waiver or con sent with respect to, any of the Funding Loan Documents;
(c) the existence of any claim, set-off, defense or other rights which the Borrower, the General Partner or the Guarantor may have at any time against the Funding Lender (other than the defense of payment in accordan ce with the terms of this Note or the other Funding Loan Documents) or any other Person, whether in connection with this Note or any other Funding Loan Document or any transaction contemplated thereby or any unrelated transaction; [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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(d) any breach of contract or other dispute between the Borrower, the General Partner or the Guarantor, and the Funding Lender;
(e) any requisition or any document presented in connection therewith, proving to be forged, fraudulent, untrue, inaccurate, invalid or insufficient in any respect (except in the event of willful misconduct by the Funding Lender with respect to same); or (f) any exchange, release or nonperfection of any lien or security interest in any collateral pledged or otherwise pr ovided to secure any of the Obliga tions contemplated herein or in any other Funding Loan Document.

The Borrower hereby waives the application to it of th e provisions of any statute or other law now or hereafter in effect contrary to any of its Obligations , covenants or agreements under this Note or the other Funding Loan Documents or which releases or purpor ts to release the Borrower therefrom. Nothing contained herein shall be construed as prohibiting th e Borrower from pursuing any rights or remedies it may have against any Person in a separate legal proceeding.

9. Default Interest and Acceleration Premium . In the event that principal or interest payable on this Note is not paid when due, there shall be payable on the amount not timely paid, interest at the Default Rate, to the extent permitted by law. This interest shall accrue at the Default Rate until the unpaid amount, together with interest th ereon, shall have been paid in fu ll. In the event there shall have occurred an acceleration of this Note or the Borrower’s Obligations under the Borrower Loan Agreement following an Event of Default on or before the Par Call Date, any tender of payment of any amount necessary to pay this Note in full shall include the Acceleration Premium.

10. Costs and Expenses. To the fullest extent allowed by applicable law, the Borrower shall pay all expenses and costs, includi ng, without limitation, out-of-poc ket expenses and reasonable fees of attorneys (including, without limitation, in-house attorneys) and expert witnesses and costs of investigation, incurred by the Funding Lender as a result of any default under this Note or in connection with efforts to collect any amount due under this Note, or to enfor ce the provisions of any of the other Funding Loan Documents, including those incurred in post-judgment collection efforts and in any bankruptcy proceeding (including any action for relief from the automatic stay of any bankruptcy proceeding) or judicial or non- judicial foreclosure proceeding. For purposes of this Section 10, attorneys’ out of pocket expenses shall include, but are not limited to, support staff costs, costs of preparing for litigation, computerized research, telephone and facsimile transmission expenses, mileage, deposition cost s, postage, duplicating, process service, videotaping and similar costs and expenses.

11. Waivers. Presentment, demand, notice of dishonor, protest, notice of acceleration, notice of intent to demand or accelerate payment or matu rity, presentment for payment, notice of nonpayment, grace, and diligence in collecting the Indebtedness are waived by the Borrower and all endorsers and guarantors of this Note and all other third party obligors.

12. Governing Law. This Note shall be governed by a nd enforced in accordance with the laws of the State, without giving effect to the choice of law principles of the State that would require the application of the laws of a jurisdiction other than the State.

13. Consent to Jurisdiction and Venue . The Borrower agrees that any controversy arising under or in relation to this Note shall be litigated exclusively in a court located within the County of Santa Clara, California, which shall have exclusive jurisd iction over all controversies which shall arise under or in relation to this Note. The Borrower irrevocably consents to service, jurisdiction, and venue in a court [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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located within the County of Santa Clara, California for any such litigation and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.

14. Further Assurances. The Borrower shall at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further action that may be reasonably necessary or desirable, or that the Funding Lender may reasonably request, in order to protect any right or interest granted by this Note or to enable the Funding Lender to exercise and enforce its rights and remedies under this Note.

15. Captions. The captions of the sections of this Note are for convenience only and shall be disregarded in construing this Note.

16. Servicer. The Borrower hereby acknowledges and ag rees that, pursuant to the terms of the Funding Loan Documents: (a) from time to time, the Funding Lender may appoint a servicer to collect payments, escrows and deposits, to gi ve and to receive notices under this Note or the other Funding Loan Documents, and to otherwise service the Borrower Loan and (b) unless the Borrower receives written notice from the Funding Lender to the contrary, any action or ri ght which shall or may be taken or exercised by the Funding Lender may be taken or exercised by such servicer with the same force and effect.

17. Waiver of Trial by Jury . TO THE MAXIMUM EXTENT PERMITTED UNDER

APPLICABLE LAW, EACH OF THE BORROWER AND THE FUNDING LENDER, BUT NOT THE

GOVERNMENTAL LENDER,(A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY

WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE RELATIONSHIP

BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY

RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS

SEPARATELY GIVEN BY EACH PARTY OTHER THAN THE GOVERNMENTAL LENDER KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.

18. Time of the Essence. Time is of the essence with respect to this Note.

[Signature on Following Page]

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

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IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Promissory Note or caused this Promissory Note to be duly executed and delivered by its authorized representative as of the date first set forth above.

By: _________________________________
Name: James P. Silverwood
Title: Manager

By: CFAH Housing LLC,
a California limited liability company,
its Managing General Partner
By: Compass for Affordable Housing,
a California nonprofit public benefit corporation,
its Manager

By: _________________________________
Name: Robin Martinez
Title: Executive Director

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

A-9

ENDORSEMENT
Pay to the order of UMB Bank, National Association, without recourse, as Fiscal Agent under the Funding Loan Agreement referred to in the within mentioned Agreement, as security for the Series 2029A Governmental Note delivered under such Funding Lo an Agreement. This endorsement is given without any warranty as to the authority or genuineness of the signature of the maker of the Borrower Note.

CITY OF SAN JOSÉ

By:_________________________________
_____________________________
Director of Finance

Approved as to form:

By:_________________________________
____________________
Senior Deputy City Attorney

Dated: ___________________, 2029

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

A-10

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-1

EXHIBIT B
FORM OF SERIES 2029B BORROWER NOTE
SERIES 2029B PROMISSORY NOTE

AFTER THE ENDORSEMENT AS HEREON PROVIDED AND PLEDGE OF THIS NOTE, THIS NOTE

MAY NOT BE ASSIGNED, PLEDGED, ENDORSED OR OTHERWISE TRANSFERRED EXCEPT TO

AN ASSIGNEE OR SUCCESSOR OF THE FISCAL AGENT IN ACCORDANCE WITH THE FUNDING LOAN AGREEMENT, BOTH REFERRED TO HEREIN.
$[_________________] [May 1], 2029

FOR VALUE RECEIVED, Berryessa Affordable Housing, L.P., a limited partnership duly formed and validly existing under the laws of the State of California (the “Borrower”), by this promissory note (this “Note”) hereby promises to pay to the order of the City of San José (the “Governmental Lender”) the principal sum of [_________________________________ and no/100 Dollars ($___________)], together with interest on the drawn and unpaid principal amount hereof, from the Conversion Date (as defined in the Funding Loan Agreement referenced below) until paid in full, at a rate per annum, and Acceleration Premium, if any, as set forth herein.

4. Interest Rate.
(a) Interest shall accrue on the drawn and unpaid principal of this Note from, and including, the Conversion Date, until the Maturity Date, at the Adjustable Rate. Notwithstanding any other provision of this Note to the contrary, interest shall not ex ceed the Maximum Rate. The Adjustable Rate shall be determined by the Funding Lender on each Rate Determination Date and the Funding Lender will promptly, after such Rate Determination Date, notify the Fiscal Agent, the Borrower and the Servicer via electronic mail of the applicable Adjustable Rate. The determin ation of the Adjustable Rate by the Funding Lender, absent manifest error, shall be conclusive and bi nding on the Borrower and the Fiscal Agent. The Adjustable Rate and related terms shall be subject to the Benchmark Replacement Setting provisions and defined terms set forth in Schedule A attached hereto and Schedule A is made a part hereof in its entirety. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-2

(b) Interest shall accrue and be computed for each Accrual Period on the basis of the actual number of days in the period in respect of which payment is being made divided by 360. Accrued interest on this Note shall be paid in arrears on each Loan Payment Date. Interest shall compound monthly on any amounts unpaid on each Loan Payment Date.
(c) If the Funding Lender at any time determines, in its sole but reasonable discretion, that it has miscalculated the amounts due hereunder (whether because of a miscalculation of the Adjustable Rate or otherwise), then the Funding Lender shall give prompt notice to the Borrower and the Fiscal Agent (with a copy to the Servicer) of the corrected amount of the interest due hereunder (and the corrected Adjustable Rate, if applicable) and (a) if the corrected amount of the interest due hereunder represents an increase, then the Borrower shall, within thirty (30) calendar days thereafter, pay to the Funding Lender any sums that the Borrower would have otherwise been obligated to pay under this Note had the amount of the interest due hereunder not been miscalculated, or (b) if the corrected amount of the interest due hereunder represents a decrease thereof, then such amount shall be held by the F unding Lender and applied as a credit to the amount payable by the Borrower on the next Loan Payment Date.

5. Payment of Principal and Interest. Principal and interest shall be paid as follows:
(a) Borrower shall pay all amounts due under this Note at the times and in the amounts set forth herein and in the Borrower Loan Agreem ent. Borrower shall make its payments under this Note in immediately available funds.
(b) Commencing on the First Interest Paymen t Date and continuing on each Loan Payment Date thereafter, the Borrower shall pay monthly payments of interest only, at the Adjustable Rate, in successive monthly installmen ts. Such payments shall be made to the Fiscal Agent by 2:00 p.m., New York City time, on each Loan Payment Date. (c) [Reserved].
(d) Any accrued interest remaining past due may, at the Funding Lender’s discretion, be added to and become part of the unpaid principa l balance and shall bear interest at the rate or rates specified in this Note, and any reference be low to “accrued interest” shall refer to accrued interest that has not become part of the unpaid principal balance. (e) The Borrower shall pay all unpaid principa l of and interest on this Note on the Maturity Date and any other amounts due hereunder.
(f) Any regularly scheduled monthly installments of interest that are received by the Fiscal Agent before the date due shall be deemed to have been received on the due date solely for the purpose of calculating interest due.
(g) The Borrower shall make all payments of principal and interest under this Note without relief from valuation and appraisement laws.
(h) The Borrower acknowledges that the calcula tion of all interest payments due hereunder shall be made by the Funding Lender and shall be final and conclusive, absent manifest error.

6. Acceleration. If a Default or Event of Default has occurred and is continuing, the entire unpaid principal balance, any accrued interest, the prepayment premium payable hereunder, if any, and all other amounts payable under this No te and any other Funding Loan Document shall at once become due [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-3

and payable, at the option of the Funding Lender, without any prior notice to the Borrower (except as notice may be required by applicable law, then after such notice). The Funding Lender may exercise this option to accelerate regardless of any prior forbearance.

7. Prepayments. In connection with any prepayment (i.e., any receipt by the Funding Lender of principal) made under this Note, whether voluntary or involuntary, a prepayment premium shall be payable to the extent provided in Section 9 of this Note and Section 2. 3 of the Borrower Loan Agreement.

EXCEPT AS OTHERWISE PERMITTED HEREIN, NO VOLUNTARY PREPAYMENTS OF THIS NOTE, IN WHOLE OR IN PART, SHALL BE PERMITTED.
(a) Optional Prepayment. Except as described in subsection (b)(vii) below, this Note is not subject to optional prepayment.
(b) Mandatory Prepayment.
(i) [Reserved].
(ii) This Note is subject to mandatory prepayment in whole or in part upon the written direction of the Funding Lender on any th e Loan Payment Date to the extent that Insurance Proceeds or a Condemnation Award in connection with the Project Facilities are deposited in the Project Fund and are not to be used to repair or restore the Project Facilities at a prepayment price equal to 100% of the principal amount of this Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date. (iii) [Reserved].
(iv) This Note is subject to extraordinar y mandatory prepayment in whole or in part on any Loan Payment Date at the direction of the Funding Lender at a prepayment price equal to 100% of the principal amount of this Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date following receipt by the Fiscal Agent of the direction of the Funding Lender, within one hundred eighty (180) days of the occurrence of any of the following events:
(A) the Project Facilities shall have been damaged or destroyed to such an extent that in the judgment of the Funding Lender (A) the Borrower is thereby prevented from carrying on its normal operations at the Project Facilities for a period of twelve (12) consecutive months, or (B) it would not be economically feasible for the Borrower to replace, repair, rebuild or restore the same;
(B) title in and to, or the temporary u se of, all or substantially all of the Project Facilities shall have been taken under the exercise of the power of eminent domain by any Governmental Authority or any Person acting under Governmental Authority (including such a taking as, in the judgment of the Funding Lender, results in the Borrower being prevented thereby from carrying on its normal operations at the Project Facilities for a period of twelve (12) consecutive months);
(C) as a result of any changes in the Constitution of the State, or the Constitution of the United States of America or by legislative or administrative action (whether state or federal) or by final decree, judgment, decision or order of [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-4

any court or administrative body (whether state or federal), the Funding Loan Agreement or the other Funding Loan Documents (in each case, as determined by the Funding Lender) shall have become void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed therein, as determined by the Funding Lender;
(D) unreasonable burdens or excessive liabilities shall have been imposed on the Borrower with respect to th e operations of the Project Facilities, including, without limitation federal, state or other ad valorem, property, income or other taxes not being imposed on the date of this Note that, in the judgment of the Funding Lender, render the continued operation of the Project Facilities uneconomical;
(E) changes which the Borrower cannot reasonably control or overcome in the economic availability of materials, supplies, labor, equipment and other properties and things necessary for the efficient operation of the Project Facilities for the purposes contemplated by the Borrower Loan Agreement shall have occurred or technological chang es that the Borrower cannot reasonably overcome shall have occurred that, in the judgment of the Funding Lender, render the continued operation of the Project Facilities uneconomical; (F) legal curtailment of the Borrower’s use and occupancy of all or substantially all of the Project Facilities fo r any reason other than that set forth in (2) above, which curtailment shall, in the judgment of the Funding Lender, prevent the Borrower from carrying on its normal operations at the Project Facilities for a period of twelve (12) consecutive months; or
(G) the Borrower Loan Agreement is terminated prior to its expiration for any reason, including the occurrence of an Event of Default under the Borrower Loan Agreement.
(v) This Note is subject to mandatory pr epayment in whole at a prepayment price equal to 100% of the principal amount of this Note to be prepaid plus interest accrued thereon to, but not including, the prepayment date, on the first Loan Payment Date for which notice of prepayment can be given in accordance with the Funding Loan Agreement within forty-five (45) days after the occurrence of a Determination of Taxability; provided, however, if mandatory prepayment on account of a Determination of Taxability of less than all of the Series 2029B Governmental Note would result, in the opinion of Tax Counsel, in the interest on the Series 2029B Governmental Note outstanding following such mandatory prepayment being excludable from the gross income of the Noteowners of such Series 2029B Governmental Note outstanding, then this Note is subject to mandatory prepayment upon the occurrence of a Determination of Taxability in the amount specified in such opinion.
(vi) [Reserved].
(vii) This Note is subject to mandatory prepayment in full on any Loan Payment Date specified by the Funding Lender following the Conversion Date but not later than the Stabilization Date at a prepayment price equal to 100% of the principal amount of this Note to be prepaid without premium or penalty plus interest accrued thereon to, but not including, the prepayment date.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-5

8. Obligations of the Borrower Absolute and Unconditional . Subject to Section 10.13 of the Borrower Loan Agreement, the obligation of the Borrower to make all payments required under this Note and the other Funding Loan Documents on or before the date the same become due, and to perform all of its other obligations, covenants and agr eements hereunder and under the other Funding Loan Documents shall be primary, absolute, unconditional and irrevocable, and shall be paid or performed strictly in accordance with the terms of this Note and the other Funding Loan Do cuments under any and all circumstances, without notice or demand, and wit hout abatement, deduction, set-off, counterclaim, recoupment or defense or any right of termination or cancellation arising from any circumstance whatsoever, whether now existing or hereafter arising, and irrespective of whether the Borrower’s title to the Property mortgaged under the Mortgage or to any part thereof is defective or nonexistent, and notwithstanding any damage due to loss, theft or destruction of such Property or any part thereof, any failure of consideration or frustration of commercial purpose, the taking by eminent domain of title to or of the right of temporary use of all or any part of the Property, legal curtailment of the Borrower’s use thereof, the eviction or constructive eviction of the Borrower, any change in the tax or other laws of the United States of America, the State or any political subdivision thereof, any change in the Funding Lender’s legal organization or status, or any default of the Governmental Lender or the Funding Lender under any Funding Loan Document, and regardless of the invalidity of a ny action of the Funding Lender or the invalidity of any portion of this Note or the other Funding Loan Documents. Provided further, the obligations of Borrower under this Note and the other Funding Loan Documents shall not be affected by:
(a) any lack of validity or enforceability of any Funding Loan Document; (b) any amendment of, or any waiver or con sent with respect to, any of the Funding Loan Documents;
(c) the existence of any claim, set-off, defense or other rights which the Borrower, the General Partner or the Guarantor may have at any time against the Funding Lender (other than the defense of payment in accordan ce with the terms of this Note or the other Funding Loan Documents) or any other Person, whether in connection with this Note or any other Funding Loan Document or any transaction contemplated thereby or any unrelated transaction; (d) any breach of contract or other dispute between the Borrower, the General Partner or the Guarantor, and the Funding Lender;
(e) any requisition or any document presented in connection therewith, proving to be forged, fraudulent, untrue, inaccurate, invalid or insufficient in any respect (except in the event of willful misconduct by the Funding Lender with respect to same); or (f) any exchange, release or nonperfection of any lien or security interest in any collateral pledged or otherwise pr ovided to secure any of the Obliga tions contemplated herein or in any other Funding Loan Document.

B-6

unpaid amount, together with interest th ereon, shall have been paid in fu ll. In the event there shall have occurred an acceleration of this Note or the Borrower’s Obligations under the Borrower Loan Agreement following an Event of Default on or before the Ma turity Date, any tender of payment of any amount necessary to pay this Note in full shall include the Acceleration Premium.

13. Consent to Jurisdiction and Venue . The Borrower agrees that any controversy arising under or in relation to this Note shall be litigated exclusively in a court located within the County of Santa Clara, California, which shall have exclusive jurisd iction over all controversies which shall arise under or in relation to this Note. The Borrower irrevocably consents to service, jurisdiction, and venue in a court located within the County of Santa Clara, California for any such litigation and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.

15. Captions. The captions of the sections of this Note are for convenience only and shall be disregarded in construing this Note.

17. Waiver of Trial by Jury . TO THE MAXIMUM EXTENT PERMITTED UNDER

APPLICABLE LAW, EACH OF THE BORROWER AND THE FUNDING LENDER, BUT NOT THE [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-7

GOVERNMENTAL LENDER,(A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY

WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE RELATIONSHIP

BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY

RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS

SEPARATELY GIVEN BY EACH PARTY OTHER THAN THE GOVERNMENTAL LENDER KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.

18. Time of the Essence. Time is of the essence with respect to this Note.

[Signature on Following Page]

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-8

IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Promissory Note or caused this Promissory Note to be duly executed and delivered by its authorized representative as of the date first set forth above.

By: _________________________________
Name: James P. Silverwood
Title: Manager

By: CFAH Housing LLC,
a California limited liability company,
its Managing General Partner
By: Compass for Affordable Housing,
a California nonprofit public benefit corporation,
its Manager

By: _________________________________
Name: Robin Martinez
Title: Executive Director

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-9

ENDORSEMENT
Pay to the order of UMB Bank, National Association, without recourse, as Fiscal Agent under the Funding Loan Agreement referred to in the within mentioned Agreement, as security for the Series 2029B Governmental Note delivered under such Funding Lo an Agreement. This endorsement is given without any warranty as to the authority or genuineness of the signature of the maker of the Borrower Note.

CITY OF SAN JOSÉ

By:_________________________________
___________________________
Director of Finance

Approved as to form:

By:_________________________________
____________________
Senior Deputy City Attorney

Dated: ___________________, 2029

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-10

EXHIBIT A
Defined Terms
For purposes of the foregoing Borrower Note, the following terms shall have the meanings set forth below:
“Accrual Period” means the period commencing on the first calendar day of each month to but excluding the first calendar day of the following month (without adjustment in either case for Business Day payment conventions). The initial Accrual Period shall be the period commencing on the Conversion Date and to but excluding the first calendar day of the month immediately following the Conversion Date. “Adjustable Rate” means the sum of (i) the Benchmark, an d (ii) the Margin, which sum is then rounded to five decimal places.
“Benchmark” means, initially, Term SOFR; provided that : (i) if the Funding Lender determines prior to the Reference Time that a Benchmark Transition Event and its relate d Benchmark Replacement Date have occurred with respect to Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement; and (ii) if the Benchmark or Replaceme nt Benchmark would be less than the Floor on any Rate Determination Date, such Benchmark or Replacement Benchmark shall be deemed to be equal to the Floor for the purposes of this Note. “Benchmark Replacement” means the first alternative set fort h in the order below that can be determined by the Funding Lender as of the Benchmark Replacement Date, in a manner consistent with the Funding Lender’s determination for other floating rate loans secured by mortgages on similar commercial real estate assets:
(a) Compounded SOFR for an Accrual Peri od of one-month’s duration if, on the applicable Rate Determination Date, the Fundin g Lender determines in its sole discretion that Compounded SOFR will be operationally, administratively, and technically feasible; or (b) the sum of (a) the alternate Benchmark rate that has been selected by the Funding Lender as the replacement for the then current Be nchmark giving due consideration to (i) any selection or recommendation of a replacement benc hmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then current Benchmark for U.S. dollar-denominated secured real estate loans at such time and (b) the Benchmark Replacement Adjustment.
“Benchmark Replacement Adjustment” means, for purposes of clau se (b) of the definition of “Benchmark Replacement,” the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Funding Lender giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark and in a manner consistent with the Funding Lender’s determination for other floating rate loans secured by mortgages on similar commercial real estate assets. “Benchmark Replacement Conforming Changes ” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to Accrual Periods, the timing and frequency of determining rates and making payments of interest, length of lookback periods, rounding of amounts or tenors, and other technical, administrative or operational matters) that the Funding Lender decides may be appropriate to reflect the adoption of such Benchmark Replacement in a [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-11

manner substantially consistent with market practice (or, if the Funding Lender decides that adoption of any portion of such market practice is not administra tively feasible or if the Funding Lender determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Funding Lender determines is reasonably neces sary in connection with the administration of this Note), in each case, in a manner consistent with the Funding Lender’s determination for other floating rate loans secured by mortgages on similar commercial real estate assets.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark (including the daily published component used in the calculation thereof):
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (1) the date of the public statement or publication of information referenced therein and (2) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark (or such component); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or (c) in the case of clause (d) of the defin ition of “Benchmark Transition Event,” the date specified in the notice to the Borrower.

For the avoidance of doubt, if the event that gives rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination. “Benchmark Source” means with respect to Compounde d SOFR, the website of the SOFR Administrator, with respect to Term SOFR, the website of CME Group Benchmark Administration Ltd., as applicable (or a successor administrator or benchm ark source for Compounded SOFR or Term SOFR selected by Funding Lender in its reasonable discreti on), in each case, in a manner consistent with the Funding Lender’s determination for other floating rate loans secured by mortgages on similar commercial real estate assets.
“Benchmark Transition Event ” means the occurrence of one or more of the following events with respect to the then-current Benchmark (inclu ding the daily published component used in the calculation thereof):
(a) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or such com ponent) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or (b) a public statement or publication of in formation by the regulatory supervisor for the administrator of the Benchmark (or such component), the central bank for the currency of the Benchmark (or such component), an insolvency o fficial with jurisdiction over the administrator for the Benchmark (or such component), a reso lution authority with jurisdiction over the administrator for the Benchmark (or such compon ent) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or inde finitely, provided that, at the time of such [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-12

statement or publication, there is no successor ad ministrator that will continue to provide the Benchmark (or such component); or
(c) a public statement or publication of in formation by the regulatory supervisor for the administrator of the Benchmark announcing th at the Benchmark is no longer representative or in compliance with or aligned with the Inte rnational Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; or
(d) a determination by the Funding Lende r by notice to the Borrower (in its sole discretion but after giving due consideration to any recommendation of a Relevant Governmental Body or industry standard) that the Benchmark is no longer representative. “Compounded SOFR” means the compounded average of SOFR over a rolling 30-calendar day period as such rate is currently published on the Benchmark Source as “30-Day Average SOFR.” “First Interest Payment Date” means [June] 1, 2029.
“Floor” means 0.00% (0 basis points).
“Loan Payment Date” means: (i) the first Business Day of each month, commencing on the First Interest Payment Date, and (ii) any other date on whic h the Borrower Note is prep aid or paid, whether at the scheduled maturity or upon the acceleration of the maturity thereof. “Margin” means 1.90% (190 basis points).
“Maturity Date” means May 1, 2031.
“Maximum Rate” means the lesser of (i) twelve percent (12%) per annum or (ii) the maximum interest rate that may be paid on the Borrower Loan under the laws of the State. “Rate Determination Date” means 3:00 p.m. (New York time) on the day that is two U.S.

Government Securities Business Days prior the first day of such Accrual Period; provided, however, that if Benchmark has not been published by the SOFR Administrator and a Benchmark Replacement Date has not occurred, then the Benchmark will be the Benchmark by the SOFR Administrator on the first preceding U.S. Government Securities Business Day for wh ich such Benchmark was published by the SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than five U.S. Government Securities Business Days prior to such Rate Determination Date. “Reference Time” with respect to any determination of the Benchmark means (1) if the Benchmark is Term SOFR or Compounded SOFR, the Rate Determination Date, and (2) if the Benchmark is not a rate based on or referencing SOFR, the time determined by the Funding Lender after giving effect to the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto. “SOFR” means a rate per annum equal to the secured overnight financing rate for such U.S.

Government Securities Business Day as such rate is currently published on the Benchmark Source. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-13

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “Term SOFR” means the forward-looking term rate with a tenor of approxi mately one calendar month based on SOFR that is recommended by the Relevant Governmental Body. “U.S. Government Securities Business Day” means any day except for a Saturday, a Sunday or a day on which the Securities Industry and Financia l Markets Association (or a successor organization) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-14

SCHEDULE A

BENCHMARK REPLACEMENT SETTING
Benchmark Replacement.
(a) If the Funding Lender determines prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacemen t Date have occurred with respect to the then- current Benchmark, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to this Note in respect of all determinations on such date and for all determinations on all subsequent dates without any amendment to, or further action or consent of any other party to this Note. (b) In connection with the implementation of a Benchmark Replacement, the Funding Lender will have the right to make Benchmark Replacement Conformi ng Changes from time to time.

Notwithstanding anything to the contrary in this Note or in any other Funding Loan Documents, any amendments to this Note or the other Funding Loan Documents implementing such Benchmark Replacement Conforming Changes will become effective and binding on the Borrower upon notice by the Funding Lender to the Borrower without the necessity of any action by or consent of any other party. (c) Any determination, decision or election that may be made by the Funding Lender pursuant to this Note, including any determination with resp ect to administrative feasibility (whether due to technical, administrative or operational issues), a tenor, a rate, an adjustment or the occurrence or non- occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent ma nifest error, and, notwithstanding anything to the contrary in the documentation relating to this Note, will become effec tive without consent from any other party. Each such determination, decision and election will be in the Funding Lender’s sole discretion. (d) The Funding Lender will promptly provide no tice to the Borrower of (i) any Benchmark Replacement Date and the related Benchmark Repl acement, (ii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iii) the removal or reinstatement of any tenor of a Benchmark.

For the avoidance of doubt, any notice required to be delivered by the Funding Lender as set forth herein may be provided, at the option of the Funding Lender (in its sole discretion), in one or more notices and may be delivered together with, or as part of any amendment which im plements any Benchmark Replacement or Benchmark Replacement Conforming Changes. (e) The Funding Lender does not warrant or accept any responsibility for, and shall not have any liability with respect to (i) the administration, submission or any other matter related to SOFR or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation any Benchmark Replacement implem ented hereunder), (ii) the composition or characteristics of any Benchmark Replacement, including whether it is si milar to, or produces the same value or economic equivalence to SOFR (or any other Benchmark) or has the same volume or liquidity as did SOFR (or any other Benchmark), (iii) any actions or use of its discre tion or other decisions or determinations made with respect to any matters covered by this Note includi ng, without limitation, whether or not a Benchmark Transition Event has occurred, the removal or lack thereof of unavailable or non-representative tenors, the implementation or lack thereof of any Benchmark Replacement Conforming Changes, the delivery or non- delivery of any notices required hereby or otherwise in accordance herewith , and (iv) the effect of any of the foregoing provisions of this Note.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

C-1

EXHIBIT C

MOISTURE DISCLOSURE STATEMENT

This Addendum to the Residential Lease Cont ract (this “Addendum”) dated the day of, ______, 20__ between Berryessa Affordable Housing, L.P. (“Own er”) and _____ (“Residents”) for the premises located at 1565 Mabury Road, San José, California 95133 (the “Leased Premises”). All capitalized terms used but not defined herein shall have the meaning set forth in the Residential Lease Contract.

Mildew, mold and fungi are everywhere in our indoor and outdoor environments. In fact, they play an important and necessary role in decomposition and breaking down of organic matter. All mildew, mold and fungi require water or dampness to grow. Indoors, this water intrusion can come from flooding, backed- up sewers, leaky buildings, humidifiers , constant plumbing leaks, steam, poor housekeeping, wet clothes, appliances not properly vented, inadequate air circulation, etc.

There are a number of factors that influence the growth of mildew, mold and fungi: environmental humidity and moisture content of materials, temper ature, air circulation, light, and the chemical composition of potential substances. If there is mildew, mold and fungi growing, you can impact its amplification by affecting the water source, encouraging proper ventilation, and drying out the area.

There are no established guidelines for unacceptable air quality caused by mildew, mold and fungi.

Mildew, mold and fungi are a naturally occurring phenomenon. Mildew, mold and fungi should be cleaned as soon as it appears. Mildew, mold and fungi can often be seen in the form of discoloration. The different colors of mildew, mold and fungi range from white to black, including, but not limited to, green, gray brown, orange, yellow and other colors.

Your housekeeping and living habits are an integral part of the ability of mildew, mold and fungi to grow. In order for mildew, mold and fungi to grow water and/or moisture must be present.

RESIDENTS AGREE to maintain the Leased Premi ses in a manner that prevents the occurrence of mildew, mold and fungi growth within the Leased Premises. In furtherance of such obligation, RESIDENTS AGREE TO PERFORM THE FOLLOWING:

1. To keep the Leased Premises free from dirt a nd debris that can harbor moisture and result in mildew, mold and fungi growth;

2. To inspect the Leased Premises regularly for the indications and sources of indoor moisture;

3. To immediately report to the Owner any water intrusion, such as roof leaks, window leaks, plumbing leaks, drips, or “sweating” pipes;

4. To immediately notify Owner of overfl ows from bathroom, kitchen, or the Leased Premises laundry facilities, especially in cases where the overflow may have permeated walls or cabinets;

5. To immediately notify Owner in writing of any significant mildew, mold and fungi growth on surfaces in the Leased Premises;

6. To not air dry wet clothes indoors;
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-2

7. To use bathroom exhaust fans while shower ing or bathing and use stove hood exhaust fans whenever cooking, dishwashing, or cleaning and to notify Owner of any nonworking fan.

If the Leased Premises is equipped with an au tomatic ventilation fan, Residents agree to not disable or otherwise adjust the fan settings;

8. To notify Owner of any problems with the heating, ventilating, and/or air conditioning systems;

9. To water plants outdoors;

10. To clean upon first appearance, any mildew from condensation on window interiors, bathroom & kitchen walls, floors and/or ceilings. Residents understand that mildew, mold and fungi can grow on damp surfaces within 24 to 48 hours and agree to clean including personal property, as soon as reasonably possible. Cleaning is done with common household bleach. Mixture is one part bleach to 10 parts water. Residents may add a little dish soap to the water mixture to cut any dirt and oil on the surface Residents are cleaning that may hold mildew, mold and fungi. Do not add other cleaning chemicals, especially ammonia. Dispose of any rags or sponges u sed to clean the mildew, mold and fungi in a sealed bag;

11. TO REPORT TO OWNER IN WRITING AND VERBALLY THE PRESENCE OF ANY MILDEW, MOLD AND FUNGI GROWTH on surfaces inside the Leased Premises;

12. To allow Owner immediate entry to the L eased Premises to inspect and make necessary repairs;

13. To use all reasonable care during periods of ra in, fog or other outside moisture presence to close all windows and other openings in the Leased Premises to prevent outdoor water from penetrating into the interior of the Leased Premises;

14. To clean and dry any visible condensation/ moisture on windows and window tracks, walls and other surfaces, including personal pr operty as soon as reasonably possible.

Condensation on windows indicates that fresh air is not being circulated in the Leased Premises. To prevent moisture buildup, open the windows and air out the Leased Premises for short periods of time to keep fresh air present. Excessive running of the heater will cause condensation in the Leased Premises;

15. To maximize the circulation of air by keepi ng furniture away from walls and out of corners; RESIDENTS FURTHER AGREE to indemnify and hold harmless Owner and Owner’s agents from any suits, actions, claims, losses, damages, and expenses (including reasonable attorneys’ fees and court costs) and any liability whatsoever that Owner and/or Owner’s agents may sustain or incur as a result of Residents’ failure to comply or perform with the obligations set forth above or as the result of the intentional or negligent action or failure to act on the part of Residents or of any ot her person living in, occupying, or using the Leased Premises, except if the liability is based upon a negligent act or omission of Owner or any agent or employee of Owner;
Residents hereby certify that Residents have read the MOISTURE DISCLOSURE STATEMENT, and have read and understood the contents of this ADDENDUM, and have received a duplicate copy.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

B-3

INTENDING TO BE BOUND, the parties hereto have executed this Addendum as of the day and year first above written.

Resident or Residents:
(all Residents must sign here)

Lessor:

Resident’s Signature
BERRYESSA AFFORDABLE HOUSING, L.P.,
a California limited partnership
By: [NAME OF BORROWER’S GENERAL PARTNER],
a California [TYPE OF ENTITY],
its general partner

Resident’s Name

By:

Name: [NAME]
Title: [TITLE]

Resident’s Unit No.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S1-1
SCHEDULE 1

SCHEDULE OF LITIGATION

[None]

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S2-1

SCHEDULE 2

SCHEDULE OF OBLIGATIONS AND MATERIAL CONTRACTS

1. Funding Loan Documents

2. Amended and Restated Agreement of Limited Partnership of the Borrower

3. Management Agreement

4. Development Agreement

5. HAP Contract

6. Ground Lease

7. Subordinate Debt Documents

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S3-1

SCHEDULE 3

SCHEDULE OF DEBT SERVICE PAYMENTS

[See Attached]

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S4-1
SCHEDULE 4

DEVELOPMENT AGREEMENT
[SEE ATTACHED]

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S5-1
SCHEDULE 5

FORM OF STABILIZATION CERTIFICATE
_________ ___, 20__
Deutsche Bank Securities Inc.

Deutsche Bank AG, New York Branch
1 Columbus Circle
New York, New York 10119

Re: Berryessa TOD Apartments, San José, California (the “Project Facilities”) Ladies and Gentlemen:

The undersigned, being the owner of the Project Facilities, hereby certifies to Deutsche Bank Securities Inc., as Funding Lender (the “Funding Lender”), that the date of Stabilization was ___________, 20___ and:

The undersigned hereby represents and warrants that:

1. The Improvements have been at least 90% occupied by qualifie d tenants meeting the requirements of the Funding Loan Documents in each of the prior three (3) consecutive months.

2. The ratio of Stabilized NOI in each of the prior three (3) consecutive months in the aggregate to maximum principal, interest, Governmental Lender Fee and Fiscal Agent fees payable in any month (other than the month in which the Maturity Date occurs) on the amount of the Series 2029A Borrower Note outstanding is 1.15 to 1.0.

3. No Event of Default or event which, with the passage of time or the giving of notice or both, would constitute an Event of Default has oc curred and be continuing under the Funding Loan Documents.

4. The amount on deposit in the Operating Reserve Fund is no less than the Operating Reserve Fund Requirement.

5. The Borrower has at all times been and is currently in compliance with all requirements set forth in the Land Use Restriction Agreement.

6. The Series 2029B Governmental Note has been prepaid in full in accordance with the provisions of Section 7(b)(vii) of the Series 2029B Borrower Note.

7. [The Series 2029A Governmental Note has been prepaid in part to the extent required by the Funding Lender in accordance with the provisions of Section 7(b)(iii) of the Series 2029A Borrower Note.][Only if applicable]

8. The Borrower has deposited $[TBD] into the Tax and Insurance Escrow Fund, as required by Section 8.2(a) of the Borrower Loan Agreement.

9. Stabilization has occurred.
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S5-2

10. Attached hereto is showing the calculation of Stabilization.

Capitalized terms used herein and not defined sh all have the meanings ascribed thereto in the Funding Loan Agreement dated as of [April 1], 20__, among the Funding Lender, the Fiscal Agent and the City of San José.

By: _________________________________
Name: James P. Silverwood
Title: Manager

By: CFAH Housing LLC,
a California limited liability company,
its Managing General Partner
By: Compass for Affordable Housing,
a California nonprofit public benefit corporation,
its Manager

By: _________________________________
Name: Robin Martinez
Title: Executive Director
Accepted and agreed to by:

DEUTSCHE BANK SECURITIES INC.,
as Funding Lender
By:

Name:

Title:

By:

Name:

Title:
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S5-3
Stabilization Spreadsheet
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S6-1
SCHEDULE 6

ANNUAL EXPENSES

[to be provided by DB]

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-1
SCHEDULE 7

INSURANCE REQUIREMENTS
The Project Facilities must be continuously covered by acceptable property insurance policies meeting the minimum requirements described below. This is a general outline of the insura nce coverages required by the Funding Lender, additional coverage may be required at the Funding Lender’s discretion.

The named insured in each policy must be the Borrower.

All policies must be written on a per occurrence basis except for boiler and machinery which may be written on a per-accident basis. Each policy must have a ca ncellation provision requiring the carrier to notify the Fiscal Agent, the Funding Lender, and the Servicer at least 30 days in advance of any policy reduction or cancellation for any reason.

Use of Acord forms 28, 27 or other form are accep table as temporary evidence of coverage provided the form states “This is evidence that in surance as identified below has been issued, is in force, and conveys all the rights and privileges afforded under the polic y” and uses a cancellation clause section “Should the policy be terminated, the company will give the additional interest identified below 30 days written notice, and will send notification of any changes to the policy th at would affect that interest, in accordance with the policy provisions or as required by law” Use of an Acord form stating “…matter of information only…” and “…the issuing insurer will endeavor to mail notice…” are unacceptable.

Blanket Insurance policies are acceptable but must comply with certa in requirements. Please see the Blanket Insurance section for details on page S13-15.

Terrorism coverage is required fo r property and general liability and excess/umbrella coverage unless the Funding Lender grants prior written waiver and mu st meet the same requirements under the property, general liability and excess/umbrella coverage requirements provided in the following sections.

Each Policy must be for a term of not less than one year.

Premium installment/direct bill arrangements are allo wed as long as the Servicer verifies receipt of payments. Third-party premium financing is permitted as long as the Funding Lender Representative reviews the financing agreement and verifies:
• The financing agreement has no negative impact on the Fiscal Agent, Funding Lender, Servicer or the Mortgage collateral, and
• Does not include any conditions that could prevent the Fiscal Agent, Funding Lender or Servicer from receiving the insurance proceeds associated with losses at the Property.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-2
Carrier Rating Requirement
Each insurance carrier providing property damage and/or liability insurance, whether admitted or non- admitted, must fall into one of the acceptable Financ ial Size Categories and meet the applicable minimum Financial Strength Rating for A.M. Best and, if the aggregate carrier exposure is greater than $25 million, the minimum rating from one of the following: Fitch, Inc. Standard & Poor’s Rating Services, or Moody’s Investors Service. Details are in the chart below:

Aggregate
Carrier
Exposure
Minimum A.M.

Best Financial
Strength Rating
AND Minimum A.M.

Best Financial
Size Category
AND Minimum Rating
from Fitch Inc.,
Standard & Poor’s
Rating Services, or
Moody’s
Less than $5
million
A- AND VII N/A Not applicable
Greater than $5
million &
Less than $25
million
A- AND VIII N/A Not applicable
Greater than $25
million
A- AND IX AND A- or its equivalent
by Fitch Inc.

A- or its equivalent
by Standard &
Poor’s Ratings
Services
A3 or its equivalent
by Moody’s
Investors Service
Inc.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-3
Standard insurance carrier rating requirements and minimum financial size categories are based on the aggregate carrier exposure, which is defined in the chart below.

Aggregate Carrier Exposure (for each individual carrier) Property Damage (“All Risk”) Insurance
What’s Required? “All Risk” or Cause of Loss-Special Form which includes an agreed value clause or no-coinsurance provision and inflation guard endorsement (where available).

When Does it Apply? All property types.

Maximum Deductible Replacement Cost Maximum Deductible* Less than $10 million $50,000
Equal to or greater than $10 million $75,000
Maximum Deductible
for Blanket Insurance
Aggregate Replacement Cost of the
covered properties
Maximum Per Occurrence
Deductible*
Equal to or less than $5 million $50,000
Greater than $5 million but less than
$7.5 million
$75,000

Greater than $7.5 million One percent of the aggregate
Replacement Cost of the covered
properties, to a maximum
deductible of $250,000
Insurance Type
Property damage
insurance
Specific Insurance or policy for
one property
Required building coverage limits +
required Business Income/Rental Value
Insurance
Blanket Insurance or master
program from one carrier
Blanket Insurance or master program
limi
t
An individual policy, Blanket
Insurance or master program with
more than one carrier
participating with layered limits
Total limit provided by the carrier in all
layers in which the carrier participates
Liability Insurance Specific Insurance or policy for
one Property
Total aggregate limits (general liability
+ excess/umbrella)
Liability insurance for multiple
properties, or master program
from one carrie
r
Total aggregate limits (general liability
+ excess/umbrella)
An individual policy, liability
insurance policy for multiple
properties or master program with
more than one carrier
participating with layered limits
Total limit provided by the carrier in all
layers in which the carrier participates
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-4
Amount of Coverage 100% Replacement cost coverage. Replacement cost must be certified annually. The most common resources to determine the estimated replacement cost of the property may include one of the following resources:

Insurance Company-the replacement cost estimate provided by the insurance company that has underwritten or will underwrite the property damage insurance.

Appraiser-a qualified commercial real estate appraiser experienced in the market
Contractor-reputable commercial contractor with experience constructing and/or reconstructing properties in the area similar for the Project Facilities Third Party Vendor-a third party vendor that specializes in replacement cost calculations or publishes data used for this purpose

Any claim checks are required to list Fiscal Agent as payee c/o the Funding Lender

* A higher deductible may be available if certain qualifications are met. Contact the Funding Lender for list of criteria.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-5
Boiler and Machinery Insurance
What’s Required? Boiler and Machinery Insurance
When Does it Apply? Properties with a central HVAC system where steam boilers and/or other pressurized systems are in operation and are regulated by the State where the property is located. The insura nce must cover loss or damage from explosion of steam boilers, pressure vessels and/or other steam equipment now or installed at a later date.

Amount of Coverage Replacement cost of the building housing the central HVAC system, including the replacement cost of th e central HVAC system. If coverage is provided by a different carrier than the property damage policy a joint loss agreement is required by both policies.

Maximum Deductible
Replacement Cost of the Property Maximum per occurrence deductible
Less than $10 million
Equal to or greater than $10 million
$50,000
$75,000
Maximum Deductible for
Blanket Insurance
Aggregate Replacement Cost of the
covered properties
Maximum per occurrence
deductible
Equal to or less than $5 million
Greater than $5 million but less than
$7.5 million
Greater than $7.5 million
$50,000
$75,000
One percent of the aggregate
Replacement Cost of the
covered properties to a
maximum deductible of
$250,000

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-6
Business Income/Rent Loss Coverage
What’s Required?
Business Income/Rental Value Insuran ce, if the business income/rental value insurance is not included in the primary or other property damage policy (for example, it may not be incl uded in the coverage provided by a flood, earthquake, or windpool insurance policy), a separate policy must be obtained to include business income/rental value for such covered losses.

When Does it Apply? All property types.

Amount of Coverage UPB (unpaid principal balance)
and number of stories
Minimum number of months of
anticipated gross income
Mortgages with improvements of 5
stories or more above grade,
regardless of UPB
18 Mortgages with a UPB of $50
million or greater 18
All other mortgages 12
Extended Period of
Indemnity required
UPB and number of stories Minimum extended period of
indemnity
Mortgages with improvements of 5
stories or more above grade,
regardless of the UPB
90 days
All other mortgages with a UPB of
$25 million or greater 90 days
All other mortgages None required
Maximum Deductible 72 hours

Earthquake Insurance
What’s Required? Earthquake Insurance
When Does it Apply? Project Facilities located in a seismic zone 3 or 4 with a PML of 20% or greater.

Amount of Coverage See section regarding Earth quake Insurance page S13-20.

Maximum Deductible See section regarding Earthquake Insurance page S13-20. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-7
Flood Insurance
What’s Required? Flood Insurance
When Does it Apply? Flood insurance is required for Project Facilities having improvements located in an area identified as a Special Flood Hazard Area (SFHA).

Amount of Coverage 100% of the full replacement cost. If 100% of the full replacement cost exceeds NFIP coverage limit, additional flood insurance from another insurer is required. Business Inco me/Rental Value Insurance is also required.

Deductible for NFIP
coverage
Must comply with NFIP deductible for the type of improvement insured.

Maximum Deductible for
private flood insurance
Property replacement cost
Less than $10 million
Equal to or greater than $10 million
Maximum deductible
$50,000
$75,000
Maximum Deductible for
flood insurance under
Blanket Insurance
Aggregate Replacement Cost of the
covered properties
Equal to or less than $5 million
Greater than $5 million but less than
$7.5 million
Greater than $7.5 million
Maximum per occurrence
deductible
$50,000
$75,000
One percent of the aggregate
Replacement Cost of the covered
properties to a maximum
deductible of $250,000

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-8
Ordinance and Law Coverage
What’s Required? Ordinance and Law Coverage
When Does it Apply? All property types that represent nonconforming uses under current building, zoning, or land use laws or ordinances.

Amount of Coverage

1. Loss of Undamaged Portion of the Building-full replacement cost less the damage threshold of the local building ordinance.

If threshold is not available, 100% of the full replacement cost of the Project Facilities.

2. Demolition Cost-estimated full demolition expense of the single largest building, or 10% of full replacement cost.

3. Increased Cost of Construc tion-no less than 10% of full replacement cost.

Loss of Income
Business Interruption/Rent Loss must be endorsed to cover income/rent loss arising out of the increased time necessary to repair or rebuild.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S9-9
Windstorm Coverage
What’s Required? If the “All Risk” property dama ge insurance excludes wind-related events, a separate windstorm in surance policy must be obtained meeting the same requirements as th e Property Damage (“All Risk”) Insurance. If coverage is provided by a state windpool policy, see State Windpool Policy Requirements on page S13-19.

When Does it Apply? Required for all properties.

Amount of Coverage 100% of replacement cost, either not contain a coinsurance clause or contain a coinsurance clause that is offset or suspended by an Agreed Amount endorsement. If an Agreed Amount endorsement is used the Agreed Amount must be equal to replacement cost.

For properties in Florida and for all other East Coast and Gulf Coast Properties located within 50 miles of the coast, the maximum deductible per occurrence is 5 percent of the Replacement Cost of the covered properties.

Maximum Deductible Property replacement cost
Less than $10 million
Equal to or greater than $10 million

Maximum Deductible
$50,000
$75,000
Maximum Deductible for
Blanket Insurance

Aggregate Replacement Cost of the
covered properties
Equal to or less than $5 million
Greater than $5 million but less than $7.5
million
Greater than $7.5 million
Maximum per
occurrence deductible
$50,000
$75,000
One percent of the
aggregate Replacement
Cost of the covered
properties to a maximum
deductible of $250,000

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-10
Commercial Liability Insurance
What’s Required? Minimum coverage of $1 million per occurrence and $2 million in the annual aggregate in addition to excess/umbrella coverage as indicated below.

When Does it Apply? All property types. If a property contains any special hazard that is excluded from the CGL or other liability policy, such as garage operation or swimming pool, supple mental coverage for the hazard must be obtained.

Maximum Deductible The maximum deductible or SIR or combined deductible and SIR for all forms of individual liability insurance is $35,000 per occurrence.

The maximum deductible or SIR or combined deductible and SIR for multiple properties is $50,000 per occurrence.

Amount of Coverage in the
annual aggregate for one
property
Number of stories UPB Minimum per
occurrence and
annual aggregate
1 to 3

1 to 7
8 or more
Equal to or less than
$3 million
Greater than $3 million
Greater than $3 million
None required

$1 million per
story
$8 million
Amount of Coverage in the
annual aggregate for more than
one property
Number of properties
covered by the policy
2 to 3
2 to 3
4 to 5
4 to 5
6 to 10
6 to 10
11 to 19
11 to 19
20 or more
20 or more
Maximum number of
stories in any of the
covered properties
3 Greater than 3
3 Greater than 3
3 Greater than 3
3 Greater than 3
3 Greater than 3
Minimum
umbrella or
excess liability
in Millions
$3
$10
$5
$12
$7
$15
$9
$20
$15
$30
[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-11
Liability Insurance Requirements for Seniors Housing Properties What’s Required? Minimum coverage of $1 m illion per occurrence and $2 million in the annual aggregate in addition to excess/umbrella coverage as indicated below.

Policy may be written on a “claims made” or “an occurrence- based” policy. If coverage is changed from a “claims made” policy to an “occurrence- based” policy the Borrower must obtain the prior approval of the Funding Lender.

Assisted Living Residences,
Properties with Assisted Living
Care, and Properties that provide
Skilled Nursing, Alzheimer’s Disease
or Dementia Care
Number of licensed beds
Less than or equal to 100
beds
Greater than 100 but less
than or equal to 500
Greater than 500 but less
than or equal to 1,000
Greater than 1,000
Minimum per
claim/occurrence
$1 million
$5 million

$10 million

$25 million

Maximum Deductible Maximum $100,000 deductible or Self Insured Retention.

Additional Insured
Fiscal Agent is not to be named as an additional insured on professional liability insurance policies.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-12
Vehicle Liability Insurance
When Does it Apply?
If the Borrower owns, leases, hires, rents, borrows, uses or has another use on its behalf a vehicle in conjunction with the operation of the Project Facilities.

Amount of Coverage $1 million per accident.

Cooperative Fidelity Bond/Crime Insurance
What’s Required Maintain fidelity bond/crime insurance coverage for the Co-op’s employees, officers and board members.

When Does it Apply? Cooperative Corporations.

Amount of Coverage Two times the monthly gross association fee plus reserves or Six times the monthly gross association fee.

Maximum Deductible $25,000

Cooperative Directors and Officers Liability Insurance
What’s Required Maintain directors’ and officers’ liability insurance.

When Does it Apply? Cooperative Corporations.

Amount of Coverage $1 million per occurrence.

Maximum Deductible $25,000

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-13
Builder’s Risk Insurance
What’s Required? Builder’s Risk Insurance
When Does it Apply? Required for any additions, alte rnations, rehabilitations, new construction or repairs to the Project Facilities during any construction. Amount equal to 100% of contracts and materials.

Requirement may be met with either an extension of the standard property damage insurance policy or a separate Builder’s Risk policy.

Amount of coverage Coverage must be at least 100% of the sum of the contract or contracts and all materials to complete the work. Policy must cover fire and other perils within the scope of a policy known as a “Causes of Loss-Special Form” or “All Risk” policy.

Maximum Deductible Replacement Cost of the
property
Less than $10 million
Equal to or greater than $10
million
Maximum per occurrence
deductible
$50,000
$75,000
Maximum Deductible for
Blanket Insurance
Aggregate Replacement Cost
of the covered properties
Equal to or less than $ 5 million
Greater than $5 million but less
than $7.5 million
Greater than $7.5 million
Maximum per occurrence
deductible
$50,000
$75,000
One percent of the aggregate
Replacement Cost of the
covered properties to a
maximum deductible of
$250,000

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-14
Localized Perils Insurance
What’s Required? Sinkhole, mine subsidence, volcanic eruption or avalanche insurance When Does it Apply? For a property located in an area prone to localized perils, such as sinkhole, mine subsidence, volcanic eruption and avalanche. Sinkholes are particularly common in Florida, mine subsidence may occur in any location where there is, or has been, subterranean mining, but is particularly common in Pennsylvania, Ohio, Illinois and Colorado.

Amount of Coverage 100% Replacement Cost of the buildi ngs affected by the localized peril Maximum Deductible Replacement Cost of the
property
Less than $10 million
Equal to or Greater than $10
million
Maximum per occurrence
deductible
$50,000
$75,000
Maximum Deductible for
Blanket Insurance
Aggregate Replacement Cost
of the covered properties
Equal to or less than $ 5 million
Greater than $5 million but
equal to or less than $7.5
million
Greater than $7.5 million
Maximum per occurrence
deductible

$50,000
$75,000
One percent of the aggregate
Replacement Cost of the covered
properties to a maximum deductible
of $250,000

Sewer and Drain Insurance
What’s Required? Sewer and drain backup insurance
When Does it Apply? If the Project Facilities are prone to periodic sewer or drain back-ups caused by ground water, public or private water systems or public sewers external to the Project Facilities.

Amount of Coverage and
Deductible
Must be consistent with coverage obtained by other lenders in the area.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-15
Blanket Insurance Guidelines
Blanket Insurance with related Borrowers
The Borrower shall submit to the Funding Lender and the Servicer a statement of values from, prepared by the Borrower or the insurance company issuing the policy. Such a statement of values should include:

The replacement cost and address of each covered property Complete street address for covered properties
A list of any properties that are c ontiguous to other covered properties The number of stories in each covered property
Other data relevant to the coverage limits in the blanket insurance policy In assessing the adequacy of the coverage, the Funding Lender shall consider all of the following guidelines to determine if the property damage insurance c overage provided by the bla nket insurance policy is adequate for the subject property and the other properties covered by the blanket insurance policy.

The guidelines below apply to all required property da maged overage that is be ing provided by a blanket insurance policy.

The per occurrence limit of the blanket insurance policy must be no less than the largest replacement cost exposure covered by the limit of the blanket insurance policy.

The coverage provided by the blanket insurance policy should increase if the Funding Lender believes additional coverage is appropriate for the circumstances.

In addition, the Borrower may also obtain coverage for the following types of insurance under a limit provided by the blanket insurance policy.

Business Income/Rental value insurance
Boiler and machinery insurance
Ordinance and law insurance
The coverage under these insurance policies must meet the requirements of the other applicable sections.

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-16
Blanket Insurance with unrelated Borrowers
Some blanket insurance or master program propert y damage insurance may be purchased by unrelated borrower, borrower principals, or entities covering unre lated properties. This includes blanket insurance policies that are written for properties and borrowers, borrower principals or entities that are only related through the relationship with the property management company. This is perceived as additional risk in the blanket insurance policies for these properties and requires the Funding Lender to carefully analyze these policies to determine if the Project Facilities are adequately insured.

We must obtain the following inform ation to help in assessing the ade quacy of the property damage insurance provided by this type of blanket insurance policy for unrelated entities:

Name and address of the insurance company or companies
Carrier ratings of the insurance company or companies
The per occurrence limit and any sublimits (plus coverage by layer, if applicable) Address and replacement cost of the Project Facilities
Address and replacement cost of other properties controlled by the same borrower or borrower principal that are insured under this policy
City, state, zip code and replacement cost of all other properties that are covered under the policy
Number of stories in each property
Per occurrence limit/cap for the policy
Deductibles
Number of borrowers, borrower principals and entities insured [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-17
State Windpool Policy Requirements
Windstorm insurance though a State Windpool
The following requirements in 1, 2 or 3 below must be met if windstorm coverage can only be obtained from a State Windpool:

1. If the policy issued by the State Windpool do es not contain a coinsurance clause, the policy must be written with replacement cost covera ge in an amount equal to 100% replacement of the replacement cost of the insurable improvements without any deduction for depreciation.

2. If the policy issued by the State Windpool cont ains a coinsurance clause that is offset or suspended by an agreed amount provision:

3. If the policy issued by the State Windpool contains a coinsurance clause that is not offset or suspended by an agreed amount endorsement provision, then all of the following are required:

The policy must be written with replacement co st coverage in an amount equal to 100% of the replacement cost of the insurable improvements without any deduction for depreciation The replacement cost estimate must meet the requirements for the guide The replacement cost estimate must be da ted within 12 months of the request for coinsurance
The policy must contain a coinsurance clause less than or equal to 90% (such as 70% or 80%)
In addition, the guarantor must sign an additional guaranty of any losses incurred by the Servicer associated with the Borrower’s failure to maintain the required windstorm coverage.

If business income/rental value insurance is not included in the State Windpool insurance policy, a separate business income/rental value insurance policy for windstorm coverage must be obtained. [DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

S7-18
Earthquake Insurance Requirements
Earthquake Insurance
If the Project Facilities are located in a Seismic Risk Zone 3 or 4 and the PML is greater than 20% but less than or equal to 40%, earthquake insurance is re quired. For Project Facilities for which earthquake insurance is required, the coverage must be the greater of $1 million or 150% of the difference between the projected loss for the Project Facilities using the actual PML and the projected loss with a 20% PML. A reserve account may be required for certain deductibles based on the Borrower’s equity and the maximum deductible.

The Borrower will be required to obtain separate business income/rental value insurance and ordinance and law coverage if earthquake insurance does not provide that coverage for earthquake damage.

For example:

Replacement cost for the property=$30 million
Actual PML=30%
Minimum required earthquake insurance=$4.5 million
Replacement Cost X
Actual PML
$30 million X 30% = $9 million
Replacement Cost X
20%
$30 million X 20% = $6 million
$3 million
Difference X 150% $3 million X 150% = $4.5 million

Maximum Deductibles
Borrower Equity Maximum Deductible
(a reserve account may be
required for certain
deductibles)
Reserve Account
Equal to or less than 30% 5% of coverage Not required
Equal to or less than 30% 10% of coverage Required for 5% of the coverage amount Equal to or less than 30% 15% of coverage Required for 10% of the coverage amount Greater than 30% 15% of coverage Not required

[DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.]

San Jose City CouncilApril 14, 2026

San Jose City Council
April 14, 2026