ATTACHMENT 3 FORM OF GROUND LEASE

Transcription

1 ATTACHMENT 3 FORM OF GROUND LEASE SMRH: OLD:

2 SMRH Draft 01/23/17 GROUND LEASE between THE CITY COLLEGE OF SAN FRANCISCO, as landlord, and 33 GOUGH, LLC, as tenant Dated as of October 17, 2016, 2017 SMRH: OLD:

3 SMRH Draft 01/23/17 TABLE OF CONTENTS Page SECTION 1. PREMISES; TERM Premises Term Definitions...4 SECTION 2. RENT Tenant s Covenant to Pay Rent Base Rent Percentage Rent Participations Rent Manner of Payment of Rent No Abatement or Setoff; Rent Credit Interest on Delinquent Rent Late Charges Additional Rent Net Lease Lease Buyout Right Failure to Exercise Buyout Rights SECTION 3. USES Permitted Uses Within Premises Prohibited Uses Name California Civil Code Section 1938 Disclosure Temporary Use Authorization SECTION 4. TAXES AND ASSESSMENTS Payment of Possessory Interest Taxes and Other Impositions CCSF s Right to Pay SECTION 5. CONTESTS Right of Tenant to Contest Impositions and Liens CCSF s Right to Contest Impositions SECTION 6. COMPLIANCE WITH LAWS Compliance with Laws and Other Requirements Regulatory Approvals SECTION 7. TENANT S MANAGEMENT AND OPERATING COVENANTS Covenants SECTION 8. REPAIR AND MAINTENANCE SMRH: i- OLD:

4 8.1 Covenants to Repair and Maintain the Premises Capital Reserve Account SECTION 9. IMPROVEMENTS Existing Improvements Initial Improvements Title to Improvements SECTION 10. SUBSEQUENT CONSTRUCTION CCSF s Right to Approve Subsequent Improvement Construction Minor Alterations Tenant Occupancy Improvements Construction Documents in Connection with Subsequent Construction CCSF s Approval of Changes to Construction Documents Construction Schedule Construction Safety Matters As-Built Plans and Specifications SECTION 11. UTILITY SERVICES Utility Services SECTION 12. DAMAGE OR DESTRUCTION General; Notice; Waiver Rent after Damage or Destruction Tenant s Obligation to Restore Major Damage and Destruction or Uninsured Casualty Effect of Termination Distribution Upon Lease Termination Use of Insurance Proceeds No Release of Tenant s Obligations Arbitration of Disputes SECTION 13. CONDEMNATION General; Notice; Waiver Total Condemnation Substantial Condemnation, Partial Condemnation Awards Temporary Condemnation Relocation Benefits, Personal Property Reduction in Base Rent SECTION 14. LIENS Liens Mechanics Liens SMRH Draft 01/23/17 SMRH: ii- OLD:

5 SECTION 15. ASSIGNMENT AND SUBLETTING Assignment Assignment of Rents Subletting by Tenant SECTION 16. INDEMNIFICATION OF CCSF Indemnification of CCSF Immediate Obligation to Defend Not Limited by Insurance Survival Other Obligations Defense Release of Claims Against CCSF SECTION 17. INSURANCE Property and Liability Coverage CCSF Entitled to Participate Release and Waiver SECTION 18. HAZARDOUS MATERIALS Hazardous Materials Compliance Hazardous Materials Indemnity SECTION 19. DELAY DUE TO FORCE MAJEURE Delay Due to Force Majeure SECTION 20. CCSF S RIGHT TO PERFORM TENANT S COVENANTS CCSF May Perform in Emergency CCSF May Perform Following Tenant s Failure to Perform Tenant s Obligation to Reimburse CCSF SECTION 21. EVENTS OF DEFAULT; TERMINATION Events of Default Special Provisions Concerning Mortgagees and Events of Default SECTION 22. REMEDIES CCSF s Remedies Generally Right to Keep Lease in Effect Right to Terminate Lease Continuation of Subleases and Other Agreements SECTION 23. EQUITABLE RELIEF CCSF S Equitable Relief Nonliability of Tenant s Members, Partners, Shareholders, Directors, Officers and Employees SECTION 24. NO WAIVER SMRH Draft 01/23/17 SMRH: iii- OLD:

6 24.1 No Waiver by CCSF or Tenant No Accord or Satisfaction SECTION 25. DEFAULT BY CCSF; TENANT S REMEDIES Default by CCSF; Tenant s Exclusive Remedies SECTION 26. TENANT S RECOURSE AGAINST CCSF No Recourse Beyond Value of Property Except as Specified No Recourse Against Specified Persons Arbitration of Certain Matters SECTION 27. LIMITATIONS ON LIABILITY Waiver of Consequential Damages Limitation on Parties Liability Upon Transfer SECTION 28. ESTOPPEL CERTIFICATES BY TENANT Estoppel Certificate by Tenant SECTION 29. ESTOPPEL CERTIFICATES BY CCSF Estoppel Certificate by CCSF SECTION 30. APPROVALS BY CCSF Fees for Review SECTION 31. NO MERGER OF TITLE No Merger of Title SECTION 32. QUIET ENJOYMENT Quiet Enjoyment SECTION 33. SURRENDER OF PREMISES End of Lease Term SECTION 34. HOLD OVER Hold Over SECTION 35. NOTICES Notices Form and Effect of Notice SECTION 36. INSPECTION OF PREMISES BY CCSF Entry Exhibit for Lease Notice, Right to Accompany SECTION 37. MORTGAGES No Mortgage Except as Set Forth Herein SMRH Draft 01/23/17 SMRH: iv- OLD:

7 37.2 Leasehold Liens Notice of Liens Purpose of Mortgage Interest Covered by Mortgage Institutional Lender; Other Permitted Mortgagees Rights Subject to Lease Required Provisions of Any Mortgage Notices to Mortgagee Mortgagee s Right to Cure Assignment by Mortgagee Transfer of Mortgage Appointment of Receiver [Intentionally Deleted]...78 SECTION 38. NO JOINT VENTURE No Joint Venture SECTION 39. ECONOMIC ACCESS End of Term SECTION 40. REPRESENTATIONS AND WARRANTIES Representations and Warranties of Tenant SECTION 41. SPECIAL PROVISIONS Mitigation Measures Waiver of Relocation Assistance Rights Tenant s Obligations SECTION 42. GENERAL Time of Performance Interpretation of Agreement Successors and Assigns No Third Party Beneficiaries Real Estate Commissions Counterparts Entire Agreement Amendment Governing Law; Selection of Forum Recordation Extensions by CCSF Further Assurances Attorneys Fees Effective Date Severability Joint and Several Liability Non Discrimination SMRH Draft 01/23/17 SMRH: v- OLD:

8 SECTION 43. DEFINITION OF CERTAIN TERMS SMRH Draft 01/23/17 SMRH: vi- OLD:

9 SMRH Draft 01/23/17 LIST OF LEASE EXHIBITS Exhibit EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G Description Description of Property Site Plan Permitted Title Exceptions Scope of Development Form of Ground Lessor Estoppel Certificate Form of Memorandum of Ground Lease Standard Discretionary Regulatory Conditions SMRH: vii- OLD: \

10 GROUND LEASE THIS GROUND LEASE (this Lease ), dated for reference purposes as of, 2016, is by and between (i) the CITY COLLEGE OF SAN FRANCISCO ( CCSF ), as landlord, and (ii) 33 GOUGH LLC, a Delaware limited liability company (collectively, Tenant ), as tenant. THIS LEASE IS MADE WITH REFERENCE TO THE FOLLOWING FACTS AND CIRCUMSTANCES: A. CCSF owns in fee all of that certain real property comprising of approximately 45,600 square feet of land located at 33 Gough Street, and improved with an existing structure consisting of approximately 49,000 square feet, in the City and County of San Francisco ( City ), California. The land that is the subject of this Lease is described on the attached Exhibit A and shown on the attached Exhibit B (the Site ). B. On or about December 12, 2014, CCSF authorized the issuance of a Request for Proposals ( RFP ) regarding redevelopment and reuse of the Site. Thereafter, CCSF received several responses to the RFP, including that of Tenant. C. After an extensive evaluation process CCSF has determined that Tenant s response to the RFP warranted entering into exclusive negotiations with Tenant. D. CCSF and Tenant have entered into that certain Exclusive Negotiating Agreement dated as of December 15, 2015 (as the same may be amended from time to time, the ENA ) pursuant to which Tenant and CCSF agreed to negotiate documents for the long-term ground lease and redevelopment of the Site by Tenant. E. CCSF and Tenant subsequently entered into that certain Lease Disposition and Development Agreement dated as of, 2016 (as the same may be amended from time to time, the LDDA ) for the long term Ground Lease of the Property to Tenant andfor Interim Leasing (as defined herein) and for the Project. The term Project means the development of a mixed-use building on the Site consisting of street level retail and multi-family residential units or for the rehabilitation of the existing improvements(other than for Interim Leasing) of the Existing Improvements on the Property, all as further described in Exhibit D hereto (the Project ). F. Pursuant to the LDDA, and after approval hereof by CCSF, the parties now wish to enter into this Lease, upon all of the terms and conditions hereof. ACCORDINGLY, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, CCSF and Tenant hereby agree as follows: SECTION 1. PREMISES; TERM 1.1 Premises. (a) Lease of Premises; Description. For the Rent and subject to the terms and conditions of this Lease, CCSF hereby leases to Tenant, and Tenant hereby leases from CCSF, the real property in the City and County of San Francisco, California, SMRH: OLD:

11 as more particularly described in Exhibit A attached hereto (the Property ). The Property contains approximately 45,600 square feet of land and all other structures and substructures affixed thereto, including, without limitation, the Existing Improvements, together with all rights, privileges and licenses appurtenant to the Property and owned by CCSF. The Property is shown generally on the site plan attached hereto as Exhibit B. The Property, including all of the Existing Improvements and all other structures, substructures and improvements hereafter located on the Property, are referred to in this Lease as the Premises. (b) Permitted Title Exceptions. The interests granted by CCSF to Tenant pursuant to Sections 1.1(a) are subject to (i) the matters reflected in Exhibit C (the Permitted Title Exceptions ) and (ii) such other matters as Tenant shall consent to in writing or cause or suffer to arise subject to the terms and conditions of this Lease. (c) Reservation of Oil, Gas and Mineral Rights. CCSF reserves to itself the sole and exclusive right to prospect for, drill for, produce, and take any oil, gas, or other hydrocarbon or mineral substances and accompanying fluids, including all geothermal resources from the Property, from below the depth of five hundred (500) feet from the surface of the Property, including the rights to slant drill, maintain subsurface pressures, and utilize subsurface storage space for natural substances. This reservation does not include the right of entry from surface access, nor any other right not herein expressly reserved. CCSF covenants that Tenant shall not be disturbed in its quiet enjoyment and peaceful use of the Premises by the aforementioned drilling and production activities, and CCSF agrees to indemnify Tenant and hold it harmless for any damages proximately caused by such activities. (d) AS-IS WITH ALL FAULTS. TENANT AGREES THAT THE PREMISES ARE BEING LEASED BY CCSF, AND ARE HEREBY ACCEPTED BY TENANT, IN THEIR EXISTING STATE AND CONDITION, AS IS, WITH ALL FAULTS. TENANT ACKNOWLEDGES AND AGREES THAT NEITHER CCSF NOR ANY OF THE OTHER INDEMNIFIED PARTIES, NOR ANY AGENT OF ANY OF THEM, HAS MADE, AND THERE IS HEREBY DISCLAIMED, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO THE CONDITION OF THE PREMISES, THE SUITABILITY OR FITNESS OF THE PREMISES OR ANY APPURTENANCES THERETO FOR THE DEVELOPMENT, USE OR OPERATION OF THE PROJECT, THE COMPLIANCE OF THE PREMISES OR THE PROJECT WITH ANY LAWS, ANY MATTER AFFECTING THE USE, VALUE, OCCUPANCY OR ENJOYMENT OF THE PREMISES OR WITH RESPECT TO ANY OTHER MATTER PERTAINING TO THE PREMISES OR THE PROJECT OR ANY APPURTENANCES TO THE PREMISES. As part of its agreement to accept the Premises in its As Is With All Faults condition, effective upon delivery of the Premises, Tenant, shall be deemed to waive any right to recover from, and forever release, acquit and discharge, CCSF and their Agents of and from any and all Losses, whether direct or indirect, known or unknown, foreseen or unforeseen, that the Tenant may now have or that may arise an account of or in any way be connected with (i) the physical, geotechnical or environmental condition of the Premises, including, without limitation, any SMRH: OLD:

12 Hazardous Materials in, on, under, above or about the Premises (including, but not limited to, soils and groundwater conditions), and (ii) any Laws applicable thereto, including without limitation, Hazardous Materials Laws, or Laws pertaining to historic rehabilitation or preservation. In connection with the foregoing release and the release set forth in Section 16.7 below, the Tenant acknowledges that it is familiar with Section 1542 of the California Civil Code, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Tenant agrees that the release contemplated by this Section includes unknown claims. Accordingly, Tenant hereby waives the benefits of Civil Code Section 1542, or under any other statute or common law principle of similar effect, in connection with the releases contained in this Section. Notwithstanding anything to the contrary in this Lease, the foregoing release shall survive the expiration or any earlier termination of this Lease. 1.2 Term. Tenant s Initials: (a) Initial Term. The Term of this Lease shall commence on the Effective Date hereof (the Commencement Date ) and shall expire on the date that is seventy-five (75) years thereafter (the Initial Term ), unless extended or earlier terminated in accordance with the terms of this Lease. If requested by either party, the parties shall execute and cause to be recorded in the then applicable recording office of the City and County of San Francisco, California a memorandum stating the commencement and expiration dates of the Initial Term, provided that failure of the parties to execute such memorandum shall not delay, modify or be a condition to the Commencement Date or affect the rights or obligations of the parties under this Lease. (b) Option to Extend. Tenant shall have one (1) option to extend the Term of this Lease for an additional period (the Renewal Period ) of twenty-five (25) years upon all the terms and conditions hereof except Rent shall be determined as provided in Section 2.2(e) below. The foregoing option may be exercised by Tenant by notice in writing to CCSF given not less than one (1) calendar year or more than two (2) calendar years prior to the expiration date of the Initial Term and if not so exercised (time being of the essence) this option shall thereupon expire and be of no further force or effect. Upon exercise of this option, CCSF and Tenant shall prepare a notice thereof in recordable form and cause the same to be recorded in the then applicable recording office of the City and County of San Francisco, California. Notwithstanding anything to the contrary contained herein, Tenant's exercise of the option to extend the Term of the Lease as provided hereunder shall, if CCSF so elects in its absolute discretion, be ineffective in the event that there is a continuing Event of Default of Tenant under the Lease either at the time of SMRH: OLD:

13 delivery of written notice exercising such option or as of the commencement of the Renewal Period. (c) Meaning of Term. As used in this Lease, Term shall mean the Initial Term as provided in Section 1.2(a) above, together with the Renewal Period (to the extent exercised by Tenant), except as specifically otherwise used in this Lease. 1.3 Definitions. All initially capitalized terms used herein are defined in Section 43 or have the meanings given them when first defined. SECTION 2. RENT 2.1 Tenant s Covenant to Pay Rent. During the Term of this Lease, Tenant shall pay Rent for the Premises to CCSF at the times and in the manner provided in this Section Base Rent. (a) Pre-Construction Rent. (i) Commencing on the Rent Commencement Date and continuing until the Construction Commencement Date (the Pre-Construction Period ), Tenant shall pay to CCSF annual base rent in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) per year; provided, however, that, unless CCSF terminates this Lease pursuant to Section 2.12 hereof, upon the date Tenant obtains the Final Discretionary Project Approvals, Pre-Construction Rent shall be increased to Five Hundred Thousand Dollars ($500,000) per year. Notwithstanding the foregoing, if litigation challenging such Final Discretionary Project Approvals is initiated prior to the Project Approval Deadline, then the increase to $500,000 per year that would otherwise apply during the period from the commencement of such litigation and the Project Approval Deadline shall be tolled until the first to occur of the resolution of such litigation or the Project Approval Deadline. Notwithstanding the foregoing, if during the Pre-Construction Period Tenant pays CCSF the Five Million Dollar ($5,000,000) Subsequent Payment (as defined in the LDDA), then the annual Base Rent from and after the date of such payment and continuing during the Pre-Construction Period shall be One Hundred Thousand Dollars ($100,000) or such higher amount as is provided in Section The total amount owing under this Section 2.2(a) shall be referred to as Pre- Construction Rent. The Pre-Construction Rent shall be payable by Tenant to CCSF without setoff, deduction, prior notice, or demand (except as otherwise provided in this Lease) in equal monthly installments on the first day of each month during the Pre- Construction Period. Pre-Construction Rent shall be prorated for any partial months at the beginning and end of the Pre-Construction Period based on the actual number of days in such month. (b) Construction Rent. Commencing on the earlier of (i) the Construction Loan Closing Date, or (ii) the Commencement of Construction (if construction will not be financed by the proceeds of a Construction Loan), and continuing SMRH: OLD:

14 until the Completion Date (the Construction Period ), Tenant shall pay to CCSF annual Base Rent in an amount equal to the greater of (x) Two Hundred Thousand and No/100 Dollars ($200,000.00) per year and (y) fifty percent (50%) of the Projected Percentage Rent. The total amount owing under this Section 2.2(b) shall be referred to as Construction Rent and Tenant shall, upon the occurrence of the first of the events described in clauses (i) and (ii) above, if it has not already done so, pay the Subsequent Payment to CCSF. The Construction Rent shall be payable by Tenant to CCSF without setoff, deduction, prior notice, or demand (except as otherwise provided in this Lease) in equal monthly installments on the first day of each month during the Construction Period. Construction Rent shall be prorated for any partial months at the beginning and end of the Construction Period based on the actual number of days in such month. (c) Initial Post-Construction Rent. Commencing on the Completion Date for the Project (the Post-Construction Date"), and continuing until the first anniversary of the Post-Construction Date (the Initial Post-Construction Period ), Tenant shall pay to CCSF annual base rent in an amount equal to the greater of (i) Four Hundred Thousand Dollars ($400,000) or (ii) eighty percent (80%) of the Projected Percentage Rent. The total amount owing under this Section 2.2(c) shall be referred to as Initial Post- Construction Rent, which amount shall in no event be decreased over the course of subsequent rent adjustments. The Initial Post-Construction Rent shall be payable by Tenant to CCSF without setoff, deduction, prior notice, or demand (except as otherwise provided in this Lease) in equal monthly installments on the first day of each month during the Initial Post-Construction Period. Initial Post-Construction Rent shall be prorated for any partial months at the beginning and end of the Initial Post-Construction Period based on the actual number of days in such month. (d) Subsequent Post-Construction Rent. (i) Subsequent Post-Construction Rent. Commencing on the first anniversary of the Post-Construction Date and continuing until the first Adjustment Date, Tenant shall pay to CCSF annual base rent in an amount equal to the Minimum Rent then in effect as the same shall be increased pursuant to the definition of Minimum Rent set forth in Section 43 hereof. (ii) Appraisal Adjustment. (1) Commencing on the first Appraisal Date and continuing on each Appraisal Date occurring thereafter until the expiration of the Term (as extended by the Renewal Period, if applicable), Minimum Rent shall be increased to an amount determined by using the capitalization rate utilized in or, if not expressly stated, imputed from the net operating income assumed in the appraisal obtained for the applicable Appraisal Date and multiplying it by fifteen percent (15%) of the Appraised Fee Value determined in accordance with Section 2.2(d)(ii)(2) below. Notwithstanding anything to the contrary contained herein, in no event shall the Minimum Rent, as adjusted as of each Appraisal Date, be less than the base rent in effect immediately preceding such Appraisal Date, as adjusted SMRH: OLD:

15 by the percentage increase, if any, in the Index from the date of the immediately preceding increase made as provided for in the definition of Minimum Rent pursuant to Section 43 through such Appraisal Date. (2) Whenever this Lease requires an appraisal of the Project to determine its Appraised Fee Value for purposes of calculating any component of Rent due hereunder, the Appraised Fee Value of the Project shall be determined in accordance with this Section 2.2(d)(ii)(2). No later than forty-five (45) days prior to each Appraisal Date, each Party shall separately designate to the other in writing an appraiser to determine the then-current Fair Market Value of the Project. Each appraiser designated shall be an independent MAI appraiser with experience in real estate activities, including at least twenty (20) years of experience in appraising properties similar to the Project in the City and County of San Francisco, California (the Qualifications ). The failure of either Party to appoint an appraiser meeting the foregoing Qualifications within the time allowed shall be deemed equivalent to appointing the appraiser appointed by the other Party, who shall then determine the then-current Fair Market Value of the Project which Fair Market Value shall thereafter be the Appraised Fee Value of the Project as of the applicable Appraisal Date. Within five (5) business days of their appointment, the two designated appraisers shall jointly designate a third appraiser with the foregoing Qualifications. Within thirty (30) days after their appointment, each of the two appointed appraisers shall submit to the third appraiser a sealed envelope containing such appointed appraiser's good faith determination of the then-current Fair Market Value of the Project; concurrently with such delivery, each such appraiser shall deliver a copy of his or her determination to the other appraiser. If the highest of the two determinations of the appraisers is no greater than one hundred and five percent (105%) of the lowest of the two such determinations, the determinations of the two appraisers shall be averaged and the result shall be the then-current Fair Market Value of the Project. If the highest of the two determinations of the appraisers is greater than one hundred and five percent (105%) of the lowest of the two such determinations, the third appraiser shall, within ten (10) days following receipt of such submissions, then determine which of the two appraisers' determinations most closely reflects the then-current Fair Market Value of the Project. The third appraiser shall have no rights to adjust, amend or otherwise alter the determinations made by the appraisers selected by the Parties, but must select one or the other of such appraisers' submissions. The determination by such third appraiser shall be final and binding upon the Parties. Said third appraiser shall, upon selecting the determination which most closely resembles the then-current Fair Market Value of the Project, concurrently notify both Parties hereto. As used herein, the Appraised Fee Value shall be the Fair Market Value of the Project so selected by such third appraiser. The Parties shall share the appraisal expenses equally. Each appraiser selected by a Party or the Parties shall meet the Qualifications. SMRH: OLD:

16 (iii) Payment. The amount owing under this Section 2.2(d) shall be referred to as Subsequent Post-Construction Rent. The Subsequent Post- Construction Rent shall be payable by Tenant to CCSF without setoff, deduction, prior notice, or demand (except as otherwise provided in this Lease) in equal monthly installments on the first day of each month during the period commencing on the first anniversary of the Completion Date and continuing through and including the last day of the Initial Term (the Subsequent Post-Construction Period ). Subsequent Post-Construction Rent shall be prorated for any partial months at the beginning and end of the Subsequent Post-Construction Period based on the actual number of days in such month. (e) Renewal Period Rent. In the event that Tenant timely exercises its option to extend the Term of this Lease for the Renewal Period pursuant to Section 1.2(b) above, the Minimum Rent during the Renewal Period (the Renewal Rent ) shall initially be an amount determined by using the capitalization rate utilized in an appraisal obtained for the Renewal Period and multiplying it by twenty-five percent (25%) of the Appraised Fee Value determined in accordance with Section 2.2(d)(ii)(2) above. In addition to the adjustments provided for in Section 2.2(d)(ii) above, the Renewal Rent shall be adjusted on the tenth (10 th ) anniversary and on the twentieth (20 th ) anniversary of the first day of the Renewal Period (each a Renewal Rent Adjustment Date ) to any amount determined using the capitalization rate utilized in an appraisal obtained for such Renewal Rent Adjustment Date and multiplying it by twenty-five percent (25%) of the Appraised Fee Value determined in accordance with Section 2.2(d)(ii)(2) above. Notwithstanding anything to the contrary contained herein, in no event will (i) the initial Renewal Rent be less than the Minimum Rent in effect immediately prior to the expiration of the Initial Term, as adjusted by the percentage increase, if any, in the Index from the date that was one (1) year prior to the date on which the Renewal Term commenced through the date on which the Renewal Term commences or (ii) the Renewal Rent, as adjusted on each Renewal Rent Adjustment Date, be less than the base rent in effect immediately prior to the applicable Renewal Rent Adjustment Date, as adjusted by the percentage increase, if any, in the Index from the date of the immediately preceding increase pursuant to Section 43 through such Renewal Rent Adjustment Date. (f) Base Rent. Pre-Construction Rent, Construction Rent, Initial Post- Construction Rent, Subsequent Post-Construction Rent, Minimum Rent and Renewal Period Rent are hereinafter collectively referred to as Base Rent. 2.3 Percentage Rent. (a) Calculation of Percentage Rent. If during any calendar year during the Term Percentage Rent is greater than Base Rent, Tenant shall pay to CCSF percentage rent ( Percentage Rent ) in an amount equal the product of (i) fifteen percent (15%) multiplied by (ii) the positive difference between all Gross Revenues during each calendar year period following the Completion Date and the applicable Gross Revenue Threshold during each such twelve (12) month period. For any portion of the Term that is less than a full calendar year, the amounts of Base Rent and of Gross Revenues used to calculate Percentage Rent shall be prorated based upon the number of days in such period as SMRH: OLD:

17 compared to 365. As part of the Tenant s proposal in connection with this Lease, Tenant has provided to Landlord various projections of rental revenue, which is material to CCSF because CCSF has entered into the transaction in material reliance on the prospect of participation in rent. Tenant hereby represents and warrants that all such projections are net of all costs to be deducted from Gross Revenues in the definition of such term. The foregoing notwithstanding, Percentage Rent shall not in any event commence until the first anniversary of the earlier of (1) Completion Date, or (ii) the Construction Commencement Deadline. (b) Payment of Percentage Rent. At least thirty (30) days before the beginning of any calendar year in which Percentage Rent or Projected Percentage Rent is applicable, Tenant shall delver to CCSF an operating budget for such calendar year which will include a projection of Percentage Rent. If Percentage Rent is projected to exceed Base Rent otherwise payable during such period, then during the calendar year Tenant shall pay projected Percentage Rent in lieu of Base Rent on a monthly basis, in arrears, on or before the first day of each month. Tenant shall furnish to CCSF a statement of annual Gross Revenues within sixty (60) days after the close of each calendar year. Such statements shall be in a form reasonably acceptable to CCSF and shall be certified as accurate accounting of Gross Revenues by an authorized representative of Tenant. If the statement of annual Gross Revenues shows that Percentage Rent during the period in question was greater than the Percentage Rent paid, if any, then at the time the annual statement is delivered, Tenant shall also pay to CCSF an amount equal to any Percentage Rent determined to be due and which has not been paid. If such statement shows that the amount of Percentage Rent paid during the period was greater than the amount due, then such overpayment shall be credited against the amount of Base Rent or Percentage Rent next otherwise becoming due. (c) Tenants Records. For a period of five (5) years following the submittal of its certified annual statement for each calendar year, Tenant shall keep and maintain full and accurate books of account and records relative to Gross Revenues from the Premises in accordance with cash accounting principles customarily utilized in the real estate industry consistently applied. The books of account and records kept and maintained by Tenant for audit purposes shall include all records, receipts, journals, ledgers and documents reasonably necessary to enable CCSF or its auditors to perform a complete and accurate audit of Gross Revenues in accordance with generally accepted accounting principles. (d) Audit. At its option, CCSF may, at any time during the five (5) year period following Tenant's delivery of an annual Gross Revenues statement and upon fifteen (15) days prior notice to Tenant (the "Audit Notice"), cause a complete audit (including a physical inventory) to be made, by an auditor selected by CCSF, of the relevant records and operations of Tenant and/or any party conducting business in or from the Premises relating to the Premises and covering a period not to exceed the prior five (5) years. Tenant shall make available to CCSF's auditor, at the Premises, within fifteen (15) days following the Audit Notice all of the documents which such auditor deems necessary or desirable. If such audit discloses that Gross Revenues, as previously reported for the period audited were understated Tenant shall pay to CCSF, within thirty (30) days: (i) the additional SMRH: OLD:

18 Percentage Rent due; and (ii) if such understatement was in excess of five percent (5%) of the actual Gross Revenues as disclosed by such audit, the reasonable cost of such audit plus all accrued interest on the understated amounts calculated at the Default Rate (as hereinafter defined) from the date that the payment would have been due for the period audited. In the event that CCSF's audit discloses that Tenant has overpaid Percentage Rent, then the amount of such overpayment shall be credited towards Tenant's next payment of Base Rent. 2.4 Participations. (a) Participation in Sales. In addition to Base Rent and Percentage Rent, upon an Equity Sale or a Transfer of the Tenant s interest in the Project or any portion thereof during the TemTerm of this Lease, Tenant shall pay to CCSF, as additional rent, an amount (the Sales Participation ) equal to fifteen percent (15%) of the positive difference between (i) the Net Sales Proceeds derived from such sale (net of the commercially reasonable costs incurred by Tenant in connection with such sale) less (ii) the applicable Sales Price Threshold. Each Sales Participation shall be payable by Tenant to CCSF without setoff, deduction, prior notice, or demand (except as otherwise provided in this Lease) concurrently with the closing of the applicable sale. As used herein, Equity Sale refers to a transfer or other exchange, accomplished through a transaction or series of transactions, of any ownership or membership interest in Tenant or any of its constituent entities (at whatever tier of ownership). If less than one hundred percent (100%) of the beneficial ownership of Tenant is transferred, the Sales Participation shall be determined on a pro-rated basis for the portion of Tenant so transferred. Notwithstanding the foregoing, CCSF shall not participate in an Equity Sale taking place prior to the commencementcommencement of Construction to the extent that the Equity Sale proceeds represent an equity investor s contribution to (i) pay for some or all of the cost of constructing the Improvements, (ii) to reimburse the original members of Tenant for predevelopment costs actually paid for by Tenant, (iii) to pay off debt incurred by Tenant to make the Initial Payment and/or to pay for Interim Leasing improvementsimprovements, or (iv) pay not-yet-incurred pre-development expenses. If a member in tenant or a member of a member in tenant is a fund with a more than a small number of investors, then an occasional transfer of a membership interest in such fund for bona fide business reasons unrelated to this Lease shall not constitute an equity sale. Further, in the event of a foreclosure, or deed or assignment of this Lease in lieu of foreclosure, pursuant to or under a Leasehold Mortgage authorized or permitted under Section 37, (A) CCSF shall be entitled to receive Sales Participation, calculated as set forth herein, only to the extent of cash proceeds (if any) received by the Tenant whose interest in the Lease was conveyed in the foreclosure or by deed/assignment in lieu of foreclosure, (B) such Sales Participation shall be sought exclusively from such former Tenant whose interest in the Lease was so conveyed, and (C) no such Sales Participation shall in any event be sought from foreclosing Mortgagee or from any purchaser at the foreclosure sale or in lieu of foreclosure. CCSF s rights against such Tenant whose interest was conveyed by foreclosure or deed/assignment in lieu of foreclosure shall survive such conveyance by foreclosure or in lieu of foreclosure, be personal to such former Tenant, and shall not be enforced by any remedy affecting this Lease or the leasehold estate of the foreclosure purchaser. SMRH: OLD:

19 (b) Participation in Refinancings. In addition to Base Rent and Percentage Rent, in the event that Tenant obtains any Subsequent Financing with respect to the Project or any portion thereof during the Term of this Lease, Tenant shall pay to CCSF, as additional rent, an amount (the Refinancing Participation and, together with the Sales Participation, the Participations ) equal to fifteen percent (15%) of the amount by which the Net Refinancing Proceeds obtained from such Subsequent Financing exceeds the Refinancing Threshold. Each Refinancing Participation shall be payable by Tenant to CCSF without setoff, deduction, prior notice, or demand (except as otherwise provided in this Lease) concurrently with the initial funding of the applicable Subsequent Financing regardless of whether all or only a portion of the Net Refinancing Proceeds from such Subsequent Financing are then advanced. The provisions of this Section 2.4(b) shall apply to each Subsequent Financing, but shall not apply to theany Pre-Construction Financing, Construction Financing, Initial Permanent Financing described in Section 37.4(b). If construction. If Construction is financed with equity and not with a construction loan, this Section 2.4(b) shall not apply to Initial Permanent Financing as described in Section 37.4(b) but shall apply to the first Subsequent Financing. 2.5 Rent. All amounts payable hereunder, including without limitation, Base Rent, Minimum Rent, Initial Rent, Pre-Construction Rent, Construction Rent, Pre-Stabilization Rent, Post-Stabilization Rent, Renewal Period Rent, Percentage Rent, and Participations shall be deemed Rent hereunder. 2.6 Manner of Payment of Rent. Tenant shall pay all Rent to CCSF in lawful money of the United States of America at the address for notices to CCSF specified in this Lease, or to such other person or at such other place as CCSF may from time to time designate by notice to Tenant. Rent shall be payable at the times specified without prior notice or demand. Rent shall be due and payable at the times otherwise provided in this Lease, provided that if no date for payment is otherwise specified, or if payment is stated to be due upon demand, promptly following notice, upon receipt of invoice, or the like, then such Additional Rent shall be due thirty (30) business days following the giving by CCSF of demand, notice, invoice or the like to Tenant specifying that such sum is presently due and payable. 2.7 No Abatement or Setoff; Rent Credit. Tenant shall pay all Rent, at the times and in the manner provided in this Lease without any abatement, setoff, deduction, or counterclaim, except for any credit against Rent described in Section 2.3(d) above. 2.8 Interest on Delinquent Rent. If any amount of Rent is not paid within ten (10) days following the date it is due, or if any Additional Rent is not paid within thirty (30) business days following written demand for payment of such Additional Rent, such unpaid amount shall bear interest from the date due until paid at an annual interest rate (the Default Rate ) equal to the greater of (i) ten percent (10%) or (ii) five SMRH: OLD:

20 percent (5%) in excess of the rate the Federal Reserve Bank of San Francisco charges, as of the date payment is due, on advances to member banks and depository institutions under Sections 13 and 13a of the Federal Reserve Act. However, interest shall not be payable to the extent such payment would violate any applicable usury or similar law. Payment of interest shall not excuse or cure any default by Tenant Late Charges. Tenant acknowledges and agrees that late payment by Tenant to CCSF of Rent will cause CCSF increased costs not contemplated by this Lease. The exact amount of such costs is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, without limiting any of CCSF s rights or remedies hereunder and regardless of whether such late payment results in an Event of Default, Tenant shall pay a late charge (the Late Charge ) equal to five percent (5%) of all Rent or any portion thereof which remains unpaid more than ten (10) days after CCSF s notice to Tenant of such failure to pay Rent when due, provided, however, that if Tenant fails to pay Rent when due on more than two (2) occurrences in any Lease Year, the Late Charge will be assessed as to any subsequent payments in such Lease Year remaining unpaid more than ten (10) days after they are due, without the requirement that CCSF give any notice of such payment failure. Tenant shall also pay reasonable Attorneys Fees and Costs incurred by CCSF by reason of Tenant s failure to pay any Rent within the time periods described above. The Parties agree that such Late Charge represents a fair and reasonable estimate of the cost which CCSF will incur by reason of a late payment by Tenant Additional Rent. Except as otherwise provided in this Lease, all costs, fees, interest, charges, expenses, reimbursements and Tenant s obligations of every kind and nature relating to the Premises that may arise or become due under this Lease (other than Rent), whether foreseen or unforeseen, which are payable by Tenant to CCSF pursuant to this Lease, shall be deemed Additional Rent. CCSF shall have the same rights, powers and remedies, whether provided by law or in this Lease, in the case of non-payment of Additional Rent as in the case of non-payment of Rent Net Lease. It is the purpose of this Lease and intent of CCSF and Tenant that, except as specifically stated to the contrary in Section 2.4, all Rent shall be absolutely net to CCSF, so that this Lease shall yield to CCSF the full amount of the Rent at all times during the Term, without deduction, abatement or offset. Except as may be provided in this Lease, CCSF shall not be expected or required to incur any expense or make any payment of any kind with respect to this Lease or Tenant s use or occupancy of the Premises, including any Improvements. Without limiting the foregoing, except as otherwise expressly provided in Section 4.1(c), Tenant shall be solely responsible for paying each item of cost or expense of every kind and nature whatsoever, the payment of which CCSF would otherwise be or become liable by reason of CCSF s estate or interests in the Premises and any Improvements, any rights or interests of CCSF in or under this Lease, or the ownership, leasing, operation, management, maintenance, repair, rebuilding, remodeling, renovation, use or occupancy of the Premises, any Improvements, or any portion thereof. No occurrence or situation arising during the Term, nor any present or future Law, SMRH: OLD:

21 whether foreseen or unforeseen, and however extraordinary, shall relieve Tenant from its liability to pay all of the sums required by any of the provisions of this Lease, or shall otherwise relieve Tenant from any of its obligations under this Lease, or shall give Tenant any right to terminate this Lease in whole or in part. Tenant waives any rights now or hereafter conferred upon it by any existing or future Law to terminate this Lease or to receive any abatement, diminution, reduction or suspension of payment of such sums, on account of any such occurrence or situation, provided that such waiver shall not affect or impair any right or remedy expressly provided Tenant under this Lease Lease Buyout Right. In the event that (i) Tenant has not obtained Final Discretionary Regulatory Approvals for a Project that is a primarily residential use within five (5) years following the Effective Date hereof (the Project Approval Deadline ) or (ii) Tenant shall not have commenced Construction within ten (10) years following the Effective Date hereof (the Construction Commencement Deadline ), then Landlord at any time thereafter shall have the right to terminate this Lease by providing written notice thereof (a Termination Notice ) to Tenant. Any such Termination Notice shall specify the date on which this Lease shall terminate (the Early Termination Date ), which Early Termination Date shall be ninety (90) days following the date the Termination Notice is given. If Landlord exercises its right to terminate this Lease in accordance with this Section 2.12, Landlord shall pay on or before the Early Termination Date a lease buyout fee to Tenant in the amount of (a) the sum of any Initial Payment and Subsequent Payment actually made by Tenant, plus (b) the unamortized commercially reasonable hard and soft costs incurred by Tenant in making Interim Leasing Improvements to the Premises. Soft costs shall include design professionals, other consultants and attorneys fees and permit application fees but shall not include financing or other carrying costs. In connection with a Lease Buyout exercised by CCSF after the Construction Commencement Deadline, the lease buyout fee shall also include (in addition to the preceding items (a) and (b)) (i) the unamortized commercially reasonable hard and soft costs incurred by Tenant, during periods following the Project Approval Deadline only, in seeking Regulatory Approvals for, and in subsequent constructing, Commercial Leasing Improvements to the Premises, and (ii) all Pre-Construction Rent actually paid by Tenant after the Construction Commencement Deadline (but excluding any Pre-Construction Rent paid during any periods when CCSF was prohibited from exercising the buyout right due to an event of Force Majeure), less the amount, if any, by which revenue received from Interim Leasing or Commercial Leasing Exceeds debt service actually paid to unaffiliated mortgagees during the corresponding period. In no instance shall the lease buyout fee include costs incurred in connection with the pursuit of Regulatory Approvals for a multifamily residential project. The Early Termination Date shall thereafter be deemed the effective expiration date of the Term for all purposes under the Lease and Tenant shall vacate the Premises on or before the Early Termination Date and shall deliver possession of the Premises in the condition received with any improvements made by Tenant, subject to wear and tear and damage by casualty and to the rights of possession of any subtenants pursuant to subleases previously approved by CCSF. SMRH: OLD:

22 In the event of litigation challenging the project sproject s Regulatory Approvals, CCSF may not exercise the buyout right described in this Section 2.12 for the duration of such litigation (not to exceed 36 months from its initiation), provided Tenant is fully funding and diligently contesting such litigation. In no event shall such litigation delay, defer or reduce Tenant s financial obligations hereunder, including the obligation to pay Rent at amounts otherwise due hereunder; provided, however, that if such Regulatory Approvals are invalidated as a result of such litigation, Minimum Rent shall revert to Two Hundred Thousand Dollars ($200,000) pursuant to Section 2.13(b); provided, however, in such event Tenant shall be entitled to credit against subsequent Minimum Rent payments hereunder the amounts of Minimum Rent previously paid from the Project Approval Deadline through the conclusion of such litigation in excess of Two Hundred Thousand Dollars ($200,000), provided further that such credit shall in no event exceed a total of Three Hundred Thousand Dollars ($300,000) in the aggregate Failure to Exercise Buyout Rights. (a) (a) In the event that CCSF elects not to exercise its right to terminate the Lease pursuant to Section 2.12 above, this Lease shall remain in full force and effect, including the obligation to pay Minimum Rent pursuant to Section 2.2 hereof, provided, however, (b) (b) If CCSF does not terminate this Lease for failure of Tenant to obtain Final Discretionary Regulatory Approvals by the Project Approval Deadline, Minimum Rent hereunder shall be increased, effective as of the first day of the sixth (6th) year of the Term, to Two Hundred Thousand Dollars ($200,000) and Tenant shall thereupon have the right to pursue Final Discretionary Regulatory Approvals for a Commercial Leasing use of the Premises, upon. Upon the issuance of whichsuch approvals, (i) Tenant shall pay to CCSF the Subsequent Payment referred to in Section 1.07(c) of the LDDA, and (ii) Minimum Rent shall be increased to the greater of (i) Two Hundred Thousand Dollars ($200,000) or (ii) five percent (5%) of the appraised value of the Premises (which appraised value shall be reduced, for purposes of this calculation, by the sum of any Initial Payment and Subsequent Payment actually made by Tenants pursuant to the LDDA. To make the calculation described in clause (ii), the parties shall cause an appraisal to be performed in accordance with Section 2.2(d)(ii) hereof at such time as Tenant has leased at least 70% of the premises square footage to commercial users (but not later than one year after completion of improvements for the commercial leasing project), with such appraisal to be based on leases then in place. (c) (c) If CCSF does not terminate this Lease for failure of Tenant to commence construction prior to the Construction Commencement Deadline, Minimum Rent hereunder shall be increased, effective as of the first (1 st ) day of the tenth (10 th ) year of the Term to the greater of (i) (A) Four Hundred Thousand Dollars ($400,000) as Indexed from the date Tenant obtains the Final Discretionary Project Approvals ( Deferral Rent ) plus an additional Four Hundred Thousand Dollars ($400,000), which shall be Indexed from the first (1 st ) day of the eighth (8 th ) year of the Term or (ii) five percent (5%) of the appraised value of the Premises which appraised value shall be reduced, for purposes of this calculation by the sum of any Initial Payment and Subsequent Payment actually made by Tenant pursuant to the LDDA. If at any time Tenant elects to pay to CCSF the Subsequent Payment, provided however, that from and after Tenant s payment to CCSF referred to in Section 1.07(c) of the LDDA, Tenant shall no longer be required to pay the Deferral Rent. SMRH: OLD: