HomeMy WebLinkAboutOrd 05-04 DublinSrLtdPartnrship ORDINANCE NO. 05 - 04
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
AN URGENCY ORDINANCE OF THE CITY OF DUBLIN
MAKING FINDINGS AND AUTHORIZING A GROUNOLEASEBETWEEN
THE CITY OF DUBLIN AND DUBLIN SENIOR LIMITED PARTNERSHIP
WHEREAS, the citizens of Dublin are experiencing a housing shortage for very low-income
senior households; and
WHEREAS, a goal of the Housing Element of the City's General Plan is to achieve a balanced
community with housing available for households of a range of income levels; and
WHEREAS, persons with very low incomes who currently live and/or work in the City are
increasingly unable to locate housing at prices they can afford and often become excluded from living
in the City; and
WHEREAS, it is a public purpose of the City, and a public policy of the State as mandated by
the requirement for a housing element of the City's General Plan, to make available an adequate
supply of housing for persons of all economic segments of the community; and
WHEREAS, the City is the owner of certain real property ("Property") described in the
Ground Lease, which is attached hereto as Exhibit A.; and
WHEREAS, pursuant to a Memorandum of Understanding CMOU'') with the County of
Alameda, the City acquired the Property and agreed to use the Property solely for public purposes for a
minimum of fifty (50) years; and
WHEREAS, the City invited several non-profit organizations to submit proposals for the
development of affordable senior housing on the Property, and following an evaluation of proposals
and a public hearing, the City selected Eden Housing, Inc., a California non-profit public benefit
corporation ("Eden"), to construct, own and operate a 54-unit affordable senior housing development
on the Property (the "Project"); and
WHEREAS, in June 2003, the City Council approved the execution of an Option to Lease
giving Eden the right to lease the Property, contingent upon Eden obtaining construction financing
commitments; and
WHEREAS, Eden is the general partner of Dublin Senior Limited Partnership, a California
Limited Partnership ("Partnership"), which was formed to develop, own and operate low-income
housing for seniors; and
WHEREAS, Eden and the Partnership have received construction financing commitments and
now plan to exercise the option in order to move forward with the construction of the Project; and
WHEREAS, in order to make the Project affordable to very low-income households, the
Project is also being financed with low-income housing tax credits; and
WHEREAS, in order to ensure the availability of the low-income housing tax credits,
financing must close and construction of the Project must be commenced before the end of February
2004; and
WHEREAS, if not for the low-income housing tax credits, additional public funds would be
required to make the Project affordable; and
WHEREAS, in order for financing to close and construction to commence before the end of
February 2004, the City must first lease the Property to the Partnership; and
WHEREAS, under California Government Code Section 37380, the Ground Lease must be
authorized by ordinance; and
WHEREAS, City loan documents and the attached Ground Lease will both impose
affordability and occupancy requirements and will require periodic monitoring of such requirements,
in accordance with Government Code Section 37380; and
WHEREAS, the lease of the Property to the Partnership will further the public purpose of the
City and the public policy of the State, and will fulfill the requirements of the MOU; and
WHEREAS, execution of the Ground Lease will allow for the construction and operation of
affordable senior housing for very low-income households, which will benefit the residents of the City
and encourage the immediate preservation of the public peace, health and safety; and
WHEREAS, immediate adoption of this Ordinance is necessary so that financing may close
and construction may commence before the end of February 2004, thereby ensuring the receipt of the
low-income housing tax credits and the Project's affordability.
NOW THEREFORE, THE CITY COUNCIL ORDAINS AS FOLLOWS:
1) Lease Authorized. The City Council of the City of Dublin hereby authorizes and
directs the Mayor or her designee to execute the Ground Lease substantially in ,the form attached
hereto as Exhibit A.
This Ordinance is adopted as an urgency measure for the immediate preservation of the public
peace, health and welfare. The City Council finds that the facts constituting the urgency are these:
The City entered into an MOU with the County, by which the City acquired the Property and
agreed to use it for public purposes for a minimum of fifty (50) years. The City selected Eden to
construct, own and operate the Project on the Property, and Eden has received the financing
commitments necessary to exercise the option to lease granted by the City. Eden formed the
Partnership to develop, own and operate the Project, and Eden is the Partnership's general partner. In
order to fulfill the requirements of the MOU, the City has proposed to lease the Property to the
Partnership for the construction and operation of the Project.
In order to make the Project affordable to very loW-income households, the Project is being
financed in part with low-income housing tax credits. If not for the low-income housing tax credits,
additional public funds would be required to make the Project affordable. To use the low-income
housing tax credits, financing must close and construction of the Project must be commenced before
the end of February 2004. In order to meet these deadlines, the City must first lease the Property to the
Partnership.
Under GOvernment Code Section 37380, the Ground Lease must be authorized by ordinance.
Execution of the Ground Lease will allow for the construction and operation of this affordable senior
housing, which will benefit the residents of the City and encourage the immediate preservation of the
public peace, health and safety. In light of the requirement that the Ground Lease be authorized by
ordinance, immediate adoption of this Ordinance is necessary_ so that the Ground Lease may be
executed and so that financing may close and cOnStruCtion may commenCe before the end of February
2004. This Will ensure the receipt of the low-income housing tax credits' and the Project's
affordability.
2) Compliance with California Environmental Quali~ Act. The City prepared an
Initial Study for the Project, which led to a finding that all potential environmental impacts could be
reduced to a less-than-significant level. Therefore, the City adopted a Mitigated Negative Declaration
for the Project.
3) Severability. In the event any section or portion of this Ordinance shall be determined
invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or
portions hereof shall remain in full force and effect.
4) Effective Date. This Ordinance is adopted as an urgency ordinance pursuant to
Government Code Se~ion 36937(b), to take effect immediately. It is necessary for this Ordinance to
take effect immediately to support the development of affordable housing for very low-income seniors
in the City.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Dublin this 3rd day
of February, 2004, by the following vote:
AYES: Councilmembers McCormick, Oravetz, Sbranti and Zika, and Mayor Lockhart
NOES: None
ABSTAIN: None
_A~SENT: None ~
U Mayor
ATTEST:
City Clerk
G:\CC_MTGS~2004-qtrlXFeb\02-03-04\ord-urgency eden. DOC (Item 6.3)
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GROUND LEASE
by and between
the CITY OF DUBLIN, a mUnIcipal corporation
as Landlord,
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and
DUBL][N SENKOR LIMITED P ARTNJERSH][P,
a Cahforma IIm:o.ted partnersblp,
as Tenant
Dated as of February 1 2004
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EXHIBIT A
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THIS GROUND LEASE (the "Lease") dated as of February 1,2004 ("Effective Date")
IS entered mto by and benveen the CIty of DublIn, a mUnIcIpal corporatIOn (hereafter "Crt}''' or .
'Landlord ') and Dublm Senior LImIted PartnershIp, a CalIfornIa hmlted partnershIp
( 'T enant")
REeIT ALS
A City IS the owner of fee tltle to the unImproved land located at 7606 Amador
Valley Boulevard, Dublm, CalIfornIa, and more partIcularly descrIbed on Exhibit A attached
hereto, mcludmg all appurtenances, easements, nghts~of-way and other mterests appurtenant
thereto (the' Land")
B Tenant IS a CalIforrua lImIted partnerslup whIch was formed to develop, own and
operate affordable housmg for very low- mcome semor households and to provIde related
servIces
C Landlord deSires to lease to Tenant, and Tenant deSIres to lease from Landlord the
Land, upon the terms and provIs1OuS set forth m thIS Lease, for the development by Tenant of a
multI-famIly rental housmg project for very low-mcome senIors and related Improvements
AGREEMENT
NOW, THEREFORE, for and m consIderatIOn of the covenants and agreements
heremafter set forth, and for other good and valuable consIderatIon, the receIpt and suffiCIency of .
whIch are hereby acknowledged, Landlord and Tenant hereby agree as follows
ARTICLE I
DEMISE OF PREMISES
I 1 Demise Landlord hereby leases to Tenant, and Tenant hereb) leases from
Landlord, the Land for the Term (as defined m SectIOn 2 1 below) and on the terms and
condItIOns set forth m thiS Lease All 011, gas, geothermal and mmeral nghts are expressly
reserved from thIS Lease Landlord shall have no nghts of entry or surface nghts for the purpose
of extractIOn of at!, gas, mmeral, geothermal or SImIlar resources, nor shall Landlord have the
nght to excavate any 011, gas geothennal, mmeral or SimIlar resources above a depth of 500 feet
dunng the Term of thIS Lease
1 2 CondItIon of TItle Landlord leases the Land to Tenant subject to all easements,
covenants, condItlons, restnCtIons and other tItle matters of record eXIstmg as of the EffectIve
Date, and all matters that would be apparent from an mspectlOn of the Land on the EffectIve
Date
1 3 CondItIon of Land Landlord leases the Land to Tenant III ItS 'as-IS" condItIOn
eXlstlllg on the EffectIve Date, and Tenant acknowledges that, except as otherwIse e?.pressly set
forth III thIS Lease, Landlord makes no representatIOns or waITantles to Tenant With regard to the
condwon of the Land or the fitness or SUitabIlIty thereof for Tenant's purposes mcludmg but not
lImIted to matters pertammg to topography, utlh ties so II su bSOll, presence or absence of fill,
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presence or absence of hazardous matenals, dramage, flood zone deslgnatlOn, access to publIc
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roads, or envIronmental laws, rules, or regulatlOns-'"Tenant has relIed on Its mvestlgatIOn and
Judgment as to all matters relatmg to the Land Tehant represents that It has, pnor to the
executIOn of thIS Lease, made mvestIgatIOns of the Land, mcludmg wIthout lIrmtatIOn such
mqulfles of governmental agencIes, SOlIs testmg tests and InSpectIOns as Tenant has deemed
necessary to determme the condItion of the Land and that Tenant, by executIOn hereof, accepts
the Land III Its current "as-IS" condItion and state
1 4 Defimtions
1 4 1 Imorovements For purposes of thIS Lease, the term "Improvements"
shall mean all bUlldmgs, structures, fixtures, fences, walls, paVIng, parkmg Improvements,
dnveways, walkways, plazas, landscapmg, permanently affixed utIltty systems and eqUIpment,
and other Improvements located on the Land
1 42 Project For purposes ofth1s Lease, the term "ProJect" shall mean the
Land and all Improvements
ARTICLE II
TERM OF LEASE
2 I Tenn The term of thIS Lease (the 'Term") shall commence on the Effective
Date, and unless sooner termmated under the provlslOns hereof, shall expIre on the day precedmg
the nmety~mnth (99th) anmversary of the EffectIve Date (the "Expiration Date") The
e>,pIratlon or sooner termmatlOn of the Term shall be referred to as "Lease TermmatlOn "
22 Lease Year For purposes of thIS Lease, "Lease Year' shall mean each calendar
year, or partial calendar year dunng the T eTIll
ARTICLE III
RENT
3 1 Rent Tenant shall pay to Landlord, rent for the Land ("Rent') m the amount of
One Dollar ($1 00) per Lease Y ear (or portIon thereof for the first and last Lease Year of the
Term) prep81d on the date of closmg for Tenant's constructIon finanCIng for the Project to
Landlord at the address shown In SectIOn 1762 or such other place as Landlord may deslgnate
In wTItIng For so long as the Project IS subject to the affordablhty reqUJrements (' Affordablhty
ReqUIrements") set forth In SectIOn 63 as the term of such AffordabIhtv ReqUlrements may be
extended pursuant to thIS SectIOn 3 1, there shall be no mcrease m Rent dunng the Term No
later than 90 days pnor to the eXpiratIOn of the term of the Affordabll1tv ReqUIrements and no
later than 90 days pnor to the eXpIratIOn of each extenSlOn of such term, If any, thereafter, Tenant
shall proVide wrItten notIce to Landlord mfoTIllmg Landlord of whether or not Tenant deslres to
extend the term of the Affordablltty ReqUlrements and the deSIred term of any such extenSIOn
The deCISIon to extend the term of the Affordablhty ReqUIrements, the length of each extenSIOn,
and the number of extenSIons shall be made III Tenant's sole dISCretIOn Tenant shall have the
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nght to extend the term of the AffordabIhty Reqmrements notwlthstandmg the failure of Tenant
to provIde wntten notIce to Landlord wlthm any applIcable 90-day notice penod and
notwIthstandmg any prOVISIOn that time IS of the essence If Tenant elects to extend the
AffordabllIty ReqUIrements, Tenant and Landlord shall execute an amendment to tins Lease
whIch shall (1) set forth the tenn ofthe AffordabIhty Reqmrements as extended, (II) state that the
Rent payable hereunder shall remam $1 00 per year through the eXpIratIOn of the term of such
extensIOn, and (lll) state that the Rent has been prepaId for such extended term If Tenant elects
not to extend the AffordabIlnv ReqUlrements, Landlord shall have the nght to charge addItIOnal
Rent durmg the portlOn of the Term remaIrung after the expIratIOn of the AffordabIhty
ReqUIrements Landlord and Tenant agree to negotiate m good faIth to establIsh the amount of
such addItlonal Rent and the terms of payment and shall execute an amendment to tlus Lease
settmg forth such terms In no event shall the addItlOnal Rent exceed the rent for leased
propertIes of comparable proJects, takIng mto consIderatIon the age and condltlOn of the
Improvements the remammg term of the Lease, and the projected cash flow of the Project takIng
Into consIderatIOn any applIcable restnctIOns on rent and Incorporatmg reasonable projectIOns
regardmg vacancy rates and tenant turnover ProvIded that the tenant under thIS Lease IS Eden or
a Tenant AffilIate (each as defined III SectIOn 15 1) or a nonprofit corporatIOn ("Nonprofit")
whIch IS tax-exempt under SectlOn 501(c)(3) of the Internal Revenue Code of 1986 as amended
(or successor proVIsIon), or a partnerslup III whIch Eden, a Tenant AffilIate, or a Nonprofit IS the
general partner the addItIonal Rent shall not exceed 60% of Surplus Cash (as defined 10 the Note
referenced In the Leasehold Deed of Trust, ASSIgnment of Rents, Secunty Agreement and
FIxture FIlmg ("Clt) Deed of Trust") executed by Tenant for the benefit of Landlord and
recorded concurrently WIth the Memorandum of thIS Lease
3 I I Non-Recourse The provlslOns of thIS SectIOn 3 I I shall apply for so long
as the tenant under this Lease IS any of the follOWIng Eden or a Tenant AffilIate, or a
partnershIp In whIch Eden or a Tenant AffilIate IS the general partner, provIded however, thIS
Section 3 I I shall also apply If Tenant s general partner IS replaced by Tenant s tax credIt
mvestor, or by any entIty that controls IS controlled bv, or IS under common control wah,
Tenant s tax credn Investor, or by any successor general partner selected by Tenant s tax credIt
mvestor after a default by Tenant s general partner
Subject to the precedmg paragraph, Tenant's oblIgatIon to pay addItIOnal Rent and other
monetary oblIgatIOns under thIS Lease shall be nonrecourse to Tenant as prOVided m th1S SectIOn
3 1 1 Except as expressly prov1ded m th1S SectIOn 3 1 1 neIther Tenant nor Tenant's partners,
officers, dlrectors employees or agents shall have an} dIrect or IndIrect personal hab11Ity for
pavment of addItlonal rent or other monetary oblIgatlOns under thIS Lease, and the sole recourse
of Landlord WIth respect to such payment shall be to terrnl11ate Tenant s leasehold Interest III the
Property provlded however nothmg contaIlled m the foregomg hmItatlOn of lIabIlIty shall
(A) ImpaIr the nght of CIty to bnng an actIOn to termmate thIS Lease and eVIct
Tenant from the Land,
(B) be deemed In an} way to 1mpmr the nght of the CIty to assert the unpaId
addItional rent or other sums due as a demand for money wlthm the meanmg ofSectlOn
431 70 of the CalifornIa Code of C1VII Procedure or any successor prOVISIOn thereto,
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(C) constitute a waIVer of any nght ~luch Crt) may have under any bankruptcy
law to file a doom for the full amount of the Indebtedness owed to City hereunder or to
reqUIre that the Project shall contInue to secure all of the mdebtedness owed to Cny
hereunder In accordance With tlus Lease, or
(D) hrmt or restrIct the abilIty of CIty to seek or obtam a Judgment agatnst Tenant
to enforce agaInst Tenant and Its general partners to
(a) recover under SectIOns 4 2. 5 3 1. 5 3 5. 6 9, 6 I 0 1. 12 1 and ArtIcle
IX of thIS Lease (pertammg to Tenant's mdemmficatlOn oblIgatIOns), or
(b) recover from Tenant and Its general partner(s) compensatory damages
as well as other costs and expenses mcurred by Crt:y (mcludmg WIthout hmItatIOn
attorney s fees and expenses) ansmg as a result of the occurrence of any of the
followmg (subject to the nghts of any SenIor Leasehold Mortgagee (as defined In
SectIOn 1623))
(1) any fraud or matenal mIsrepresentatIOn on the part of Tenant,
any general partner thereof or any officer, dIrector or authonzed
representatIve of Tenant or of any general partner thereof In connectlOn
WIth makmg or amendment of thIS Lease,
(n) any faIlure to maIntaIn Insurance on the Property and the
Project as reqUIred pursuant to tlus Lease,
(m) faIlure to pay taxes, assessments or other charges due on the
Property or the Project,
(IV) the presence of hazardous or tOXIC material or waste on the
Property or other VIOlatIOn of the Tenant s oblIgatIOns under SectIon 6 10
oftlus Lease (pertammg to envIronmental matters),
(v) the occurrence of any act or omISSIon of Tenant that results In
waste to or of the Project or the Property and which has a materIal adverse
effect on the value of the Project or the Property,
(VI) the removal or dIsposal of any personal property or fixtures III
VIOlatIOn ofthls Lease, or
(vu) the matenal mlsapphcatlOll of the proceeds of any Insurance
polley or award resultmg from condemnatIOn or the exerCIse of the power
of emment domalll or by reason of damage, loss or destructIOn to any
portIOn of the Project or the Property
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ARTICLE IV
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TAXES, ASSESSMENTS AND OTHER CHARGES
4 I Imposltlons Tenant covenants and agrees to pay pnor to delmquency all real
property taxes, possessory mterest taxes, lIcense and penmt fees, sales, use or occupancy taxes,
assessments whether general or specIal, ordmary or extraordmary, unforeseen, as well as
foreseen, of any kmd or nature whatsoever, pertammg to the ProJect, mcludmg, but not lImIted to
(I) any assessment, levy, ImposItIon or charge, m heu of or substitutIon for real estate taxes, and
(ll) any assessment for publIc Improvements or benefits wmch IS assessed, leVIed, or Imposed
upon or wInch becomes due and payable and a hen upon (a) the Project or any part thereof or
any personal property, eqUIpment or other faclltty used m the operatlOD thereof, (b) the rent or
Income receIved by Tenant from subtenants or ltcensees (c) anv use or occupancy of the ProJect,
or (d) thIS transactIOn or, subject to the exclUSIOns speCIfied below any document to whICh
Tenant IS a party creatmg or transferrmg an estate or Interest m the Project All ofthe foregOIng
are hereInafter referred to as "ImpoSltJons "
4 1 1 ExclusIOns ImposltIons speCIfically shall exclude (1) any Income,
franduse gross receipts, estate, Inhentance, transfer or gIft tax Imposed on Landlord, and (n)
any transfer tax or mcrease m assessments, property tax or possessory Interest tax that IS
attrIbutable to Landlord s sale or other transfer of the Land
4 1 2 Installments If by law, any such ImpOSItIOn IS payable, or may at the
optIOn of the taxpayer be paId In mstallments (whether or not Interest shall accrue on the unpaid .
balance of such ImpOSItIOn), Tenant may pav the same together WIth anv accrued Interest on the
unpaId balance of such ImpOSItIOn m mstallments as the same respectIvely become due and
before any fine or penalty may be added thereto for the nonpayment of any such mstallment and
mterest Any ImpOSItions relatIng to taA years that are only partlally mcluded In the Term of thIs
Lease shall be prorated between Tenant and Landlord
4 1 3 EVIdence ofPavment Upon request by Landlord, Tenant shall furDlsh In
form satIsfactory to Landlord, eVIdence of payment pnor to delInquency of all ImpOSitIOns
payable by Tenant
42 Tenant RUlht to Contest Tenant shall have the nght before any delmquency
occurs to contest or object to the amount or valIdIty of any such ImposltlOn by appropnate legal
proceedmgs, bur such nght shall not be deemed or construed m an) way as relIevmg modrfymg
or extendIng Tenant's covenant to pay any such ImpOSItIOn at the tIme and lD the manner
reqUIred by law Any such contest shall be conducted In accordance WIth and subject to the
reqmrements of ApphcabIe Law (as defined m SectIOn 5 3 I) and otherwIse 10 a manner that
does not subject Landlord s tttle to the Land to foreclosure or forfeIture Tenant shall mdemmfy,
defend, protect and hold Landlord harmless from and aga10st all claims, damages, losses,
lIabilItIes, costs and expenses (mclud1Og WIthout lImitatIon attorneys' fees) mcurred by Landlord
as a result of any such contest brought by Tenant Durmg any contest of an ImpOSItIOn, Tenant
shall (by payment of disputed sums If necessary) prevent any advertIsement of ta^- sale,
foreclosure of, or any dlvest10g of Lessor s tItle, reverSIOn or other mterest III the Land or the .
Project
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43 Tenant Duty to File Tenant sh~n have the duty ofmakmg or filIng any
declaratIon, statement or report whIch may be necessary or adVIsable m connectiOn WIth the
deterrmnatIon, equahzatiOn reductIOn or payment of any ImposItIOn whIch IS or whIch may
become payable by Tenant under the prOVISIOns of thIS ArtIcle 4, and Landlord shall not be
responsIble for the contents of any such declaratlOD statement or report, proVIded, however
Landlord shall cooperate WIth Tenant m connectlOn WIth the foregomg, mcludmg Jomder m any
applIcatIon pertammg thereto to the extent reqUIred under applIcable law, all at no cost to
Landlord
44 UtIhtIes Tenant agrees to payor cause to be pard, all charges whIch are mcurred
by Tenant or whIch are otheIWlse a charge or hen agamst the Project dunng the Term, for gas,
water, electrIcIty, ltght, heat or power, telephone or other communIcatIon servIce use, or other
utIlIty use, rendered or supplIed upon or m connectlOn WIth the Project Tenant shall also obtam,
or cause to be obtamed, WIthout cost to Landlord, any and all necessary permIts, lIcenses or other
authonzatlOns reqUIred for the lawful and proper InstallatIon and mamtenance upon the Land of
WIres pIpes, condUlts and other eqUIpment for the supply of utIhtIes to the Project In no event
shall Landlord have any lIabIlIty to Tenant, and Tenant hereby releases Landlord, from any and
all chums, mcludmg but not lImIted to consequential damages, lost profits and sllllllar damages
that Tenant may mcur as a result of any mterruptlOn, curtarlment or dImImshment of such
utIlitIes, other than for the actIve neglIgence or WIllful mIsconduct of Landlord N otWlthstandmg
the foregomg, Tenant shall have the nght to challenge the amount or valIdIty of the foregomg
charges, prOVIded that domg so does not result III the Land bemg subjected to any hen or other
encumbrance Landlord shall cooperate, wrthm reasonable hmIts to aSSIst Tenant m securmg
utilIty services for the Project
ARTICLE V
DEVELOPMENT OF THE LAND
5 1 ConstructIOn of Improvements Tenant agrees to construct on the Land a 54-umt,
multI-famIly reSIdentIal rental project for semors, together WIth related Improvements (the
"Development"), m accordance WIth plans and speCIfications approved by the CIty of Dub 1m
and any other applicable governmental agency or authOrIty The Development shall mclude 53
one-bedroom umts and ODe two-bedroom reSIdent manager's umt, together WIth a commumty
room and 3 1 parkmg spaces
5 2 ConstructlOn Schedule Tenant agrees to use dIligent efforts to complete
constructIon of the Development WIthIn twenty-four (24) months after the Commencement Date,
subject to UnavOldable Delays mcurred by Tenant ("UnaVOidable Delays" means delays due to
stnkes, acts of God, acts of the elements mabIlIty to obtam labor, materIals or UtIlItIes,
governmental restnctIOns or moratona, enemy actIOn, earthquakes, CIVIl commotIOn, war,
unavOldable casualty or SImIlar causes beyond the reasonable control of Tenant, but finanCIal
mabIhty of Tenant to perform shall not be an UnavOldable Delay or an excusmg cause
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5 3 ConstructIon Standards
5 3 1 General ConstructIon Standards All work done In connectIon WIth
constructlOn ofImprovements on the Land, mcludmg any subsequent Improvement, alternatlOn
or replacement shall be conducted In a first class and workmanhke fashlOn III accordance WIth
plans and specIficatlOns approved by Landlord and In complIance With all applIcable local, state
and federal statutes codes, ordmances, laws and regulatlOns (colleCTIvely, 'Applicable Laws")
Tenant shall take all reasonably necessary measures to mIrumIze any damage, dIsruptIOn or
mconveruence caused by such work and make adequate provlSlon for the safetv of all persons
affected thereby Tenant shall have the sole responsIbIlIty for obtammg aU necessary
governmental permIts and approvals for the constructIOn of the Improvements, at Tenant's sole
cost and expense Landlord shall cooperate WIth Tenant III connectIOn WIth obtammg any such
governmental permIts and approvals Tenant shall pay (or cause to be paId) all costs and
expenses assOCIated WIth the Improvements constructed by Tenant on the Land and shall
mdemmfy defend and hold Landlord harmless from and agaInst all claims, l1ahIl1tIes, losses,
costs and expenses (mcludmg reasonable attorneys' fees) Incurred by or brought agaInst
Landlord for the faIlure of Tenant to pay for the cost of such work, any mechanICS' or other hens
filed agamst the Land m connectIOn thereWIth, or the faIlure of Tenant to comply WIth
ApplIcable Laws mcludmg Without lImItatIOn, CalifornIa Labor Code SectIOn 1770 et seq
("PrevaIlmg Wage La",s") as and to the extent applIcable
5 3 2 InspectIon Durmg Construction Tenant agrees to allow Landlord's
authonzed representatIves, agents or employees reasonable access upon 24 hours pnor notIce to
Inspect any constructIOn Tenant undertakes on the Land
5 3 3 Easements From tIme to tIme at Tenant's request Landlord shall, In Its
capaCIty as fee tItle owner to the Land, Jom m the grant of easements to publIc or pnvate utIltty
compames for ut1l1ty servIce to and for the benefit of the Project Landlord agrees to JOIn m
grantmg or dedIcatmg such pubhc or pnvate utllItv or other easements as may be reasonably
reqUIred for the development of the Land III accordance WIth thIS Lease Landlord and Tenant
acknowledge that It WIll be necessary to grant and receIve certam recIprocal access, dramage,
and other easements to and from the parcel owned by Landlord located adjacent to the Land
The partIes agree to cooperate m determmIng the descnptIOn, nature and extent of such
easements and shall execute and record documents eVldencmg the same WhICh are reasonably
acceptable to both Landlord and Tenant WIthout lImItmg the generalIty of the foregomg,
Landlord and Tenant agree to the followmg (1) Landlord shall have a parkmg easement In
Tenant's parkmg lot m the locatIOn and of the dimenSIOns deSIgnated as "ParkIng Easement" on
Parcel Map 8144 ("'Parcel Map") (attached hereto as ExhIbIt C) proVIdIng Landlord WIth
exclUSIve nghts to use such Parkmg Easement for semor center use, (n) Landlord shall be
entitled to Install lIghtmg ill the locatIOns deSIgnated as 'PUE 1" and 'PUE 2" on the Parcel
Map, proVIded that Landlord shall be responSIble for the InstallatIOn, maIntenance and repan of
such lIghtmg and for payment of all utIlIty charges mcurred for such lIghtmg, (m) Landlord shall
proVIde Tenant WIth an mgress/egress/access easement across Landlord's adjacent property m
the locatIOn deSIgnated as "PIEE" on the Parcel Map, and (IV) Landlord and Tenant shall prOVIde
reCIprocal storm dram easements m the locatIOns deSIgnated as "PSDE" on the Parcel Map The
use and mamtenance of the easements descnbed 111 thIS SectIOn shall be more partIcularly
descnbed ill a separate easement agreement e),.ecuted by the partIes
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534 ProtectIOn of Landlord Nothmg m tlus Lease shall be construed as
constItutIng the consent of the Landlord, express or lmphed, to the performance of any labor or
services, or the furruslung of any matenals or any speCIfic lIDprovements, alteratIOns of or repaIrs
to the Project or any part thereof, by anv contractor, subcontractor, laborer or matenalman such
as to gIve nse to any nght of any such contractor subcontractor, laborer or rnatenalman to file a
mecharuc's hen or other clalm agaInst the fee tItle to the Land Landlord shall have the nght at
all reasonable tlIDes to post, and keep posted, on the Land any notIces wluch Landlord may deem
necessary for the protectIOn of Landlord and the Land from mechanIC s hens or other claIms
Tenant shall gIve Landlord ten (10) days' pnor wntten notIce of the commencement of any work
to be done on the Project to enable Landlord to post such notiCes In addItIOn, Tenant shall
make, or cause to be made tlIDely payment of all rnODles due and legally owmg to all persons
domg any work or funushIng an)' matenals or supphes to Tenant or any of Its contractors or
subcontractors m connectIOn With the Project
535 MechaniC'S Liens Subject to Tenant's nght to contest the same pnor to
payment, Tenant shall keep the Land and the Project free and clear of all mechan1c's hens and
other hens on account of work done by or for Tenant Tenant agrees to and shall Indemmfy,
defend and hold Landlord harmless from and agaInst hablhty, loss, damages, costs and expenses
(mcludmg reasonable attorney's fees) mcurred by or brought agamst Landlord for chums of hen
of laborers or matenalmen or others for work. performed or matenals or supphes furrushed to
Tenant or persons claImIng under It In the event any hen IS recorded, Tenant shall, WIthIn thIrty
(30) days after wntten request from Landlord, cause such hen to be removed of record by
bondmg or otherw1se
5 3 6 Notice of CompletIOn Upon completIOn of constructIOn of any
Improvement, Tenant shall file or cause to be filed In the OffiCIal Records of Alameda County a
NotIce of CompletIOn (the "NotIce of CompletIOn") WIth respect to the subject work Upon
request of Landlord, Tenant shall make avallable to Landlord follOWIng the completIOn of the
Improvements a full set of as-built plans for the Improvements
5 3 7 Use of Plans The contracts relatIng to deSIgn and constructIOn of the
Project executed by and between Tenant (or Tenant's general partner or other Tenant Affihate as
defined In SectIOn 15 1) and any arclutect, other des1gn profeSSIOnal or any general contractor
shall prov1de, m form and substance reasonably sat1sfactory to Landlord, for the asSIgnment
thereof to Landlord as securIty to Landlord for Tenant's performance hereunder and Landlord
shall be furnIshed WIth any such contract, together WIth the further agreement of the part1es
thereto, that If thIS Lease 1S termmated due to Tenant's default, Landlord may at ItS electIOn, use
any plans and speCIficatIOns to wh1ch Tenant IS then entitled pursuant to any such contract upon
the payment of any sums due to any party thereto The Landlord's nght to elect to use such
plans and speCIficatIOns shall be subordmate to and shall not defeat the nghts of the Leasehold
Mortgagee, and Landlord shall execute such agreements as the Leasehold Mortgagee may
reasonably reqUlre to confirm such subordmatlOn
5 3 8 Performance and Surety Bonds Pnor to the commencement of
constructIOn of any portIOn of the Improvements, Tenant shall purchase or cause Tenant's
contractor to purchase (A) m form reasonably satisfactory to Landlord and Issued by a
corporate surety reasonably acceptable to Landlord both a performance bond m an amount of not
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less than 100% of the cost of constructlOn, nammg Landlord and Leasehold Mortgagee as
addItlOnal msureds and a payment bond m an amount of not less than 100% of the costs for labor .
and matenals, namIng Landlord and Leasehold Mortgagee as addItlOnal msureds, or (B) a letter
of credIt m an amount not less than 10% of the cost of constructlOn, the form and substance of
whIch shall be subject to Landlord's approval, or (C) such other form of assurance of completlOn
the form and substance of whIch shall be subject to Landlord approval "Leasehold Mortgagee"
means the mortgagee or benefiCIary of any Leasehold Mortgage, and m the event of a transfer of
such Leasehold Mortgage, the successor Leasehold Mortgagee, upon delIvery of wntten notIce
of the transfer to Landlord, who thereupon shall be deemed to be the Leasehold Mortgagee
"Leasehold Mortgage" means a mortgage secured by the leasehold estate created by thIS Lease
and held by a Leasehold Mortgagee
ARTICLE VI
USE OF THE PROPERTY
6 1 PermItted Uses Tenant may use the Land for the development and operatlOn of a
54-urnt multI-famIly reSIdentIal rental project for sernors, and related anCIllary facIlItIes
consIstent and compatIble WIth a multI-fanuly reSIdentIal rental project for semors, and for no
other purposes WIthout the pnor wntten consent of Landlord
62 Occupancy RestrIctIons For the full Term no fewer than fifty-three (53) of the
dwellmg urnts m the Project shall be restncted for occupancy by households m whIch at least one
member IS a person 62 years of age or older ReSIdency by other persons m such dwellmg unItS .
shall be m complIance WIth SectlOn 51 3 of the CalIfornIa CIvIl Code
63 AffordabIhty ReqUIrements Subject to Tenant s optIon to extend as set forth m
SectIon 3 I hereof, for a penod of fifty-five (55) years commencmg upon the EffectIve Date, no
fewer than twentY-SIX (26) of the dwellIng unIts m the Project (49% of the total) shall be both
rent-restncted and occupIed (or If vacant, avaIlable for occupancy) by households whose mcome
does not exceed fifty percent (50%) of Area MedIan Income as adjusted for actual household
SIze The term "Area Median Income" shall mean the medIan gross annual mcome for
households m Alameda County, adjusted for household SIze, as determIned by the U S
Department of Housmg and Urban Development A dwellmg unIt shall qualIfy as
"rent-restricted" If the gross rent charged for such unIt does not exceed tlurty percent (30%) of
fifty percent (50%) of Area MedIan Income as adjusted for assumed household SIze m
accordance WIth CalIfornIa Tax CredIt AllocatlOn CommIttee ("TCAC") gUIdelmes As of the
EffectIve Date, such gUIdelInes prOVIde that assumed household SIze IS 1-1/2 persons for a studIO
apartment and 2 persons for a one-bedroom apartment
6 3 1 ReportIng ReqUIrements
63 1 1 Tenant CertIficatlOn Tenant shall obtam from each household
pnor to InItIal occupancy of each dwellmg urnt m the Project and on every annIversary
thereafter a wntten certIficate contaInIng all of the followmg m such format and WIth such
supportmg documentatlOn as reasonably requrred by Landlord
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(a) The ldentny and age of the resIdent who IS age 62 or older,
(b) The IdentIty and age of each other member of the household or such other
mformatlOn reasonably requIred to demonstrate complIance wIth SectlOn 6 2
above, and
(c) Household mcome
Tenant shall retam such certIficates for not less than three (3) years, upon request shall make the
ongmals avaIlable for mspectIon by Landlord and by the Dublm Umfied School DIstrIct, and
upon request, shall proVIde copIes of such certificates to Landlord and the DublIn Umfied School
Dlstnct
63 1 2 Annual Report Tenant shall submIt an annual report ("Annual Report")
to Landlord, whIch shall, at a mmImum mclude the followmg mformatIon for each dwellmg urnt
m the Project (1) mltlal occupancy date, (n) the number of persons resldmg m the umt, (111) the
mforrnallon speCIfied m SectIon 6 3 1 I, and (IV) the monthly rent charged Upon Landlord's
request, Tenant shall mclude WIth the Annual Report an annual Income recertlficatlOn and
documentatlOn venfymg tenant ehglbIlIty, and such additIOnal mformatlOn as Landlord may
reasonably request from tIme to tIme In order to show comphance WIth thIS Agreement Upon
request, Landlord shall proVIde a copy of the Annual Report to the Dublm Umfied School
DIstrIct
64 Manager's Umt One dwellIng umt m the Project may be used as a reSIdent
manager's umt, and shall be exempt from the occupancy and rent restrIctIons set forth In SectIOn
6 2 and 63 of thIS Lease
65 No Condommmm ConverslOll Tenant shall not convert the Project to condomlffium
or cooperative ownersmp or sell condommlUm or cooperatIve converSIOn nghts to the Project
dunng the Term oftms Lease
66 NondlscnmmatlOn There shall be no dlscnmmatIon agaInst or segregatIOn of any
person or group of persons on account of race, color rehglOn, creed, sex sexual onentatIOn
mantal status, famll1aI status, ancestry or natIOnal ongIn In the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Land or the Project, nor shall Tenant or any person
clalmmg under or through Tenant establIsh or permIt any such practIce or practices of
dlscnmmatIOn or segregatIOn WIth reference to the selectIOn locatIOn, number, use or occupancy
of tenants, lessees, subtenants sublessees or vendees m, of or for the Project Tenant shaH
mclude such proVISIOn m all deeds, leases, contracts and other mstruments executed by Tenant,
and shall enforce the same dilIgently and m good faIth
67 Bmdm!! on Successors No Subordmatlon The restnctlOns set forth In thIS
Artlcle VI shall be bmdmg upon Tenant and ItS successors and aSSIgns for the full Term of thiS
Lease, and shall not be subordmated to any mterest, hen, or mortgage, prOVIded however, the
affordabIhty restnctIOns speCIfied m SectIOn 6 2 shall be effectIve for a term of fifty-five (55)
years commencmg upon the EffectIve Date unless extended pursuant to SectIOn 3 I
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6 8 Management and OperatlOn of the Project. ComplIance Wlth Laws Tenant agrees
to use lts best efforts to operate, mamtam and manage the Project m first-class manner subject to
Incidental wear and tear Tenant, at Its sole cost and expense, shall comply WIth all ApplIcable
Lmvs pertammg to the use, operatIOn occupancy and management of the Project Tenant shall
not Itself, and shall not permIt any subtenant to use the Land or the Improvements for any
unlawful purpose and shall not Itself and shall not permIt any subtenant to, perform, permIt or
suffer any act of omlSSlOll or commlSSlOn upon or about the Land or the Improvements which
\Vould result III a nUIsance or a vlOlatlOn of ApplIcable Law Subject to the nghts of Leasehold
Mortgagees, Landlord shall have the nght to reVIew and approve the qualtficatJons of any
management entIty proposed by Tenant for the Project Landlord hereby approves Eden
Management, Inc as the management entity for the Project Any contractlOg of management
serVIces by Landlord shall not relieve Landlord of Its pnmary responslbIhty for proper
performance of management duties
69 Tenant RIght to Contest Tenant shall have the nght to contest by appropnate
proceedmgs, m the name of Tenant, and WIthout cost or expense to Landlord, the valIdIty or
applicatIon of any Appltcable Law If comphance WIth any ApplIcable Law may legally be
delayed pendmg the prosecutlOn of any such proceedmg Without the mcurrence of any hen,
charge or liabIlity agaInst the Land or Tenant's mterest therem and Without subJectmg Tenant or
Landlord to any lIabIlIty CIVIl or cnmmal, for failure so to comply therewIth, Tenant may delay
compliance therewith until the final determmatlOn of such proceedmg Tenant shall mdemmfy,
defend, protect and hold Landlord harmless from and agamst all claIms, damages, losses,
lIablhtJes, costs and expenses (mcludmg Without l1mltatlOn attorneys' fees) mcurred by Landlord
as a result of any such contest brought by Tenant
6 10 Hazardous MaterIals
6 10 1 OblIgations of Ten ant Tenant shall not cause or permit any Hazardous
Matenal (as defined below) other than matenals commonly used m the constructlOo operatlOn
and mamtenance of the ProJect, proVided such matenals are used and dIsposed of m complIance
WIth all applicable laws and regulatIOns, to be brought upon, kept or used m or about the Land or
the Project In VIOlatIOn of ApplIcable Law If Tenant breaches the covenant set forth m the
precedmg sentence, then Tenant shallmdemmfy defend, protect and hold Landlord harmless
from and agamst all claIms, demands, lIabilItIes, losses, damages, fines, penalties remedIatIOn
orders, costs or expenses (mcludIng attorney s fees) Incurred by or brought agamst Landlord as a
result of such breach by Tenant ThIS IDderrUllficatIon of Landlord by Tenant Includes, WIthout
hmItatlOn, costs mcurred III connectIOn W1th any InvestigatIOn of site condltlOlls or any cleanup,
remedial, removal or restoration work reqUIred by any federal, state or local governmental
agency or polItIcal subdiVISIOn because ofthe breach by Tenant of the terms and proViSIOns of
thls Section 6 10 I WIthout hmltmg the foregomg, If the presence of any Hazardous MaterIal at
the Project that \Vas not In eXIstence as of the EffectIVe Date results In any contammatIon of the
Project In VIOlatIOn of Apphcable Law, Tenant shall promptly take all actlOns at Its sole expense
as are necessary to remedmte the Project as reqUIred by law, prOVIded that Landlord s approval
of such actions shall first be obtamed, whlch approval may be \Vlthheld m Landlord s sole
dIscretIOn Dunng such tIme that City 1S the owner of Improvements located at 7600 Amador
Valley Boulevard (mcludmg wlthout hmltatIOn, the semor center under constructlOn as of the
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date hereof), Tenant's obhgatlOns under thIS SectlOn shall not apply to Hazardous Matenal
released from such property, the uses thereof or the Improvements located thereon
6 10 2 DefimtlOn of Hazardous Matenal As used In thIS Lease, the term
'Hazardous Material" means any hazardous, explosIve or tOXIC substance matenal or waste
whIch IS or becomes regulated by any local governmental authonty, the State of CalIforma or the
Umted States Government The tenn "Hazardous Matenal" mcludes, WIthOut lImItatIOn, any
matenal or substance whIch IS (a) defined as a "hazardous waste," "extremely hazardous waste'
or "restrIcted hazardous waste" under SectIons 25115, 2511 7 or 15122 7 or IS hsted pursuant to
SectlOn 25140, of the Callforma Health and Safety Code, DIvISIOn 20, Chapter 6 5 (Hazardous
Waste Control Law) (b) defined as a "hazardous substance" under SectlOn 25316 of the
Cahforma Health and Safety Code DlvlslOn 20 Chapter 6 8 (Carpenter-Presley-Tanner
Hazardous Substance Account Act), (c) defmed as 'hazardous matenal, , "hazardous substance,'
or "hazardous waste' under SectIOn 25501 of the Cahfonna Health and Safety Code, DlvlsIOn
20 Chapter 695 (Hazardous Matenals Release Response Plans and Inventory), (d) defined as a
"hazardous substance" under Sectlon 25281 of the CalIfOrnIa Health and Safety Code, DlvlSlon
20, Chapter 67 (Underground Storage of Hazardous Substances), (e) petroleum, (f) asbestos, (g)
lIsted under ArtlCle 9 or defined as hazardous or extremely hazardous pursuant to Article II of
Title 22 of the Cahforma Admmlstratlve Code, DIVISIOn 4, Chapter 30, (h) deSIgnated as a
"hazardous substance" pursuant to SectIOn 311 of the Federal Water PollutIon Control Act (33
US C S 1317), (I) defined as a "hazardous waste" pursuant to Sectlon l004 of the Federal
Resource ConservatIon and Recovery Act, 41 US C S 6901 et seq (42 use S 6903), or (j)
defined as a "hazardous substance" pursuant to SectIOn 101 of the ComprehensIVe
EnVIronmental Response, CompensatIOn and L13bllIty Act, 41 US C So 9601 et seq (42 lJ S C
S 9601)
ARTICLE VII
SURRENDER AND RIGHT TO REMOVE
7 I OwnershIP Durmg Tenn
7 1 I Improvements Durmg the Term of thIS Lease, all Improvements
constructed on the Land by Tenant as pernutted or reqUired by tins Lease shall, subject to the
terms of thlS Lease, be and remam the property of 1 enant
7 1 2 Personal Property All personal property, furmshmgs, trade fixtures and
eqUlpment mstalled by Tenant m, on or around the Project whlch (1) are not attached to the Land
so as to cause substantIal damage upon removal, and (n) are not necessary for the normal
operatIon and occupancy of the Project, shall be the personal property of Tenant (the "Personal
Property") At any time durmg the Term, Tenant shall have the nght to remove the Personal
Property prOVIded Tenant shall repmr any damage caused by the removal of such Personal
Property Personal Propertv shall not mclude any portIOn or part of maJor bUildmg components
or fixtures necessary for the operatlon of the baSIC bUIldmg systems (such as carpetmg, elevators,
escalators, chillers bOIlers, plumbmg, electrIcal systems, lIghtmg, sanItary fixtures and HV AC
systems) which shall be deemed a part of the Improvement:.
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72 OwnershIp at Lease TermmatIon
7 2 1 Improvements Upon the eXpIration or earlier termmatIon of the Lease
("Lease TermmatIon") the Improvements shall uncondItIonally be and become the property
solely of Landlord, and no compensatIOn therefor shall be due or prod by Landlord to Tenant for
any part thereof, and thIS Lease shall operate as a conveyance and asslgnment thereof Upon
Lease TermmatlOn, Tenant shall surrender to Landlord the Land and the Improvements III good
order, condItIOn and repaIr, reasonable wear and tear excepted, free and clear of all lIens, claIms
and encumbrances, subleases, other than those matters eXlstmg pnor to the Effective Date or
matters subsequently created or consented to by Landlord Upon Lease TermmatIOn at
Landlord s request Tenant agrees to execute, acknowledge and delIver to Landlord such
recordable Instruments as are necessary or deSIrable to confirm the terrmnatIon of the Lease and
all Tenant s nghts hereunder and to perfect Landlord's nght tItle and mterest In and to the Land
and the Improvements
7 2 2 Personal Propertv Any Personal Property may be removed pnor to Lease
TermmatlOn by Tenant, provIded, however, the removal shall be wIth due dlhgence and WIthout
expense to Landlord, and any part of the Land damaged by such removal shall be promptly
repaired Any Personal Property whIch remalllS on the Land for thirty (30) days after the Lease
TermmatIon may, at the optIOn of Landlord be deemed to have been abandoned and eIther may
be retamed by Landlord as Its property or may be dIsposed of m accordance With Applicable
Law If requested by Landlord Wlthm a reasonable tIme but not less than SIX months pnor to the
terrmnatIOn of thIS Lease, upon Lease Termmatlon Tenant shall, at Tenant's sole cost and
expense remove all Personal Property, or portlOns thereof deSIgnated by Landlord
7 3 CondItIon of Improvements at Lease TermmatlOn Landlord has entered thIS
Lease III rehance on the fact that, at Lease TenmnatIon, Landlord WIll receive from Tenant the
Improvements ill good condItlOn and repror, reasonable wear and tear excepted and reflectmg the
age of the Improvements at such tIme and Landlord's WIllIngness durmg the Term of thIS Lease
to consent to the encumbrance of Tenant' s mterest III the Land and Improvements for
rehablhtatlOn or reconstructIOn financmg At any tIme dUrIng the Term upon reasonable
advance notIce and dunng normal busmess hours, Landlord may mspect the Development to
confirm that It IS beIng properly mamtaIned as reqUired herem FollOWIng Its InSpectIOn,
Landlord may debver to Tenant wrItten nOtIficatIOn of any portlOns of the Development whIch
Landlord has determmed 15 not beIng properly maIntaIned and Tenant shall promptly comply
With the prOVISIOns of thIS Lease regardmg such Items, proVIded, the fallure of Landlord to
mspect or to notrn Tenant of any default hereunder shall not be a waIver of Landlord s nght to
enforce Tenant s mailltenance and repaIr oblIgatlons hereunder
74 Survival The prOVISIons of thIS ArtIcle 7 shall surVIve Lease TermmatlOn
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ARTICLE VIII
INSURANCE
8 1 Insurance Tenant, at lts sole cost and expense, dunng the Term hereof shall keep
and mamtam the polIcies of msurance set forth In Exhlbn B, attached hereto and mcorporated
herem and shall comply WIth all other requrrements set forth rn such ExhIbIt
ARTICLE IX
INDEMNIFICATION BY TENANT
Tenant shall rndemmfy, defend, protect and save Landlord and Landlord's elected and
appomted offiCIals employees officers and agents (collectIvely hereafter the "Indemmtees")
harmless from and agamst any and all claIms, hablhtIes, losses, damages, fines, penaltIes, chums,
demands, SUIts, actIOns, causes of actIOn, Judgments, costs and expenses (mcludmg WIthout
lImItatIOn reasonable attorneys fees and court costs) (collectIvely "Claims") ansmg dunng the
Term from conduct or management of or from any work or thmg whatsoever done m or on the
Land or Improvements, and Will further mdemmfy and save Indemrutees harmless from and
agamst any and all ClaIms ansmg dunng the Term from any condItIon of any Improvement
constructed bv Tenant on the Land, or ansmg from any breach or default on the part of Tenant m
the performance of any covenant or agreement on the part of Tenant to be perfonned pursuant to
the terms oftlus Lease or ansmg from any neglIgence of Tenant, or any of Its agents,
contractors, servants, employees, sublessees or hcensees, or arIsmg from any aCCident, Injury or
damage whatsoever caused to any person occurnng dunng the Term m or on the Land or the
Improvements, or from the furmshmg of labor or matenals by Tenant, and from and agaInst all
costs attorney's fees, expenses and habllitIes mcurred In or about any such clalm or actIOn or
proceedmg brought thereon In the event any such actIOn or proceedmg IS brought agaInst
Landlord by reason of any such clmm, Tenant, upon nollce from Landlord covenants to defend
such actIOn or proceedIng by counsel reasonably satlsfactory to Landlord If an Insurer under
msurance reqUIred to be maIntained by Tenant hereunder shall undertake to defend the Landlord
under a reservatlOn of fIghts With respect to ultImate coverage and Landlord shall reasonably
deem It necessary to reta1D mdependent counsel WIth respect to such matter, Tenant shall pay the
reasonable fees of such counsel The oblIgations of Tenant under thIS ArtIcle 9 shall not apply to
any clatms or other matters resultIng from the breach or default by Landlord under tlus Lease, or
from the gross neghgence or willful misconduct of Landlord, lts agents employees or
consultants
ARTICLE X
DAMAGE AND DESTRUCTION
10 1 Damage or DestructlOn In the event of any damage to or destructlon of the
Improvements dunng the Tenn Tenant shall restore and rebUIld the Improvements as nearly as
pOSSIble to theIr condrtlOn ImmedIatelv pnor to such damage or destructlOn, subject to any
restnctIOns Imposed by changes ill Apphcable Law and the consent of Leasehold Mortgagee, and
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provlded that msurance proceeds are made aVallable for the restoratIon or rebUIldmg and the
restoratlOn or rebUlldmg lS financlally feasIble Tenant shall commence dIlIgently and .
contmuously to carry out such rebUIldmg to full completlOn as soon as possIble Unless Lessor
agrees otherwIse m \vntmg, Tenant shall commence reconstructlOn of the Improvements wlthm
Slxty (60) da)s followmg the date upon whlch Insurance proceeds are made avaIlable for such
work Upon the occurrence of damage or destructlOll, all msurance proceeds paId III respect of
such damage or destructIOn shall be applied to the payment of the costs of the restoratIOn and
rebmldmg reqUIred to be performed by Tenant pursuant to thIS Lease The msurance proceeds
shall be held m trust by the seruer Leasehold Mortgagee or a finanCial mstItutlOn agreed upon by
Landlord, Leasehold Mortgagee and Tenant (the' Insurance Trustee"), Wlth the costs of such
trust to be a first charge agamst the msurance proceeds After the completIon of the restoratlOn
and rebUIldmg of the Improvements, any remammg Insurance proceeds shall be pald to Tenant
and Tenant shall be entItled to retam the same
10 2 RebUlldmg by Tenant The funds held by the Insurance Trustee shall be held m
trust and shall be applIed to the cost of rebUlldmg Any funds held by the Insurance Trustee
followmg final completIOn of rebmldmg and payment of all costs and expenses thereof and
removal of any hens related thereto, shall be patd to Tenant subject to the nghts of any
Leasehold Mortgagee
103 DIsbursement of Funds The Insurance Trustee shall dIsburse funds only on a
penodlc baSIS approved by Landlord and Tenant and only upon receIpt of mVOIces and other
documentatIOn, certIfied as correct by Tenant's archItect If an archItect IS reqmred for the reparr,
eVldencmg satIsfactory completIOn of the work for whIch payment IS requested (a "Payment .
Request") Further, the Insurance Trustee shall not dIsburse any funds unless the payment
request lS accompanIed by (a) an executed condItlOnal lIen release m form complymg WIth
Cahfornla law relatmg to all labor and matenals descnbed m the Payment Request and (b) an
executed final lIen release 10 form complymg wlth CalIfornia law releasmg all drums for labor
and matenals deSCrIbed 10 the lmmedlately precedmg Payment Request and such other terms as
are reqUIred by any Leasehold Mortgagee
104 NotIce ReqUITed In the event ofmatenal damage to or destructlOn of the
Improvements or any part thereof Tenant shall promptly glve Landlord notIce of such
occurrence and take all actlOos reasonably reqUIred to protect agamst hazards caused by such
damage or destructlOn For purposes oftlns Article 10 damage or destructIOn shall be deemed to
be matenalIfthe estImated cost to repair equals or exceeds One Hundred Thousand Dollars
($100,000)
105 RemovalofDebns Ifthls Lease shall termmate followmg the occurrence of
damage to or destructIOn of the Improvements and at a tlme when Tenant shall not have restored
and rebUIlt the Improvements then Tenant shall, at ItS cost and expense after the use of any
Insurance proceeds released for such purpose remove the debrIS and damaged portlOn of
Improvements (mcludmg WIthout lImltatlOn all foundatIOns) and restore the Land or the
applIcable portlOn thereof to a neat, clean and safe condltlOn
10 6 Tenant s RIght to Termmate Notwlthstandmg any contrary provlslOn oftrus
Artlcle 10, Tenant shall have the optlOn to term mate tlus Lease and be relIeved of the obligatIOn .
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to restore the Improvements where aU or substantIally all of the Improvements are substantially
damaged or destroyed and such damage or destructlOn resulted from a cause not msured agamst
by Tenant nor reqUIred to be Insured agaInst by Tenant under tlus Lease (an "Unmsured Loss"),
and where all of the follOWIng occur
1 0 6 1 No more than one hundred twenty (120) days followmg the Unmsured
Loss Tenant shall notlfy Landlord of Its electIOn to termInate tlus Lease, to be effectIve, such
notice must Include both a copy of Tenant' s notlficatiOn to the Leasehold Mortgagee, If any, of
Tenant's intentiOn to exerCIse the optiOn to term mate set forth In thiS SectIon 106, and Tenant's
certificatIOn under penalty of perJury that Tenant has delIvered or maIled such notIficatIOn to the
Leasehold Mortgagee In accordance With tills SectlOn 106 1 Landlord shall be entItled to rely
upon the foregOing notIce and certlficatlOn as conclusIve eVidence that Tenant has notlfied the
Leasehold Mortgagee regardIng Tenant s deSire to termmate thiS Lease
10 6 2 No more than sixty (60) days follo\iV1llg the gIVIng of the notIce reqUIred
by SectIOn 10 6 I or such longer tIme as may be reasonable under the Circumstances, Tenant
shall, at Tenant's expense after the use of any Insurance proceeds released for such purpose,
remove all debns and other rubble from the Land, secure the Land agaInst trespassers, and at
Landlord's electIOn remove all remammg Improvements on the Land
106 3 No more than tlurty (30) days followmg Tenant S termmatlOn notlce
Tenant shall deliver to Landlord a qUItclaim deed to the Land In recordable form In form and
content satIsfactorv to Landlord and/or WIth such other documentatIon as may be reasonably
requested by Landlord or any tItle company on behalf of Landlord tenmnatmg Tenant's Interest
In the Land
10 64 Wlthm ten (10) days followmg Landlord's receIpt of the notIce referred to
SectIon 10 6 1, Landlord has not receIved both wrItten notice from the Leasehold Mortgagee, If
any, obJectmg to such termmatlOn and an agreement contammg an effectIve aSSIgnment of
Tenant's Interest m tlns Lease to such Leasehold Mortgagee whereby such Leasehold Mortgagee
expressly assumes and agrees to be bound by and perform all of Ten ant's obhgatlOns under thIS
Lease
ARTICLE XI
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
If Tenant shall at any tIme fall to pay any ImpOSitIOn or other charge payable by Tenant
to a third party as reqwred by thIS Lease withm the tIme permitted or to pay for or mamtam any
of the Insurance polICIes prOVIded for m Article 8 hereof Wltlnn the time therem permItted, or to
make any other payment or perform any other act on ItS part to be made or performed hereunder
wIthm the time permItted by thiS Lease, then Landlord, after thIrty (30) days' wrItten notIce to
Tenant and WIthout waIvmg or releasIng Tenant from any obhgatIOn of Tenant hereunder, may
(but shall not be reqUIred to) (I) pay such ImpOSitIon or other charge payable by Tenant, (n)
pay for and mamtam such lTIsurance poliCies prOVIded for m ArtIcle 8 hereof, or (m) make such
other pavrnent or perform such other act on Tenant's part to be made or performed under tillS
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Lease, and Landlord may enter upon the Land and the Improvements for such purpose and take .
all such actlOn thereon as may be reasonably necessary therefor
All sums paId by Landlord and all costs and expense Incurred by Landlord III COnnectlOn
WIth the performance of any such act (together with mterest thereon at the Default Rate from the
respectIve dates of Landlord s maklllg of each such payment) shall constitute addIlIonal Rent
payable by Tenant under thIS Lease and shall be paId by Tenant to Landlord on demand The
"Default Rate' shall mean lllterest calculated at an annual rate equal to the rate of Illterest most
recently announced by the semor Leasehold Mortgagee at Its San FranCISCO office as Its
'reference rate' but In no event more than the ma~]mum rate of mterest permItted by law If the
semor Leasehold Mortgagee or Its successor no longer Issues a "reference rate," the most
comparable rate of the largest bank WIth ItS corporate headquarters In Calrforrua shall be used If
there IS no such bank or comparable rate, then the Default Rate shall be the hIghest legal rate of
mterest that may be charged at that tIme
ARTICLE XII
REPAIRS. CHANGES, AL TERA TIONS AND NEW CONSTRUCTION
12 I RepaIrs and Mamtenance Tenant covenants and agrees throughout the Term
WithOut cost to Landlord, to take good care of the Land and Improvements and to keep the same
III good order and condItlOn Tenant shall promptly at Tenant's own cost and expense, make all
necessary repmrs, mtenor and extenor, structural and nonstructural ordmary as well as
extraordmary, whether contemplated or not contemplated at the tIme of executIOn of thIS Lease, .
and shall keep the Project m a well mamtamed, safe clean and sanItary condItIon The term
"repatrs ' shall mclude replacements or renewals when necessary, and all such repaIrs made by
Tenant shall be at least equal m quahty and class to the ongmal work Tenant shall keep and
mamtam all portions ofthe Project and the SIdewalks adJommg the same m a clean and orderly
condItIon, free of accumulatlOn of dirt, rubbish and graffitI From time to time dunng the Term,
upon not less than three (3) days pnor notIce from Landlord Landlord may enter the Project, or
portIons thereof to determme If Tenant IS properly mamtammg the Pro) ect If followmg an]
such mspectlOn by Landlord, Landlord delIvers notIce of any deficIencv to Tenant Tenant shall
promptly prepare and delIver to Landlord Tenant's proposed plan for remedYIng the IndIcated
defiCIenCIes Tenant's failure to deliver a remedIal plan and to complete, wIthm a reasonable
tIme, remedIal work shall be a default under thiS Lease Landlord s faIlure to delrver, follOWIng
any Landlord's InSpectIOn, any notIce of defiCIency to Tenant, shall not be a WaIver of any
default by Tenant under thIS ArtIcle 12 Tenant shall defend, mdemmfy and hold Landlord
harmless from and agaInst any claIm, loss, expense, cost, or lIabIlIty mcurred by Landlord arIsmg
out of Tenant' s failure to fully and tImely fulfill ItS obhgatlOns to mamtam and repaIr the Land
and the Improvements as reqUIred hereunder
122 Chan!!es and AlteratIOns Tenant shall not dunng the Term make any changes or
alteratIons In, to or of the Improvements, Without the prIor wntten consent of Landlord which
Landlord shall not unreasonably WIthhold, so long as all the followmg are complIed WIth by
Tenant at Tenant's sole cost and expense
.
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(a) The change or alteratIon shall be m harmony WIth nelghbormg buIldmgs
and shall not matenally Impair the value or structural mtegnty of the Improvements
(b) The change or alteratIon shall be for a use whIch IS permItted hereunder
(c) No change, alteratlOn or addltlOn shall be undertaken unnl Tenant shaU
have obtamed and pald for so far as the same may be reqUIred from tIme to trme, all penmts and
authonzatlOns of any federal, state or mumcIpal government or departments or subdiVISIOns of
any of them, havmgJUTIsdIctlOn Landlord shallJom In the apphcatlOn for such permits or
authonzatlOns whenever such actIOn IS necessary, provIded, however, that Landlord shall Incur
no lIabIlIty or expense In cOIUlecuon therewIth
(d) Any change, alteration or addltlOn shall be made In a good and workmanlIke
manner and III accordance With all appltcable permIts and aU Apphcab1e Laws
(e) Dunng the penod of InItIal constructIOn of, or of constructIon of any
change, alteratIon or addltIon In, to or of the Improvements or of any permItted demolItIon or
neVv constructton or of any restoratIOn, Tenant shall maIntaIn or cause to be mamtamed fire or
other applIcable msurance provided for In Article 8, whIch polIcy or polICIes by endorsement
thereto, lf not then covered, shall also msure any change, alteratIOn or addmon or new
constructIOn, mcludmg all matenals and eqUlpment Incorporated In, on or about the Project
(mcludmg excavatIOns, foundatlOns and footmgs) under a broad form all nsks buIlders rIsk form
or eqUIvalent thereof
(f)
Tenant shall comply WIth the provlslOns of SectlOo 5 3
(g) At Landlord's request, Tenant shall proVIde Landlord WIth a copy of any
as-bUIlt drawmgs for the Improvements WIthm sixty (60) days followmg the completIon of the
Improvements
12 3 ExceptIOns to ReqUIrement for Consent The foregomg notwlthstandmg, Tenant
shall not be reqUIred to obtam Landlord s pnor wntten consent to any changes alteratIOns or
Improvements so long as aU the follov.nng reqUIrements are met
(a) The change, alteratIOn or Improvement IS non structural
(b) The change, alteratIOn or Improvement IS not VISIble from the extenor of any
bUIldmg on the Land
(c) The change, alteratIOn or Improvement has a cost ofless than One Hundred
Thousand Dollars ($100,000)
(d) The proVISIOns of SectIOn 5 3 are satIsfied
NotwIthstandmg the foregomg, Tenant shall delIver to Landlord not later than ten (10) days pnor
to commencement of any constructIOn change, alteratIOn or repaIr written notIce of the
proposed work a general descnptlOn of the proposed work and suffiCIent mformatIOn to permit
Landlord to post a notIce of nonresponslbIhty on the Land
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124 No RIght to DemolIsh NotwIthstandmg any other provIsIOns of thIS ArtIcle 12,
Tenant shall have no nght to demolIsh any Improvement, once bmlt unless Tenant shall have .
receIved the pnor wntten consent of Landlord whIch shall not be unreasonably wlthheld If the
age and condItIOn of the Improvements makes repair or reconstructIOn ImpractIcal or financIally
mfeasIble
ARTICLE XIII
EMINENT DOMAIN
13 I Emment DomaIn
13 1 1 DefimtIOns The followmg defimtlons shall apply m constnung the
prOVIsIons of thIS ArtIcle 13
(a) , Award" means all compensatIOn, damages or mterest or any
combmatIOn thereof, paId or awarded for the takmg, whether pursuant to Judgment, by
agreement, or otherwIse
(b) "Notice of mtended tak1ng" means any notlce or notIficatIOn on which a
reasonably prudent person would rely and would mterpret as expreSSIng an eXlstmg IntentIOn of
takmg as dIstIngUIshed from a mere prelImmary mqUIry or proposal It Includes but IS not
lImIted to, the servIce of a condemnatIOn summons and complaInt on a party to thiS Lease The .
notIce IS conSIdered to have been receIved when a party to thIS Lease receIves from the
condemnIng agency or entlty a wntten notIce of mtent to take
."
(c) "Partial takmg" means any takmg that IS not a total takmg, a substantial
takmg or a temporary takmg
(d) "Substantial takmg" means the takmg of so much of the Project that the
remammg portIOn thereof would not be economIcally and feasIbl) usable by Tenant for the then
eXlstmg uses and purposes of the Project, m Tenant s reasonable Judgment but shall exclude a
temporary takIng
(e) "Takmg" means any takmg of or damage, mcludmg severance damage, to
all or any part of the Project or any mterest therem by the exerCIse of the power of emment
domam or bv mverse condemnatIOn or a voluntary sale, transfer or conveyance under threat of
condemnatIOn III aVOidance of the exerCIse of the power of emlllent domaIn or while
condemnatIOn proceedmgs are pendIng
(f) "Temporary takmg" means the takmg of any mterest m the Project for a
penod of less than one (1) year
(g) "Total takmg' means the takIng of all or substantIally all of the ProJect,
but shall excl ude a temporary takmg
.
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13 1 2 NotIce The party receivmg any notIce of the kmd spectfied below shall
promptly give the other party wntten notIce of the receIpt, contents and date of the notIce
received
(a) notIce of Intended takmg,
(b) servIce of any legal process relating to condemnatIOn of all or any
portIOn of the Project
(c) notIce m connectIOn 'WIth any proceedmgs or negotIatIOns 'WIth respect
to such a condemnatIon, or
(d) notIce of mtent or wlllmgness to make or negotIate a pnvate purchase,
sale or transfer In heu of condemnatIOn
Landlord and Tenant, and any Leasehold Mortgagee, each shall have the rIght to represent its
respectIve mterest m each proceedmg or negouatlOn WIth respect to a takmg or mtended takmg
and to make full proof of theIr respectIve cilums No agreement, settlement, sale or transfer to or
With the condemnmg authonty shall be made 'WIthout the mutual agreement of Landlord and
Tenant and any Leasehold Mortgagee Landlord and Tenant each agree to execute, acknowledge
and delIver to the other any mstruments that may be reasonably requued to effectuate or
faCIlItate the prOVISIOns of thIS Lease relatmg to condemnatIOn
13 1 3 Total or SubstantIal Takmg In the event of a total or substantial takmg of
fee title to the Land, Tenant's mterest In tillS Lease and all obhgatlOns of Tenant subsequently
accrumg hereunder shall cease as of the date ofthe vestmg ofhtle In the condemmng authorIty,
provided, however, that If actual phYSical possessIOn of all or part of the ProJ ect IS taken by the
condemmng authorIty pnor to such date ofvestmg of tItle, Tenant's oblIgatIOns to pay rent and
other sums under thIS Lease shall termmate as of such earher date In the event of a total or
substantIal takmg of an mterest m the Project other than fee tItle at Tenant s optlOn (exercIsable
by wntten notlce to Landlord), Tenant's Interest m thIS Lease and all obl1gatIons of Ten ant
subsequently accrumg hereunder shall cease as aforesald
13 I 4 A v..ard In the event of a total or substantIal takmg, the award shall be
apportIOned as follows, In the followmg order
(a) If Tenant 5 mterest In thIS Lease IS encumbered by a Leasehold Mortgage, to
the Leasehold Mortgagee as provIded m the Leasehold Mortgage
(b) To Tenant's tax credIt mvestor lImited partner the amount (If any) reqUIred to
cover any recapture of low-mcome housmg tax credIts that may result from a ternunatiOn of the
Lease as the result of the takmg
(c) To Landlord, that portIOn of the balance of the award equal to the falr market
value of the Land taken, III an urumproved condItIon, but as encumbered by thls Lease
675g~]
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(d) To Tenant that portIon of the balance ofthe award equal to the faIr market
value of the leasehold estate created by thiS Lease and the Improvements (subject to Landlord's .
reverslOnary Interest)
(e) The balance, If any, shall be allocated between Landlord and Tenant
respectIvely m that proportlOn m which (I) the fair market value of the Land and Landlord's
reverslOnary mterest m the Improvements bears to (11) the faJr market value of the leasehold
estate created by thIs Lease and the Improvements, exclusIve of Landlord's reversIOnary mterest
13 1 5 Temporarv T along In the event of a temporary takmg, Tenant shall be
entitled to the whole award, and thIS Lease shall remalD m full force and effect
13 1 6 Partial T akmg In the event of a pamal takmg, thiS Lease shall reffiam m
full force and effect, covenng the remamder of the Project and Tenant shall repaIr and restore
any damage to the Improvements caused by such partIal takmg conSIstent WIth and subject to the
provIsIOns apphcable to a restoratlOn m the event of an msured casualty under ArtIcle 10. so that
after completIOn of the restoratIOn the Improvements shall be, as nearly as possible, m a
condltlOn as good as the condItIOn ImmedIately precedmg the partial takmg The award for any
partml takmg shall be depOSited and msbursed m the same manner as msurance proceeds are
disbursed for restoratIOn pursuant to Artlcle 10 (unless the Leasehold Mortgagee elects to apply
such proceeds to pay the mdebtedness secured by the Leasehold Mortgage) and upon
completIOn of the restoratlOD, any remammg portIOn of the award shall be allocated as set forth
In SectIon 13 1 6 1
13 1 6 1 Award on PartIal Takmg In the event of a partIal tiling, the
award shall be apportIOned as follows, III the followrng order
.
(a) If Tenant' 5 mterest m thIS Lease IS encumbered by a Leasehold
Mortgage to the Leasehold Mortgagee as prOVided rn the Leasehold Mortgage
(b) To Tenant's tax credIt mvestor lImIted partner the amount (If
any) reqUired to cover any recapture of low-mcome housmg tax credIts that may
result from a termmatlon of the Lease as the result of the takmg
(c) To Landlord, that portIOn of the balance of the award
attnbutable to the falI market value of the portIOn of the Land taken III an
ummproved condItion as encumbered by thIS Lease
(d) To Tenant, that portIOn of the balance of the award attrIbutable
to the faIr market value of the leasehold estate created by thIS Lease and the
Improvements, but only to the extent that the proceeds of the award are not used
for restoratIOn of the Improvements
(e) The balance, Ifanv, shall be allocated between Landlord and
Tenant respectlvely m that proportIon m whIch (i) the fair market value of the
Land as encumbered by thIS Lease and Landlord's reverslOnary mterest In the
Improvements bears to (11) the faIr market value of the leasehold estate created by .
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(f)
thIS Lease and the Improvements exclusIve of the reverSIOnary mterest of,
Landlord
<-
(f) Any severance damages awarded or payable because only a
portIon of the Project IS taken by emInent domam shall be (a) patd to Tenant
durmg the first 35 years oftlus Lease, (b) equally dIVIded between Tenant and
Landlord dunng the next 35 years of thIS Lease (except to the extent needed to
replace any Improvements taken by emInent domam WIth eqUIvalent
Improvements on the remamder of the' Land) and (c) paId to Landlord dunng the
remamder of the Term of tlus Lease
No payments shall be made to Tenant pursuant to thIS SectIOn If any default by Tenant
hereunder has occurred and IS contmumg unless and untIl such default IS cured
13 I 62 PartIal Takmg m Last FIve Years If a partIal takmg occurs
dunng the last five (5) years of Term and the reasonably estImated cost of reconstructIon work
exceeds twenty-five percent (25%) of the replacement value of the Improvements, Tenant shall
have the nght and optIOn to treat the same as a substantial takmg by gIVmg wntten notIce thereof
to Landlord no later than the earher of (a) the date ofvestmg of tItle m the condemrung
authonty of the portIOn of the Project taken, or (b) the date upon whlCh the condemrung authonty
takes phYSIcal posseSSiOn of such portIOn of the Project If Tenant does gIve such notIce the
partIal takIng shall be conSIdered as a substantIal takmg and the takmg shall be subject to the
prOVlSlons of SectIOn 13 1 3
tJ 13 I 7 Lease ProvlSlons Controllmg The prOVlSlons of thIS Lease shall
determme the nghts and obhgatlOns of the partles In connectIOn 'WIth any condemnatIOn, but as
between Tenant and any Leas!ho1d MQJ1gagee the Leasehold Mortgage shall control
ARTICLE XIV
MORTGAGES
14 1 Leasehold Mortgages Tenant shall have the nght, at any tlTIle and from tIme to
tIme durmg the Tenn, to encumber Its leasehold mterest hereUJlder WIth a Leasehold Mortgage or
Mortgages, prOVIded that (a) no Leasehold Mortgage shall m any way Imparr (except as
otherwIse stated herem or as proVIded by law) the enforcement of Landlord's nght and remedIes
herem and by law prOVided, (b) any such Leasehold Mortgage shall at all tImes be subject and
subordmate to, and shall not affect or become a hen upon Landlord's nght, tItle or estate In the
Land or In thIS Lease and (c) Tenant shall gIve ~andlord pnor wntten notIce of any such
Leasehold Mortgage, and shall accompany such notIce 'WIth a true and correct copy of any such
Leasehold Mortgage Any Leasehold Mortgage shall be subject to the tenns and condItIons set
forth In tlus ArtIcle 14
14 2 RIghts of Leasehold Mortgagee
I)
142 I NotIces If Landlord shall have been prOVIded With wntten notIce of the
address of any Leasehold Mortgagee, Landlord shall mall to such Leasehold Mortgagee a copy
of any notIce under thIS Lease at the tIme of gIvmg such notIce to Tenant, and no such notIce
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shall be effectIve agamst such Leasehold Mortgagee and no termInatIon of thIS Lease or
termmatIOn of Tenant's nght of posseSSIOn ofthe Land or relettmg of the Land by Landlord
predIcated on the gIVIng by Landlord of any notIce shall be effectIve, unless Landlord gIves to
such Leasehold Mortgagee wrItten notIce or a copy of Its notIce to Tenant of such default or
termmatIOn, as the case may be
.
1422 Ru!ht to Cure
(I) In the event of any default by Tenant under the prOVlSlons of thIS Lease, the
Leasehold Mortgagee shall have the nght to remedy or cause to be remedIed such default wIthm
the same cure penod as afforded Tenant hereunder, extended by an addItIonal mnety (90) days,
whIch cure penod shall commence as agamst the Leasehold Mortgagee upon the receIpt by the
Leasehold Mortgagee of the notIce of default Landlord shall accept such performance by the
Leasehold Mortgagee as If the same had been done by Tenant
(n) The term "mcurable default" as used herem means any default wmch cannot
be reasonably cured by a Leasehold Mortgagee The term' curable default" means any default
under thIs Lease whIch IS not an Incurable default Any faIlure to pay monetary sums shall at all
limes be deemed a curable default Any fatlme to complv Wlth the reqmrements of SectIOn 6 2
and 6 3 hereof shall at all tImes be deemed a curable default and as to SenIor Leasehold
Mortgagees or any entIty acqumng the mterest of Tenant In the Project and In thIS Lease as a
result of the foreclosure of a Leasehold Mortgage (or an assIgnment or deed III lIeu thereof),
Landlord shall not tenmnate tills Lease proVIded such party IS dIltgently and m good faIth
proceedmg to cure any such default In the event of any cmable default under tlus Lease, and If .
poor to the eXpiratIOn of the applIcable grace penod speCified In SectIOn 1422 (I) the Leasehold
Mortgagee shall give Landlord wntten notIce that It mtends to undertake the cunng of such
default, or to cause the same to be cmed, or to exerCIse Its nghts to acqUIre the leasehold mterest
of Tenant by foreclosure or otherWIse, and shall unmedIately commence and then proceed WIth
dIlIgence to do so, whether by performance on behalf of Tenant of Its oblIgatIOns under thIs
Lease by foreclosure or otherwIse, then Landlord wlll not tenmnate or take any actIOn to effect a
tenmnatlon OfthlS Lease or fe-enter, take posseSSIOn of or relet the Land or SImIlarly enforce
performance of thIS Lease so long as the Leasehold Mortgagee IS dlhgently and m good faith
engaged m the cunng of such default or effectmg such foreclosure The foregomg sentence shall
not be deemed to extend the tIme perIod \vlthm whIch a default In the payment of money must be
cured under other applicable Lease provlSlons The Leasehold Mortgagee shall not be reqUIred
to contmue such posseSSIOn or contInue such foreclosure proceedmgs Nothmg herem shall
preclude Landlord from termmatmg thIS Lease WIth respect to any addItIOnal default whrch shall
occur dunng any penod of forbearance and not be remedled wlthm the cure penod, If any
apphcable to any such addItIOnal default, except that Leasehold Mortgagee shall have the same
nghts speCIfied m thlS ArtIcle 14 With respect to any addItIonal defaults
(Ill) If the default by Tenant pertams to the faIlure of Tenant to complete the
constructIOn of the Development wlthm the tIme penod reqUIred under SectIOn 52 of thIS Lease,
and lfwlthm one hundred twenty (120) days followmg wnUen notIce to Leasehold Mortgagee of
such default Leasehold Mortgagee shall gIve Landlord wntten notIce that It mtends to undertake
the cunng of such default, or to cause the same to be cured and to exerCIse ItS nghts to acqUIre .
the leasehold rnterest of Tenant by foreclosure or otherwIse In order to effectuate such cure, and
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shallnnmedrately commence and then proceed WIth dIllgence to do so, then Landlord WIll not
termInate or take any actIOn to effect a termInatIOn of thiS Lease or re-enter, take posseSSIOn of or
relet the Land or SImIlarly enforce performance of thIS Lease so long as the Leasehold
Mortgagee IS dilIgently and In good faIth engaged In the completIOn of the constructIOn of the
Development or effectIng such foreclosure, provided however, Landlord shall not be oblIgated
to forebear from a termInatIon or other enforcement of Its nghts under the Lease m response to
such default beyond that date whIch IS thirty (30) months followmg the date of Landlord's IDltIal
default notice to the Leasehold Mortgagee under thIS SectIon 1422 (m), subject to extensIOn
due to UnavOldable Delays Incurred by Leasehold Mortgagee III the completIOn of the
constructIOn ofthe Development, and subject to extensIOn for any delay Incurred by Leasehold
Mortgagee as a result of legal lImItatIOns on ItS abilIty to foreclose upon the Tenant's leasehold
mterest
1423 ExecutIOn of New Lease Iftlus Lease IS termmated by Tenant s trustee m
bankruptcy, receIver lIqUidator or other Similar person on account of a default or If Tenant's
mterest under thIS Lease shall be sold assigned or transferred pursuant to the exerCIse of any
remedy of the Leasehold Mortgagee, or pursuant to JUdICIal proceedmgs and If (I) all monetary
defaults of Tenant have been cured and (n) the Leasehold Mortgagee shall have arranged to the
reasonable satIsfactIon of Landlord to cure any other curable default of Tenant under tills Lease,
then Landlord, WIthIn tlurty (30) days (or such penod as may reasonably be necessary to enable
Landlord to comply WIth statutory reqUIrements applIcable to Landlord s lease ofreal property)
after reCeIVIng a wntten request therefor, whIch shall be given WithIn SIxty (60) days after such
tenmnatIOn or transfer and upon payment to It of all expenses, mcludmg attorneys' fees, mCIdent
thereto, wIll execute and dehver a new lease of the Land to the Leasehold Mortgagee or Its
affihate or other nomInee or to the purchaser, assignee or transferee, as the case may be, for the
remamder of the Term, contammg the same covenants, agreements, terms, prOVISIons and
limItatIOns, as are contamed herem
(1) Upon the executIOn and delIvery of a new lease, the new tenant, In ItS own
name or In the name of Landlord may take aU appropnate steps as shall be necessary to remove
Tenant from the Land, but Landlord shall not be subject to any lIabIhty for the payment offees,
mcludmg attorneys' fees, costs or expenses m connectIOn therewIth, and the new tenant shall pay
all such fees, mcludmg attorneys' fees costs and expenses, on demand, and shall make
reImbursement to Landlord of all such fees, mcludmg attorneys' fees, costs and expenses,
Incurred by Landlord The new tenant shall mdemmfy and hold Landlord hannless from any
clalm, lIabIlIty or damage (mcludmg attorney's fees) as a result of the actlOn against Tenant
(11) Upon executIOn of any new lease, the new tenant named thereIn shall cure all
uncured breaches hereunder, except that wlth respect to any breach WhICh cannot be cured by the
neVv tenant untlllt obtams posseSSlOn, the new tenant shall not have to make such cure before It
has a rIght to obtaIn posseSSIOn Any nonmonetary cure reqUITed of the new tenant shall be
commenced Vo.'lthm ten (10) days followmg the date the new tenant executes the new lease or the
date the new tenant has a nght to obtaIn posseSSIOn, whIchever IS apphcable (the "Startmg
Date"), and thereafter shall be dlhgently prosecuted to completIon All monetary defaults shall
have been cured pnor to the executIOn of the new lease and any monetary defaults occurnng
thereafter shall be cured WIthIn ten (10) davs followmg the Startmg Date Any fmlure to comply
WIth any of the foregomg reqUIrements shall constitute a default under the new lease
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(111) Upon the Startmg Date, the ownershIp of all Improvements shall be deemed
to have been transferred dIrectly to such transferee of Tenant's Interest In thIS Lease and the .
prOVISions of SectIon 7 2 1 causmg such Improvements to become the property of Landlord m
the event of a termInatIOn of thIS Lease shall be meffectIve as applIed to any such termmatIon
Landlord shall execute such qUltclalm deed or other Instrument of conveyance as may be
reasonably requested, provIded such Instrument shall be expressly WIthout warrantv of any kmd
whatsoever and Landlord shall have no responsIblltty With regard to the state of tItle so
conveyed
1424 Tenant Default Under Leasehold Mortgage If Tenant defaults under a
Leasehold Mortgage, the Leasehold Mortgagee mav exercise With respect to the Project any
nght power or remedy under the Leasehold Mortgage whIch IS not III conflIct With the
prOVISIOns of thIS Lease
1425 No Merger There shall be no merger of thiS Lease or any mterest m thlS
Lease, nor of the leasehold estate created hereby, WIth the fee estate m the Land, by reason of the
fact that tills Lease or such mterest therem, or such leasehold estate may be directly or mdIrectly
held by or for the account of any person who shall hold the fee estate m the Land or any mterest
In such fee estate, nor shall there be such a merger by reason of the fact that all or any part of the
leasehold estate created hereb) may be conveyed or mortgaged m a Leasehold Mortgage to a
Leasehold Mortgagee who shall hold the fee estate III the Land or any mterest of the Landlord
under thIS Lease
14 2 6 AssumptIOn of OblIgatIOns For the purpose of thIS Article 14, the makmg
of a Leasehold Mortgage shall not be deemed to constItute an assignment or transfer ofthts
Lease or of the leasehold estate hereby created, nor shall any Leasehold Mortgagee, as such, be
deemed an assignee or transferee of thIS Lease or of the leasehold estate hereby created so as to
reqUlre such Leasehold Mortgagee as such, to assume the performance of any of the terms
covenants or conditIOns on the part of Tenant to be performed hereunder The purchaser at any
sale of thIs Lease and of the leasehold estate hereby created III any proceedmgs for the
foreclosure of any Leasehold Mortgage, or the assignee or transferee of thls Lease and of the
leasehold estate hereby created under any Instrument or assignment or transfer In heu of the
foreclosure of any Leasehold Mortgage, III order to be deemed to be an assignee or transferee
and before the same shall be bmdmg on Landlord, must assume III wrItmg the performance of all
of the terms, covenants, and condItlOns on the part of Tenant to be performed hereunder by an
mstrument, III recordable form, satIsfactory to Landlord, proVided however, that nothmg
contamed herem shall be construed to reqUire the purchaser, asslgnee or transferee as descnbed
above to be obhgated to cure any default by Tenant Although a purchaser, aSSIgnee or
transferee shall not be obhgated to cure any default, If any default IS not cured Landlord may
ex.erClse any remedy aVaIlable under this Lease, mc1udmg the termmatlOn of thIS Lease, If the
default IS not cured after the eXpIratIOn of any applIcable cure penod
14 2 7 LImitatIOn of Leasehold Mortgaeee Llab1l1tv for Tenant Defaults
NotwIthstandmg any contrary proVISIon hereof (1) no Leasehold Mortgagee shall be reqUired to
pay anv hens or charges that are extmgUlshed by the foreclosure of Its Leasehold Mortgage, (ll)
any Incurable default shall be, and shall be deemed to have been waIved by Landlord upon
completIOn of foreclosure proceedmgs or acqulSltlOn of Tenant's mterest m thIs Lease by anv
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purchaser at a foreclosure sale, or any entity who othefWlse acqurres Tenant's Interest from the
Leasehold Mortgagee Any entity acqumng the mterest of Tenant In the Project and In thIS
Lease as a result of the foreclosure of a Leasehold Mortgage (or an asSIgnment or deed III lIeu
thereof) shall be liable to perform the oblIgatIOns of Tenant under tlus Lease only dunng the
penod such entIty retams ownership of the mterest of Tenant m the Project and m thIS Lease
143 Non-SubordmatIOn of Fee Nothmg m thIS Lease shall be construed as an
agreement by Landlord to subordInate Its fee mterest m the Land or Its nght to rent payments
hereunder or any other nght of Landlord herem Except as expressly set forth m thIS ArtIcle 14,
no Leasehold Mortgage shall Imp au Landlord's abIhty to enforce Its nghts and remedies under
thIs Lease or provIded by law Landlord shall have no obhgatlOn to enctunber or otherwIse
subordmate Its fee mterest m the Land or m thIs Lease to the mterest of any Leasehold
Mortgagee In thIS Lease or III Tenant's leasehold estate
144 InstItutIOnal Lender Leasehold Mortgages are to be orIgmated only by
InStltutIOnal Lenders As used In tlus Lease the term 'InstitutIOnal Lender" shall mean anyone
or cOmbInatIOn of the followmg (a) CItlbank, (b) a commerCIal or savmgs bank trust company
Insurance company savmgs and loan aSSOCIatIOn, bmldmg and loan assocIatIOn, penSIOn,
retIrement or welfare fund, endowment fund or foundatIOn mvestment bankmg firm, or real
estate Investment trust (c) any other mstItutIonallender reasonably satisfactory to Landlord or
(d) any federal, state or local government entIty or agency
145 Landlord s Rlghts Under Leasehold Mortgages
145 1 Notlce of Ten ant s Default Tenant shall use best efforts to ensure that
every Leasehold Mortgage secured by a deed of trust on Tenant's leasehold estate In the Land
shall expressly prOVIde that
(a) the lender shall gIve Landlord contemporaneous notIce of any default
by Tenant thereunder, If the failure to cure such default mIght result In acceleratIOn of the
matunty of the debt secured by the Leasehold Mortgage, proVided however, that lender s faIlure
to gIve notIce shall not affect the lender s nghts or abIlIty to tImely pursue all applIcable
remedIes In addltlon, WIthm three (3) busmess days followmg Tenant's receIpt of any notice of
default under any financmg document affectmg the Property or the ProJect, Tenant shall prOVIde
Landlord WIth a copy of such notIce
(b) Landlord shall have the reasonable nght, but not the obltgatlOn to
cure any default by Tenant (but WIthout obhgatJOn to do so), and
(c) If Landlord shall tender payment III full of all StunS reqUIred to be paid
under the Leasehold Mortgage or the note secured thereby (dIsregardmg any acceleratIOn of
matunty thereunder, but mcludmg any costs or expenses arlSlng as a result of such default) on or
before nlDety (90) calendar days from the date of such notlce of default from the lender to
Tenant, then the lender shall accept such payment and rescmd the acceleratIOn, If any Any sums
paId by Landlord pursuant to thIS SectIOn 14 5 1 shall become Immediately due and payable from
Tenant to Landlord as Rent due under thIS Lease
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146 Purchase bv Landlord Landlord shall have the nght and optIon (but not the
oblIgatIOn), dunng the penod descnbed m the last sentence of thiS SectIOn 14 6, by notIce m .
wntmg to the lender, to purchase any Leasehold Mortgage, the note secured thereby, and any
other mstruments securmg or guaranteemg such note or otherwIse eVidenCIng any obligatIOn
<:'('cured by the Leasehold Mortgage The purchase pnce therefor shall be the full amount due
and owmg to the lender thereunder mcludmg any costs, expenses, and penalttes payable III
accordance With the tenns thereof The sale and aSSIgnment by the lender shall be Without
recourse or warranty by the lender except that such lender has good tItle to the note (or IS
authonzed to obtam payment or acceptance on behalf of one who has good tItle) and that the
transfer to Landlord vests III Landlord good tItle to the note or notes and m all secunty mterests
securmg the same, free and clear of all claIms and mterests of third partIes The fight granted by
thl~ SectIOn] 4 6 may be exercised by Landlord at any tIme after the lender has declared the
entire sum secured by any Leasehold Mortgage to be due and payable or has commenced
proceedmgs to foreclose any Leasehold Mortgage or, has requested a new Lease, whIchever shall
first occur, and such nght shall tennmate mnety (90) days follOWIng receIpt by Landlord of a
request that Landlord exerCise such nght gIVen m wntmg from the lender after the date such
nght shall first arIse as above proVIded
]47 No Voluntary Surrender/ModIficatlOn
147 1 No ModIficatIOn So long as any Leasehold Mortgage encumbers
Tenants' leasehold mterest III the Land, thiS Lease shall not be modIfied by Landlord and Tenant
Without the consent of the holders of such Leasehold Mortgages
1472 No Voluntary Surrender So long as Tenant IS not III default hereunder, .
Landlord shall not accept a voluntary surrender of the Tenant's leasehold estate Without the pnor
vvntten consent of all holders of any Leasehold Mortgage then In effect
ARTICLE XV
ASSIGNMENT, TRANSFER, SUBLETTING
15 1 RestnctIons on Transfer or AssHmment by Tenant Except as permItted pursuant
to thIS Article XV, Tenant shall not sell, transfer, aSSIgn or otherwise convey ("Transfer") all or
any portIOn of ItS mterest m the Project or thIS Lease voluntarIly mvoluntanly, by operatIOn of
laVv, or otherwIse, WIthout Landlord s pnor wntten consent whIch shall not be unreasonably
wlthheld Each Transfer shall comply WIth all reqUlrements therefor set forth elsewhere In tills
Lease, and Tenant shall have no nght to hypothecate or encumber ItS mterest In thIS Lease or
sublet all or any portIon of the Land and/or the Improvements except as expressly prOVIded
under the terms of tills Lease No voluntarv or Involuntary aSSIgnee sublessee, or successor In
mterest of Ten ant shall acqUlre any nghts or powers under thIS Lease except as expressly set
forth herem
15 1 1 ExceptIOns NotVvlthstandmg any contrary provIslon of thIS Lease
Landlord's consent shall not be reqUlred, and the prOVlSlons of SectIOn IS 2 and IS 3 below shall
not be applicable, WIth respect to the followmg Transfers (A) the foreclosure of a Leasehold
Mortgage or the acqUlsItlOn of Tenant s mterest 10 thIS Lease by an aSSIgnment or deed m heu of .
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foreclosure, (B) the first Transfer followmg any event descnbed m clause (A) of thIS sentence,
provIded, however, that 1n connectIOn WIth such a flfSt Transfer followmg an event descnbed m
clause (A) above, the transferee must be eApenenced In the o\VnerShIp, operatIOn and
management of affordable rental hOUSIng projects for semors Wlthout a record of matenal
VIOlatIOns of dIscnmmatlon restnctlOns or other apphcable state or federal laws pertammg
thereto, or If such transferee does not have the expeflence reqUIred above, the transferee must
retaIn a propert) management firm With such expenence, and (C) any Transfer of Tenant s
mterest m the Land, the Project, or any portlon thereof, or any sublease of the Land or portIOn
thereof, to a Tenant AffilIate For purposes hereof a "Tenant AffilIate' shall mean a person or
entIty that controls IS controlled by, or IS under common control WIth Eden Housmg, Inc , a
CalIfornIa nonprofit public benefit corporatlOll ("Eden") For purposes of definmg a Tenant
AffilIate, "control" shall mean the ownersmp of fifty percent (50%) or more of the ownershIp
mterests In an entIty, or m the case of a not-for-profit entIty, the nght to appomt fifty percent
(50%) or more of such entity's board of directors
15 2 Landlord's First RIght to AcqUIre Leasehold Interest Pnor to any Transfer by
Tenant of Its mterest m the Land, the ProJect, or anv portIOn thereof (the "Tenant Interest")
other than to Eden, Tenant shall notlfy Landlord m wntmg of ItS deSire to conSIder such a
Transfer (a "Transfer Notice") Tenant shall have the nght but not the oblIgatIon, to send a
Transfer Notlce to Landlord pnor to or concurrently With a Transfer Consent Request under
SectIOn 15 3 below, proVIded however Tenant shall not be reqUIred to have received an offer
for the Tenant Interest prIOr, or as a condItlOn, to sendmg a Transfer Notice to Landlord Tenant
shall mclude III the Transfer "NotIce the purchase pnce for wInch Tenant would be Wlllmg to sell
the Tenant Interest to Landlord WIthm thlrtv (30) days after receIpt of a Transfer Notice from
Tenant, Landlord shall notIfy Tenant m wntmg ("Landlord's Response Notice") as to whether
(I) Landlord IS not mterested 10 acqumng the Tenant Interest descnbed m the Transfer NotIce,
(11) Landlord IS mterested m acqumng the Tenant Interest descnbed m the Transfer NotIce, but IS
Wllhng to do so only on the reVIsed purchase pnce set forth In Landlord's Response NotIce or
(Ill) Landlord agrees to acqUIre the Tenant Interest on the purchase pnce and other terms and
condItIons set forth m the Transfer NotIce
If Landlord falls to dehver Landlord's Response NotIce as reqUIred above wIthm such
thIrty (30) day penod, or If Landlord tImely delIvers Landlord s Response Notice and elects
clause (I) descnbed above, then for the twelve (12) month penod followmg the date of delIvery
of Landlord's Response N otIce (or the requrred delIvery date thereof If Landlord falls to delIver
Landlord's Response NotIce) Tenant shall be free to Transfer the Tenant Interest descnbed In the
Transfer NotIce on whatever purchase pflce and other terms and conditIOns as Tenant thereafter
elects m Its sole dIscretIOn, subject to complrance by Tenant WIth the remammg provIslons of
thiS Article] 5 With respect to obtammg the Landlord s consent to such Transfer Any Transfer
by Tenant of the Tenant Interest after such twelve (12) month peflod shall reqUIre a new Transfer
Notlce from Tenant and compliance WIth the prOVISIons of thIS Sectlon 15 2 Notwlthstandmg
the 12~month penods set forth m tlus SectIOn 152, each 12-month perIod shall be subject to
three 60~day extenslOns If such tIme IS necessary to complete the closmg under a purchase and
sale agreement or other transfer agreement or contract entered mto WlthlO the Imtmll2-month
peflod
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If Landlord tImely deltvers Landlord s Response Notice and elects clause (n) above, then
Tenant shall have the nght, wlthm twenty (20) days after Tenant's receIpt of Landlord s .
Response Nonce, to eIther accept the revIsed purchase prIce set forth m Landlord's Response
NotIce or declme to accept such revIsed purchase prIce If Tenant fails to respond to Landlord's
Response NotIce \Y1thm such twenty (20) day penod, then Tenant shall be deemed to have
declmed to accept the revIsed purchase pnce set forth In Landlord's Response NotIce If Tenant
dechnes (or IS deemed to have declmed) to accept the revIsed purchase pnce set forth III
Landlord's Response NotIce, then Tenant shall thereafter be free, for the twelve (12)month
perIod follOWIng the date of delIvery of Landlord s Response Notice, to Transfer the Tenant
Interest on such purchase pnce and other terms and condItIOns as Tenant thereafter elects,
subject to complIance by Tenant wIth the remammg provlSlons of thIS ArtIcle IS With respect to
obtammg the Landlord's consent to such Transfer except that the purchase pnce accepted by
Tenant shall not be more than [$50,000J more favorable to the buyer than the purchase pnce
offered by Landlord III Landlord s Response NotIce Any Transfer by Tenant of the Tenant
Interest after such twelve (12) month penod shall reqUIre a new Transfer NotIce from Tenant and
complIance WIth the prOVlSlOns of thIS SectlOn 15 2
If Landlord tImely accepts the purchase pnce set forth ill the Transfer NotIce or Tenant
tImely accepts the purchase pnce set forth III Landlord s Response NotIce, then dunng the thIrty
(30) day perIod after such acceptance, the partIes shall III good faIth negonate and execute a
defimtIve agreement that Incorporates the accepted purchase pnce and the other terms and
condItIOns set forth m the Transfer NotIce If despIte the partIes' good faIth efforts the partIes
are unable to complete the negonatIOn and executIOn of such defimtIve agreement wlthm such
tlurty (30) days penad, then nenher party shall be obhgated to proceed WIth the Transfer ofthe .
Tenant Interest to Landlord, and Tenant shall have the nght for the twelve (12) month perIod
thereafter to Transfer the Tenant Interest to another thud party on such purchase prIce and other
terms and condItIons as elected by Tenant, subject to complIance by Tenant \Vlth the remaInIng
prOVISIOns of thIs ArtIcle 15 WIth respect to the obtaImng of Landlord S VVTltten consent to such
Transfer If Tenant and Landlord shall execute a defimtlve agreement forthe Transfer of the
Tenant Interest to Landlord and Landlord shall thereafter default m the performance of ItS
oblIgatIOns under such agreement then the terms and proVI SI ons of thI s SectIOn 15 2 shall
thereafter be of no further force or effect and Tenant shall have the nght to consummate
Transfers of Tenant Interests WIthout the apphcatIOn of thIS SectIOn IS 2, subject to complIance
by Tenant WIth the remaInmg provlSlons of thIS ArtIcle 15 WIth re:::.pect to the obtammg of
Landlord's wntten consent to such Transfer
Upon any Transfer by Tenant to Landlord of ItS leasehold mterest under thIS Lease, or
any portIOn thereof, pursuant to tillS SectlOn 15 2, Tenant shall be released from any further
lIabIlIty or oblIgatIOns under thIS Lease With respect to the transferred leasehold mterest, to the
extent such lIabIlIty or oblIgatIOns anses after the date of the Transfer, unless the transfer
agreement or purchase and sale agreement between Tenant and Landlord proVIde otherwIse
153 Procedure for Obtammg Landlord s Consent
(a) Transfer Request Wrth respect to each Transfer requmng the Landlord's
consent under SectIOn 15 I Tenant shall send to Landlord wntten request for Landlord s
approval of the Transfer (a "Transfer Consent Request") specIfymg the name and address of
.
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the proposed transferee and Its legal composrtlOn (If apphcable) Each Transfer Request shall be
accompanIed by all of the followmg
(I) An audIted or certIfied finanCIal statement of the proposed
transferee for the two most recent calendar or fiscal years prepared m accordance wIth generally
accepted accountmg procedures by a certIfied pubhc accountmg firm sufficIently current and
detaIled to evaluate the proposed transferee's assets, lIabIlIties and net worth and certIfied as true
and correct by the proposed transferee,
(ll) a descnptIOn ofthe nature of the mterest proposed to be
transferred, the portIOn or portlOns of the Project affected by the Transfer, and the proposed
effectIve date of such Transfer,
(Ill) a true and complete copy of the proposed assumptIOn agreement
descnbed In SectIon 15 6,
(IV) a complete hIstory of the proposed transferee descnbmg Its
background, ItS current real estate projects and 10catlOTI thereof, and the background of the
prmcIpals or personnel to be Involved In the development or operatIOn of the portlOn of the
Project subject to the Transfer and statmg whether the proposed transferee ever filed for
bankruptcy or had projects that were foreclosed,
(v) a descnptIOn of all projects of the proposed transferee whIch
dunng the past five (5) years have been the subject of substantlallmgatIOn, and
(VI) any such other mformatlon as reasonably requested by Landlord
w1thm fifteen (15) days followmg the receIpt of the above mformatIOn, m order to make an
mformed declSlon whether or not to approve or dIsapprove the Transfer
(b) Approval of Landlord WIthm thtrty (30) days followmg receIpt of all the
mformatlOn referred to m SectIOn 15 3 (a), Land} ord shall approve or dIsapprove a proposed
transferee With respect to the mformatIOn supphed If Landlord falls to glve Tenant wntten
notrce of ItS approval or dIsapproval of the transferee wlthm such thIrty (30) day penod, It shall
be deemed to have approved the transferee
15 4 LImItatIOns
(a) Non-Transfer Penod In no event shall Tenant request Landlord to
approve any Transfer pnor to the date that all of the followmg shall have occurred
(1) constructIOn of the Development and related Improvements shall
be complete and a certlficate(s) of occupancy shall be Issued WIth respect to the Development,
and
(n) all costs and expenses WIth regard to the constructIOn of the
Development and related Improvements shall be paId m fun, all hen perIods shall have expIred
and there shall be no hens on the Land, the Improvements the Landlord s fee tItle or any portIOn
thereof
67583 ]
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The prOVISIOns of thIS SectIOn 154 (a) shall not be applIcable to, or after, the foreclosure of a
Leasehold Mortgage or the acqmsltlOn of Tenant's mterest III this Lease by assIgnment or deed
m heu of foreclosure
.
(b) No Rehef from Llablhtv No Transfer wtll hmlt, dllmrush or otherwIse
relIeve Tenant of any hablhty descnbed herem The provISIOns of thIS SectIOn 15 4 (b) shall not
be applIcable to any Transfer followmg the foreclosure of a Leasehold Mortgage or follOWIng the
acqmsltlOn of Tenants mterest In thIS Lease by assignment or deed m lIeu of foreclosure
(c) No Consent If Bankruptc\, In no event shall Landlord be reqUIred to
consent or be deemed to consent to a Transfer to a party then subJ ect to any proceedmgs under
any Insolvency, bankruptcy or SimIlar laws
(d) CrItena for Transfer Landlord shall be deemed to be reasonable III
wlthholdrng Its consent to a proposed Transfer unless both of the followmg shall be the case
(1) Tenant dehvers to Landlord an audited fmanclal statement of the
proposed transferee for the two most recent calendar or fiscal years prepared In accordance With
generaU) accepted accountmg pnnclples by a recogmzed certIfied accountmg firm
demonstratmg that the proposed transferee IS a VIable, gomg concern With suffiCIent finanCial
abIlIty to own operate and manage the Project, and
(n) the proposed transferee shall have comparable reputatlOn and
expenence operatmg and managmg propertIes SImIlar to the Development as the reputatIOn and
experIence of the ongmal Tenant
.
15 5 Involuntarv and Other Transfers WIthout hmltmg any other restnctIOns on
transfer contamed m tlus Lease no mterest of Tenant III thiS Lease, the Land or the
Improvements shan be aSSIgnable m the followmg manner
(a) under an order of reheffiled, or a plan of reorgamzatIOn confirmed, for or
concermng Tenant by a bankruptcy coun of competent jUnSdlctlOn under the federal bankruptcy
act or the laws of the State of Cahforma, whereby any mterest m thIS Lease the Land or the
Improvements IS aSSigned to any party wluch does not qualIfy as an approved transferee pursuant
to thIS Lease unless such order IS filed or such plan IS confirmed In connectIon With an
Involuntary proceedmg brought agamst Tenant and Tenant reacqmres such transferred mterest
wIthm SIxty (60) days after the date such order IS filed or such plan IS confirmed,
(b) If T errant asSIgns substantIally all of ItS assets for the benefit of Its credItors, or
( c) If an order of attachment IS Issued by a court of competent JunsdIctIOn,
whereby any mterest III tills Lease, the Land or the Improvements or substantIally an of Ten ant s
assets are attached by ItS credltors and such order of attachment IS not stayed wlthm SIxty (60)
days after the date It IS Issued
The transfers desert bed m till s SectIOn 15 5 shall consh tute a breach under thlS Lease by
Tenant and Landlord shall have the nght to termmate thls Lease pursuant to Article 16 as a result .
of any such transfer takmg place, III whIch case thIS Lease shall not be treated as an asset of
675831
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Tenant
156 AssumptIOn Agreement and Release No permItted Transfer shall be effectlVe
untIl any curable default hereunder shall have been cured and there shall have been delIvered to
Landlord an assumptIon agreement, executed by the transferor and the proposed transferee,
whereby such transferee expressly assumes such oblIgatIOns as aflse and/or accrue at any tIme
after such Transfer takes place, and whereby such transferee assumes ltabIlIty for the lease
oblIgatIOns The partIes agree that as a condItwn to any Transfer takIng place the transferee shall
dehver to Landlord representations and warrantIes confirmmg the accuracy of the mformatIOn
delIvered to Landlord concernmg Its current fmancIal condItion and Its outstandmg or pendmg
lIabIlItIes
15 7 Change III General Partner of Tenant In addItIOn to the restnctIOns on Transfers
as set forth m thIS ArtIcle 15 Landlord shall have the nght to approve any change m the IdentIty
of the general partner of Tenant, mcludmg WIthout lImItatIOn, any admISSIOn of any new general
partner or WIthdrawal of any eXIStIng general partner Such approval nght of Landlord shall also
apply to the transfer ofa maJonty ofthe ownershIp mterest In a general partner of Tenant
Landlord shall not unreasonably WIthhold, delay or condItIon Its approval under thrs SectlOn
15 7 NotVol1thstandmg any contrary prOVISlOn of thiS SectlOn 15 7, Landlord s approval shall not
be reqUIred WIth respect to (1) any change m the Identrty or ownershIp of the general partner of
Tenant as long as followmg such change the general partner of Teuant contmues to be an enuty
wInch controls IS controlled by, or IS under common control WIth Eden, or (11) any change In the
general partner of Tenant to Tenant s tax credIt mvestor, any entIty that controls, IS controlled
by or IS under common control WIth, Tenant's taA credIt mvestor, or any successor general
partner selected by Tenant s tax credIt Investor after a default by Tenant's general partner For
purposes of thIS ArtIcle 15, "control" shall mean the nght to dIrect the management and affatrs of
an entrty, whether by vIrtue of the ownershIp of ownershIp mterests, by contract by appoIntment
of duectors or by common or overlappmg boards
15 8 Sale bv Landlord Notlnng contamed m thIS Lease shall be deemed 10 any v.ay to
hmIt, restrIct or otheIWlse affect the nght of Landlord to sell, transfer, aSSIgn or convey all or any
portIOn of the nght, tItle and estate of Landlord In the Land and In thIS Lease, prOVIded, however,
that m each such mstance any such sale, transfer, aSSIgnment or conveyance shall be subject to
thIS Lease, and Tenant's other nghts arlSlng out of thIS Lease shall not be affected or dIsturbed In
any way by any such sale, transfer, asSIgnment or conveyance Any other prOVlSlOn ofthls Lease
to the contrary notwIthstandmg, each covenant agreement or oblIgatIon of Landlord under thlS
Lease relatmg to the ownershIp or use of the Project IS mtended to and shall constitute a
covenant runnIng WIth the tItle to the Land and shall be bmdmg upon the owner from tIme to
tIme of the Land At such tIme as Landlord shall sell, transfer, aSSIgn or convey the entIre nght,
tItle and estate of Landlord In the Land and III thIS Lease, all oblIgatlOns and lIabIlIty on the part
of Landlord ansmg under thIS Lease after the effectIve date of such sale, transfer, aSSIgnment or
conveyance shall termmate as to Landlord, and thereupon all such lIabIlItIes and oblIgatIOns shall
be bmdmg upon the transferee Subject to comphance WIth applIcable law, any sale or transfer
of Landlord's mterest III the Land and thIs Lease other than to a governmental entIty or agency,
shall be su bJ ect to Tenant's n ght of first refusal on the same terms and condItIOns set forth In
SectlOn 15 2 above
67583J
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ARTICLE XVI
.
BREACHES, REMEDIES AND TERMINATION
16 1 Event of Default Tenant shall be III default under thI s Lease upon the Occurrence
of any of the followmg ( 'Events of Defa ult")
(1) Monetarv OblIgatIon Tenant at any Hme IS m default hereunder as
to any monetary obhgatIon (mcludmg Without hmItatlOn, Tenant's obligatIOn to pay taxes and
assessments due on the Property or the ProJ ect, subject to Tenant's nghts to contest such charges
pursuant to SectIOn 42), and such default contmues for twenty-five (25) days after Tenant
receIves NotIce of Breach (as defined m SectlOn 162 1),
(11) Insurance Tenant farls to obtam and mamtam any polIcy of
msurance reqUired pursuant to thIS Lease, and Tenant falls to cure such default wlthm twenty-
five (25) days followmg receIpt of Notice of Breach,
(m) Abandonment Tenant abandons the Project,
(IV) Bankruptcy Tenant files a voluntary petltlOn m bankruptcy or
files any petItIOn or answer seekmg or acqUlescmg m any reorganIZatIOn, arrangement,
compOSItIOn, readjustment lIqUidation dIssolutIon or Similar relIef for Itself under any present or
future federal, state or other statute, law or regulatIOn relatmg to bankruptcy, msolvency or other
reheffor debtors, or seeks or consents to or acqUiesces m the appomtment of any trustee, .
receiver or hqmdator of Tenant or of all or any substantIal part of ltS property, or of any or all of
the royaltIes, revenues, rents, Issues or profits thereof, or makes any general assignment for the
benefit of creditors, or admIts m wntmg Its mabIlIty to pav Its debts generally as they become
due,
(\) ReorgamzatIOn A court of competent jurIsdIctIOn enters an order,
Judgment or decree approvmg a petItIOn filed agamst Tenant seekmg any reorgamzatlOn,
dIssolution or SImIlar relIef under any present or future federal state or other statute, law or
regulatIOn relatmg to bankruptcy, Insolvency or other reheffor debtors, and such order, Judgment
or decree remams unvacated and unstayed for an aggregate of sixty (60) days from the first date
of entry thereof or any trustee receIver or hqUldator of Tenant or of all or any substantial part of
Its property, or of any or all of the royaltles, revenues, rents, Issues or profits thereof IS appomted
WIthout the consent or acqUIescence of Tenant and such appomtment remams unvacated and
unstayed for an aggregate of SIxty (60) days, such SIxty (60) day peflod to be extended In all
cases dunng any penod of a bona fide appeal dIlIgently pursued by Tenant
(VI) Attachment A wnt of executIOn or attachment or any SimIlar
process IS 1ssued or leVIed agamst all or any part of the mterest of Tenant III the Project and such
executIOn, attachment or SImIlar process IS not released, bonded, satIsfied, or vacated or stayed
wlthm SIxty (60) days after ItS entry or levy such SIxty (60) day penod to be extended durmg any
peflod of a bona fide appeal dIligently pursued by Tenant,
(vu) Transfer Tenant Transfers all or any portIOn of Tenant's mterest
III the Land, the Improvements or m th1s Lease III VIOlation of the proVISIons of ArtIcle 15 and
.
67583l
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falls to rescmd such Transfer wlthm tinrty (30) days after wntten notice from Landlord or such
(f) longer penod oftlme as Landlord may agree,
(vm) Nonmonetary OblI!:mtlOns Tenant IS m default m any other of Its
pronuses, covenants or agreements contamed herem and such default shall contmue for sixty
(60) days after Tenant receives NotIce of Breach speclfymg the particulars of such default (or
such longer tIme as Landlord may agree upon m wntmg), provided that Tenant commences to
cure the default wlthm twenty-five (25) days and thereafter prosecutes the curmg of such default
With due dIlIgence and m good faIth
16 2 Notice and Opportumty to Cure
162 1 NotIce of Breach Unless expressly provIded otherwIse m thIs Lease, no
breach by a party shall be deemed to have occurred under tins Lease unless another party first
delIvers to the nonperformmg party a wntten request to perform or remedy (the "NotIce of
Breach"), statmg clearly the nature of the oblIgatIOn whIch such nonperformmg party has faIled
to perform, and statmg the applIcable penod of time, If any, permItted to cure the default
()
1622 FaIlure to GIve Notice of Breach FaIlure to give, or delay m glvmg,
NotIce of Breach shall not constItute a WaIver of any oblIgatlOn, reqUIrement or covenant
requITed to be performed hereunder Except as otherwise expressly prOVided m thIS Lease, any
faIlure or delay by eIther party m assertmg any nghts and remedies as to aI1Y breach shall not
operate as a waiver of any breach or of any such nghts or remedIes Delay by either party m
assertmg any of ItS nghts and remedies shall not depnve such party of the nght to mstltute and
mamtam any actlOn or proceedmg which It may deem appropnate to protect, assert or enforce
any such nghts or remedIes
1623 LImIted Partners' RIght to Cure Subject to the nghts of Leasehold
Mortgagees whose lIens are semor to the City Deed of Trust ("Semor Leasehold Mortgagees"),
the lInuted partners of Tenant ("Limited Partners") shall have the nght to cure any default of
Tenant hereunder upon the same terms and condltlOns afforded to Leasehold Mortgagees
pursuant to SectlOn 1422 hereof PrOVided Landlord has been given wntten notIce of the
address for delIvery of notices to the LimIted Partners, Landlord shall delIver notice of default to
the Lumted Partners m accordance With SectIOn 14 2 1 The references to "Leasehold
Mortgagee" m SectlOns 14 2 L 14 2 2, and 16 3 shall be deemed to mclude the LimIted Partners
Nothmg contamed m thiS Section 1623 shall affect the nghts and remedies of Semor Leasehold
Mortgagees or the tImmg WIth respect to the exercise thereof
163 RemedIes Upon Default
16 3 1 Landlord's RemedIes Upon the occurrence of any Event of Default and
m addltlOn to any and all other nghts or remedies of Landlord hereunder and/or prOVided by law,
but subject m all events to the nghts and remedIes of Leasehold Mortgagees under Article 14
hereof, Landlord shall have the nght to termmate thIS Lease and/or Tenant's possessory nghts
hereunder, m accordance With applIcable law to re-enter the Land and take posseSSlOn thereof
and of the Improvements, and except as otherWIse proVIded herem, to remove all persons and
property therefrom, and to store such property at Tenant's nsk and for Tenant's account, and
()
675831
34
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Tenant shall have no further claIm thereon or hereunder In no event shall thIs Lease be treated
as an asset of Tenant after any final adjudICatIOn In bankruptcy except at Landlord's optlOn so to .
treat the same but no trustee, receIver, or hqUIdator of Tenant shall have any nght to dIsaffirm
thIS Lease
l6 3 2 RemedIes Upon Abandonment If Tenant should breach thIS Lease and
abandon the Project Landlord may, at Its option enforce all of Its nghts and remedIes under thIS
Lease, Includmg the nght to recover the rent as It becomes due hereunder AddltlOnally,
Landlord shall be entitled to recover from Tenant all costs of mamtenance and preservatlOn of
the Project, and all costs, mcludIng attorneys and receIver s fees Incurred m connectIOn With the
appomtment of and performance by a receIver to protect the Project and Landlord s mterest
under thiS Lease
16 3 3 Landlord RHmt to Contmue Lease In the event of any default under tlus
Lease by Tenant (and regardless of whether or not Tenant has abandoned the Project), thIs Lease
shall not termmate (except by an exerCIse of Landlord's nght to termmate under SectIOn 16 3 1)
unless Landlord, at Landlord's optIOn, elects to termmate Tenant's nght to possesslOn or, at
Landlord s further optlOn, by the gIvmg of any notIce (mcludmg WIthout limitatIOn any notIce
prelImmary or prerequlSlte to the bnngIng of legal proceedmgs m unlawful detamer) to term mate
Tenant's nght to posseSSIOn For so long as tills Lease contmues m effect Landlord may enforce
all of Landlord's nghts and remedIes under tills Lease, mcludmg, WIthout lIrmtatIOn the nght to
recover all rent and other monetary payments as they become due hereunder For the purposes
of thIS Lease, the followmg shall not constItute termmatlOn of Tenant's nght to posseSSlOn (a)
acts ofmamtenance or preservatIOn or efforts to relet the Project or (b) the appomtment ofa .
receiver upon IrutJatlVe of Landlord to protect Landlord's mterest under tills Lease
16 3 4 Ruzht to ImunctlOn SpeCIfic Performance In the event of a default by
Tenant under tills Lease, Landlord shall have the nght to commence an actlOn agamst Tenant for
damages mjUnctlOn and/or speCIfic performance Tenant's faIlure, for any reason, to comply
With a court-ordered mjUnctlOn or order for speCIfic performance shall constItute a breach under
thIS Lease
164 ASSIgnment of Sub rents and Other Sums Subject to the nghts of any Leasehold
Mortgagee, Tenant Irrevocably aSSIgns to Landlord the sub rents and other sums due from Project
tenants, licensees or conceSSlOnaues for the purposes and upon the terms and condItlOns set forth
below Tills asSIgnment shall not Impose upon Landlord any dutv to produce rents from the
Project, or cause Landlord to be (a) a "mortgagee m possessIOn' for any purpose, (b) responsIble
for performing any ofthe obligatIOns of the sublessor under an) sublease, or (c) responsIble for
any waste committed by subtenants or any other partIes, for any dangerous or defectIve condltlOn
of the Project, or for any negligence m the management, upkeep, repair or control of the Project
ThIS IS an absolute aSSIgnment (subject to the nghts of any and all Leasehold Mortgagees), not
an aSSIgnment for secunty onl), and Landlord's nght to subrents IS not contmgent upon, and may
be eAerclsed Without posseSSlOn of, the Project Tenant hereby authonzes Landlord, at the
electIOn of Landlord to file a UCC-1 FmancIng Statement reflectmg thIS aSSIgnment WIth the
Cahfornla Secretary of State Landlord shall proVIde all Leasehold Mortgagees for whIch
Landlord has been gIven an address for notIce purposes WIth not less than twenty (20) days' pnor .
wntten notice precedmg any enforcement by Landlord of ItS nghts to sub rents
67'831
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164 1 License Landlord confers upon Tenant a license ("License") to collect
and retaIn the subrents, Issues and profits of the Project as they become due and payable, until
the occurrence of an Event of Default Upon the occurrence of an Event of Default the License
shall be automatically revoked and, subject to any nghts of any Leasehold Mortgagee, Landlord
may collect and retam the subrents, Issues and profits Without notice and Without takmg
posseSSlOn of the Project Tills nght to collect subrents Issues and profits shall not grant to
Landlord the nght to possesslOn, except as heremafter provided, and neither Said nght, nor
ternunatlOn of the License, shall Impose upon Landlord the duty to produce subrents, Issues or
profits or to mamtam all or any part ofthe Project
16 4 2 RH!ht to Receiver FollOWing the occurrence of an Event of Default, If
Tenant fails after receipt of a Notice of Breach to cure the default Wlthm the time penod set forth
10 this Lease Landlord, at Its optlOn, may have a receiver appomted to take posseSSlOn of
Tenant's mterest 10 the Land, the Improvements and the Project With power 10 the receiver (a) to
admmlster Tenant's mterest m the Land, the Improvements and the ProJect, (b) to collect all
funds aVailable m connectIOn With the operatlOn of the Land, the Improvements and the Project,
and (c) to perform all other acts consistent With Tenant's obligatlOns under thiS Lease, as the
court deems proper Landlord s nghts under thiS SectlOn 1643 shall be subject to the nghts of
all Leasehold Mortgagees
16 5 Remedies Cumulative No remedy 10 tills Article 16 shall be conSidered
exclUSive of any other remedy, but the same shall be cumulative and shall be 10 addition to every
other remedy given hereunder or now or hereafter eXlstmg at law or 10 eqUity or by statute, and
every power and remedy given by this Lease may be exercised from time to time and as often as
occasIOn may arise or as mav be deemed expedient subject to any hmltatlOns heremabove
referred to and subject to the nonrecourse provlslOns set forth 10 Section 3 1 1
166 No ElectlOn of Remedies The nghts given 10 thiS Article 16 to receive, collect or
sue for any rent or rents, moneys or payments, or to enforce the terms, provlslOns and condltlOns
of thiS Lease, or to prevent the breach or nonobservance thereof, or the exercise of any such nght
or of anv other nght or remedy hereunder or otherwise granted or arlsmg, shall not 10 any way
affect or Imparr or toll the nght or power of Landlord upon the condltlOns and subject to the
provIsions 10 thiS Lease to termmate Tenant's nght of posseSSlOn because of any default 10 or
breach of anv of the covenants, provlSlons or conditions of thiS Lease beyond the applicable cure
penod
16 7 SurvIval of Oblit!atlOns Nothmg herem shall be deemed to affect the nght of
Landlord under Article 9 of thIS Lease to mdemmficatlOn for liabIlity arlsmg pnor to the
termmatlOn of the Lease for personal mJurles or property damage nor shall anythmg herem be
deemed to affect the nght of Landlord to eqUitable relief where such relief IS appropnate No
eXpiratIOn or termmatlOn of the Term by operatlOn oflaw, or otherwise, and no reposseSSlOn of
the Land or any part thereof shall relieve Tenant of ItS prevlOusly accrued habllItles and
obligatlOns hereunder, all of which shall survive such eXplratlOn, termmatlOn or reposseSSlOn
16 8 No WaIver Except to the eAtent that Landlord may have agreed 10 wntmg no
waiver by Landlord of any breach by Tenant of any of ItS oblIgatIOns, agreements or covenants
hereunder shall be deemed to be a Waiver of any subsequent breach of the same or any other
675831
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covenant, agreement or obhgatlOn nor shall any forbearance by Landlord to seek a remedy for
any breach by Tenant be deemed a waiver by Landlord of Its nghts or remedies With respect to
such breach
.
ARTICLE XVII
GENERAL PROVISIONS
17 1 Estoppel Certificates At any tIme and from tlme to time either party, on at least
twenty (20) days' pnor wntten request by the other party, shall dehver to the party requestmg
same a statement m wntmg certlfymg that thiS Lease IS unmodified and m full force and effect
(or If there shall have been modlficatlOns that the same IS m full force and effect as modIfied and
statmg the modlficatlOns) and the dates to whIch the Rent has been paid and statmg whether or
not, to the best knowledge of the cernfymg party, the other party IS m default m the performance
of any covenant, agreement or conditIOn contamed m thiS Lease and, If so, speclfymg each such
default of which the certlfymg party may have knowledge A prospective purchaser or
mortgagee shall be entitled to rely on a statement dehvered hereunder
17 2 QUIet Elllovment Landlord covenants and agrees that Tenant, upon paymg the
Rent and all other charges herem prOVided for and observmg and keepmg all covenants,
agreements and conditIons oftlus Lease on Its part to be observed and kept, shall qUIetly have
and enJoy the Land dunng the Term of thiS Lease WIthout lundrance or molestatIOn by anyone
clmmmg by or through Landlord, subject, however, to the exceptIOns, reservatIOns and
conditIOns of thiS Lease
17 3 Landlord's RI2:ht to Enter the Land Landlord and ItS agents may enter the Land
or the Improvements from tIme to time WIth reasonable notice, except for emergencies m which
case no notice shall be reqUIred to mspect the same, to post notices of nonresponslblhty and
Similar notIces, and to discharge Tenant's oblIgatIOns hereunder when Tenant has failed to do so
Wltlun a reasonable tlme after written notlce from Landlord
.
174 RepresentatIons of Landlord and Tenant
174 1 Tenant hereby represents and warrants that all of the followmg are true
and correct as of the EffectIve Date
(a) Tenant IS a lImited partnership, duly orgaruzed, vahdly ehlstmg and m
good standmg under the laws of the State of CalIforma,
(b) Tenant has taken all reqUIsite actIOn m connectIOn WIth the executlOn
of tins Lease and the undertakmg of the obhgatlOns set forth herem Tlus Lease
constitutes the legally valId and bmdmg obhgatlOn of Tenant, enforceable agamst
Tenant m accordance With Its terms, ehcept as It may be affected by bankruptcy,
msolvency or Similar laws or by legal or eqUItable pnnclples relatmg to or
hmltIng the nghts of contractmg parties generally, and
.
6758.>1
37
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(c) The executlOn of thIS Lease and the acceptance of the obhgatlOns set
forth herem do not VIOlate any court order or rulmg bmdmg upon Tenant or any
provIsion of any mdenture agreement or other mstrument to whIch Tenant IS a
party or may be bound Neither the entry mto nor the performance of trus Lease
wIll vlOlate, be m conflict With or constitute a default under any charter, bylaw,
partnershIp agreement, trust agreement, mortgage, deed of trust, mdenture,
contract, Judgment, order or other agreement, charge, nght or mterest apphcable
to Tenant
1742 Landlord hereby represents and warrants that all of the followmg are true
and correct as of the EffectIve Date
(a) Landlord has taken all reqUlslte actIOn m connectlOn With the
executIOn of thIs Lease and the undertakmg of the obhgatIOns set forth herem
This Lease constItutes the legally valId and bmdmg oblIgatlOn of Landlord,
enforceable agamst Landlord m accordance With Its terms, except as It may be
affected by bankruptcy, msolvency or sunIlar laws or by legal or eqUltable
pnnclples re1atmg to or hmltmg the nghts of contractmg parties generally
()
(b) The executlOn of thiS Lease and the acceptance of the obhgatlOns set
forth herem do not VIOlate any court order or rulmg bmdmg upon Landlord or any
prOVISIOn of any mdenture, agreement or other mstrument to which Landlord IS a
party or may be bound Neither the entry mto nor the performance of thiS Lease
wIll vlOlate, be m COnflIct WIth or constItute a default under any charter, bylaw,
partnershIp agreement, trust agreement, mortgage deed of trust mdenture,
contract, Judgment, order or other agreement, charge, nght or mterest apphcable
to Landlord
175
Miscellaneous
17 5 1 Severablhty If any term or prOVlSlOn of thIS Lease or the applIcatlOn
thereof to any person or CIrcumstance shall, to any extent, be held by a court of competent
JUTIsdlctlOn to be mvalId or unenforceable, the remamder of this Lease or the applIcatIOn of such
term or prOVISion to persons or CIrcumstances other than those as to whIch It IS held InvalId or
unenforceable, shall not be affected thereby, and each term and provlslOn Oft111S Lease shall be
valId and be enforced to the fullest e>..tent permItted by law
17 5 2 NotIces Except as otherWise speCIfied herem, all notices to be sent
pursuant to tlus Lease shall be made m wntmg, and sent to the PartIes at their respectIve
addresses speCIfied below or to such other address as a Party may deSIgnate by wrItten notIce
delIvered to the other partIes m accordance With thIs SectlOn All such notIces shall be sent by
(I) personal delIverv, m whIch case notIce IS effectIve upon delIvery,
(n) certIfied or regIstered mail, return receIpt requested, m wluch case notIce shall
~ be deemed delIvered on receipt If delIvery IS confirmed by a return receipt,
675831 38
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(m) natIOnally recogmzed overnight couner, With charges prepaId or charged to .
the sender's account, In whIch case notIce IS effectIve on delIvery If delIvery IS confirmed
by the delIvery servIce,
(IV) faCSimIle transmISSIOn, m wluch case notIce shall be deemed delIvered upon
transmIttal, provIded that (a) a duplIcate copy ofthe notIce IS promptly delIvered by first-
class or certIfied maIl or by overnight delIvery, or (b) a transmISSIOn report IS generated
reflecting the accurate transmISSIOn thereof Any notice gIVen by faCSimile shall be
considered to have been received on the next bUSiness day If It IS received after 5 00 P m
reCIpient s tIme or on a nonbusmess day
Landlord
CIty of Dublm
100 CIVIC Plaza
DublIn CA 94568
AttentIon Commumty Development DIrector
FacsInule (925) 829-9248
Tenant
DublIn Semor LImIted PartnershIp
c/o Eden Housmg, lnc , general partner
409 Jackson Street
Hayward CA 94544-1567
AttentIOn ExecutIve DIrector
FaCSImIle (510) 582-6523
.
With copy to (Investor LImIted Partner)
Peoples Benefit LIfe Insurance Company
c/o AEGON USA Realty AdVIsors, Inc
400 West Market Street
LOUISVIlle KY 40202
Attn Marsha HIcks Counsel
FaCSImIle (502) 560-2207
WIth a copy to
AEGON USA Realty AdVIsors Inc
600 Montgomery Street, 16th Floor
San FranCISCO, CA 94111
Attn ChrIstoph K Gabler
FaCSimIle (415) 983-5558
WIth a copy to
Carle, MackIe, Power & Ross LLP
100 B Street, SUIte 400
Santa Rosa, CA 95401
AttentIOn RIchard W Power, Esq
FaCSImIle" (707) 526-4707
.
6758..1
39
C{)
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()
--
qs- ~ \0,)
If to the SpecIal LrmIted Partner
c/o Transamenca Affordable Housmg, Inc
c/o AEGON USA Realty AdvIsors, Inc
600 Montgomery Street, 16th Floor
San FranCISCo, CA 94111
Attn David W Kunhardt,
V Ice President - CommUDlty Investments
FaCSimIle (415) 983-5558
With copy to (Leasehold Mortgagee)
CltIbank (West), F S B
F acslIrule
17 5 3 CaptlOns ConstructlOn The captlOns used for the sectlOns and articles of
this Lease are mserted for converuence only and shall not be used to construe thIS Lease The
language m all parts of thiS Lease shall be construed as a whole accordmg to Its fair meanIng
and not StrIctly for or agamst Landlord or Tenant
17 5 4 Successors and ASSigns Subject to the proVIsions hereof, thiS Lease shall
be bIndIng upon and shall mure to the benefit of the parties hereto and theIr respectIVe successors
and aSSigns, and wherever a reference m thIS Lease IS made to eIther of the parties hereto such
reference shall be deemed to Include wherever applIcable a reference to the successors and
assigns of such party, as If In every case so expressed
1755 Short Form of Lease A memorandum oflease referrIng to thiS Lease
shall be executed by Landlord and Tenant and recorded m the Office of the Alameda County
Recorder
17 5 6 GovernIng Law ThiS Lease shall be construed and enforced m
accordance WIth the laws of the State of CalIforrua
1757 Attorney's Fees Should eIther party hereto commence an actlOn agaInst
the other to enforce any obhgatlOn contaIned herem, the prevaIlIng party shall be entItled to
recover from the other party reasonable counsel fees and costs and necessary dIsbursements, as
determmed by the court havmg JurIsdlctlOn over the actlOn
17 5 8 Indemruty Includes Defense Costs In any case where either party IS
obligated under an ehpress provIsion of this Lease, to mdemrufy and to save the other party
harmless from any damage or lIabIlity, the same shall be deemed to mclude defense of the
Indemrutee by the Indemrutor, such defense to be through legal counsel reasonably acceptable to
the Indemnitee
6758j)
40
Cj(Q O-OYOS-
17 5 9 No Brokers No Thlrd-Partv BeneficIanes Landlord represents that It has
not engaged any broker or agent to represent Landlord m thIs transactIOn Tenant represents that .
It has not engaged an) broker or agent to represent Tenant m tlus transactIOn Each party agrees
to mdemnIfy and hold the other harmless from and agamst any and all lIabIlItIes or expenses,
mcludmg attorneys' fees and costs, arlSlng out of, or m connectlOn WIth claIms made by any
broker or mdIVIdual for commlSSlOns or fees as a result of the acts of the mdemmfymg party
There shall be no tlurd-party beneficIarIes to thIS Lease
17 5 10 DIsclaImer of PartnershIp LenderlBorrower RelatlOnslup The
relatlOnslup of the partIes under thIS Lease IS solely that of landlord and tenant, and It IS
expressly understood and agreed that Landlord does not as a result of thIs Lease m any way nor
for any purpose become a partner of Tenant or aJomt venturer wIth Tenant m the conduct of
Tenant's busmess or otherwIse ThIS Lease IS not mtended to, and shall not be construed to,
create the relatIOnshIp of pnncIpal and agent, partnershIp, Jomt venture, aSSOCIatIOn, or seller
and buyer as between Landlord and Tenant It IS further expressly understood and agreed that
tlus Lease IS not mtended to, and shall not be construed to create the relatIOnslup of lender and
borrower, and Landlord does not, solely as a result of tlus Lease, become a lender to Tenant
1 7 5 11 EntIre Agreement Amendments ThIS Lease contams the entIre
agreement between the partIes relatIve to the leasmg transactIOn covered hereby All prevIOUS
correspondence commUnICatIOns, dlscusslOns, agreements, understandmgs or proposals and
acceptances thereof between the partIes or theIr representatIves, whether oral or wrItten, are
deemed to have been mtegrated mto and superseded by tlus Lease and are of no further force and
effect except as expressly prOVIded m thIS Lease No amendment or modlficatlOn hereof shall be .
effectIve for any purpose unless m wrltmg SIgned by Landlord and Tenant
17 5 12 TIme IS of the Essence TIme IS of the essence of thIS Lease and of each
proVISIOn hereof
17 5 13 Counterparts ThIS Lease may be e>..ecuted m one or more counterparts,
each of whIch shall be an ongmal and all of whIch together shall constItute one and the same
mstrument
17 5 14 ActIOn bv the CltV Except as may be otherwIse speCIfically prOVIded
herem, whenever any approval, notIce, dIrectIOn consent or request by the CIty of DublIn m ItS
capaCIty as Landlord hereunder IS reqUired or permItted under thIs Lease, such actIOn shall be m
wrltmg, and such actIOn may be gIven, made or taken by the CIty Manager or by any person who
shall have been deSIgnated by the CIty Manager, WIthOUt further approval by the CIty CounCIl
In any approval consent, or other determmatIOn by Landlord reqUired hereunder, Landlord shall
act reasonably and m good faIth
SIGNATURES ON FOLLOWING PAGE
.
675831
41
q 1 CO J'Cc-
IN WITNESS WHEREOF, Landlord and Tenant have entered Into tills Lease as of the
(f) EffectIve Date
LANDLORD
CITY OF DUBLIN
By
RIchard C Ambrose,
City Manager
Attest
CIty Clerk
Approved as to form
ElIzabeth H SlIver,
CIty Attorney
()
TENANT
DUBLIN SENIOR LIMITED PARTNERSHIP
By Eden HOUSIng Inc, a Cahforrua nonprofit publIc benefit corporatIOn
Its General Partner
By
LInda MandolIm,
Executive DIrector
{)
67,831
42
92 Cf; 1cS'
1)
Exlu bIt A
.
LAND
(Attach legal descnptlOn )
.
.
675831
43
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(()
99 ao ltb
ExhI bIt B
INSURANCE REQUIREMENTS
(Attach Insurance reqUIrements)
675831
44
/DOCOJ~
.
INSURANCE REQUIREMENTS
Tenant, at Its sole cost and expense dunng the Term hereof shall keep and mamtam the
follo\\'lng polIcIes of msurance
A PropertY Insurance Insurance for the nsks of dIrect phYSICal loss, With mIillmUffi
coverage bemg the penIs msured under the standard Causes of Loss - SpecIal form (ISO Form
CP 10 30) or Its eqUlvalent, coveTIng all the Improvements, all fixtures, eqUlpment and Personal
Property, located on or m, or constItutmg a part of, the Land, m an amount equal to one hundred
percent (100%) of the full replacement cost of all such property The msurance shall ( a) cover
exploslOn of steam and pressure bOIlers and SImIlar apparatus, If any, located at the Project, and
(b) cover floods If the Land IS m a SpeCIal Hazard Area, as determmed by the Federal
Emergency Management Agency or as shown on a NatlOnal Flood Insurance Program flood
map The msurance reqUIred hereunder shall be m amounts suffiCIent to prevent Tenant from
becommg a co-msurer under the terms of the applIcable polICIes, With not more than a ThIrty-
five Thousand Dollars ($35,000) deductIble (or such hIgher deductible approved by the
Landlord, wluch approval shall not be unreasonably WIthheld) from the loss payable for any
casualty The polICIes of msurance carned m accordance WIth thIS ParalZraph A shall contam a
"replacement cost endorsement" and an "mcreased cost of constructlOn endorsement"
B LiabIlIty Insurance CommerCIal general lIabIlIty msurance on an "occurrence baSIS" .
covenng all claIms WIth respect to mJury or damage to persons or property occurnng on, m or
about the Land or the Improvements At the commencement of the Term of the Lease, and at all
tunes durmg the Term, the lllmts oflIab1l1ty under thIs Paragranh B shall be not less than Two
MIllIon Dollars ($2,000,000) combmed smgle lImIt per occurrence WIth a deductIble no greater
than Thm) -five Thousand Dollars ($35 000) or such lugher deductible as may be approved by
Landlord, whIch approval shall not be unreasonably WIthheld Upon receIpt of wntten demand
from Landlord, Tenant shall mcrease the lImIts of lIabIlIty msurance reqUIred hereunder to the
amount reqUlred by any then-exlstmg Leasehold Mortgagee or commensurate WIth that generally
carned by a maJonty of owners of other comparable projects m Alameda County, but not greater
than that requued by any then-e:XIstmg Leasehold Mortgagee The msurance shall also mc1ude
(1) coverage agamst lIabIhty for bodIly mJury or property damage arIsmg out of the
use, by or on behalf of Tenant, of any owned, non-owned, leased or lured automotIve
eqUlpment m the conduct of any and all operatlOns called for under thIS Lease,
(n) premIses and operatlOns mcludmg, Without lIffiltatlOn, bodIly mJury personal
mJury, death or property damage occurnng upon m or about the Land or the
Improvements on any elevators or any escalators therem and on, m or about the adJommg
SIdewalks, streets and passageways,
(m) broad form property damage lIabIlIty,
.
EXHIBIT B
()
CD
()
101 c-o I oS"
(IV) addltlOnallnsured and prunary msured endorsements protectmg Landlord and
Landlord's elected and appomted offiCials, officers, employees and agents, and
(v) personal illJury endorsement
C Worker's Compensation Insurance Worker s compensatlOn msurance, m the amount
reqUired under then applicable state law, covenng Tenant's employees, If any at work m or upon
the ProJect, for not less than One Hundred Thousand Dollars ($100,000) per occurrence for all
employees engaged m services or operatlons m connectlOn With the Project or the Property
Tenant shall reqUlre that any general constructlOn contract entered mto by Tenant With regard to
the mltial development of the Improvements mclude a contractual undertakrng by the general
contractor to prOVide worker's compensatlon msurance for Its employees engaged m
constructlOn of the Improvements m an amount m compliance With applicable state law
D Course of ConstructlOn Insurance Course of constructlOn msurance m the same amount
as reqUlred m Para~aph A above for property msurance, covenng all constructlon actlVlt1es on
the Land
E General Insurance ProvlslOns All poliCies of msurance proVided for m thiS Article shall
be prOVided under vahd and enforceable polICies, m such forms and amounts as herembefore
speCified Issued by msurers hcensed to do busmess m the State of Callforrua (or approved to do
busmess m Callforrua and listed on the California Department of Insurance list of Ehglble
Surplus Lmes Insurers or successor listmg) and havmg a ratmg of A-NIII or better m Best
Insurance GUlde or, If Best Insurance GUlde IS no longer m eXIstence a comparable ratmg from a
comparable ratmg servICe Pnor to the Commencement Date and, thereafter not less than tlurty
(30) days pnor to the exprratlOn date of each policy furrushed pursuant to tlus Exlublt B, Tenant
shall dehver to Landlord certIficates eVldencmg the msurance reqUlred to be camed by Tenant
under tlus Exhibit B If requested by Landlord, Tenant shall delIver wlthm fifteen (15) days
followmg such request, certified, complete caples of the msurance polICies reqUlred m thiS
Lease Insurance poliCies to be prOVided herem shall meet the follOWing
(a) Each policy of msurance obtamed pursuant to thiS Lease, other than worker's
compensanon msurance, shall contam endorsements wluch prOVide (I) a waIVer by the msurer of
the nght of subrogatlOn agamst Landlord, Tenant or any subtenant for negligence of any such
person, (11) a statement that the msurance shall not be mvalldated should any msured waive m
wntmg pnor to the loss any or all nght of recovery agamst any party for loss accrumg to the
property descnbed m the msurance policy, and (m) a prOVlSlOn that no act or OffilSSlOn of Tenant
whIch would otherwise result m forfeiture or reductlOn of the msurance therem prOVided shall
affect or limit the obligatlOn of the msurance company to pay the amount of any loss sustamed
(b) By endorsements Landlord and Its elected and appomted OffiCialS, officer
employees and agents shall be named as additional msured, as appropnate, under the liability
lllsurance reqUired to be mamtamed by Tenant hereunder
(c) Each policy reqUlred hereunder shall mclude a Notice of Cancellation or
Change m Coverage Endorsement which shall prOVide that such polIcy shall not be cancelled or
678740 I
,.-
)0(;) 9;;IC..)
matenally changed WIthout at least thIrty (30) days' pnor wntten notIce by regIstered or certIfied
mall to Landlord
.
(d) All msurance polIcIes shall provIde that there shall be no exclusIOn from
coverage for cross habIhty among the lIsted msureds
(e) Any certIficate of msurance applIcable to course of constructIOn msurance to
be mamtamed shall be deposIted WIth Landlord pnor to commencement of constructIon of any
Improvements
(f) Each polIcy shall contam an endorsement that proves that the msurance
applIes separately to each msured that IS seekmg coverage or agamst whom a claim IS made,
except With respect to the hnnts of lIabIlIty
(g) Each pollcy shall be wrItten as a pnmary pollcy not contnbutmg WIth and not
m excess of coverage that Landlord may carry
(h) Each pollcy shall expressly provIde that Landlord shall not be requlIed to gIVe
notIce of accIdents or claIms and that Landlord shall have no llabIllty for premIUms
(1) NotWlthstandmg any contrary proVIsIOn of thIS ExillbIt B, all msurance
reqUIred to be carned by Tenant under thIS ExillbIt B shall be m such amounts, WIth such
addItIonal coverages, and on such other terms as reqUIred by any Leasehold Mortgagee
F Blanket PolICIes Any msurance provIded for m thIS ExhIbIt B may be placed by a polIcy
or polICIes of blanket msurance, proVIded, however, that such polIcy or polICIes provIde that the
amount of the total msurance allocated to the Land shall be such as to furrush protectIOn the
eqUIvalent of separate polICIes m the amounts herem reqwred and proVIded further that m all
other respects any such polIcy or polICIes shall comply WIth the other prOVIsIons of tills Lease
.
G WaIver of Subr02:atIOn To the eAtent permItted by law and the polICIes of Insurance
reqUIred to be maIntamed hereunder, and Without affectmg such Insurance coverage, Landlord
and Tenant each waIve any nght to recover against the other (a) damages for mJury or death of
persons (b) damage to property, (c) damage to the Land or the Improvements or any part
thereof, or (d) claIms arlSlng by reason of any of the foregomg, to the eAtent that such damages
and/or claIms are covered (and only to the eAtent of such coverage) by msurance actually carned
by eIther Landlord or Tenant ThIS prOVIsIOn IS mtended to restnct each party (as pernntted by
law) to recover agamst Insurance carrIers to the extent of such coverage, and waIve fully, and for
the benefit of each, any nghts and/or claims whIch mIght gIve nse to a nght of subrogatIOn m
any Insurance carner
H ComplIance WIth Pohcv ReqUIrements Tenant shall observe and comply WIth the
reqUIrements of all pohcles of publIc lIabilIty, fire and other polICIes of msurance at any tIme m
force WIth respect to the Project, and Tenant shall so perform and satIsfy the reqUIrements of the
comparues writmg such polICIes that at all tImes companIes of good standmg shall be wIllmg to
wrIte or to contmue such Insurance
.
678740 1
()
()
()
)03 Cf'f-\ la::-
U
I AddItlOnal Insurance Tenant shall mamtam such addItIonal amounts or types of
Insurance as shall be reqUlred by any then-exIstmg Leasehold Mortgagee, and shall have the
nght to carry such addItIOnal Insurance as Tenant may deSire from tIme to tIme or as may be
reqUlred by any Leasehold Mortgagee
678740 I
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