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DEVELOPER: Kottinger Gardens Phase 2 Associates, L P 303 Vintage Park Dnve, Suite 250 Foster City, CA 94404 Attention Matthew O. Franklin, President With a copy to Gubb & Barshay, LLP 505 14th Street, Suite 450 Oakland, CA 94612 Attention Evan Gross And with a copy to: MUFG Union Bank, N A 200 Pnngle Avenue, Suite 355 Walnut Creek, CA 94596 Attention: CDF Head 12 4 Attorneys' Fees. If either Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and disbursements 12 5 Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in wnting and executed by the waiving Party An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in wnting and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties. 12 6 Binding on Successors Subject to the restnctions on Transfers set forth in Article VIII, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and assigns Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement or under law 12 7 Survival. All representations made by Developer hereunder and Developer's obligations pursuant to Sections 5.11, 5.14, 5.15, 6 3, 7 2, 11.1 and 12 1 shall survive the expiration or termination of this Agreement 12.8 Headings, Interpretation, Statutory References The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had OAK#4822-6539-6013 v5 38