{"id":41916,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/google-technology-landlord-subtenant-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"google-technology-landlord-subtenant-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/google-technology-landlord-subtenant-agreement.html","title":{"rendered":"Google Technology Landlord-Subtenant Agreement"},"content":{"rendered":"
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LANDLORD-SUBTENANT AGREEMENT <\/b><\/font><\/p> 
(Amphitheatre) <\/b><\/font><\/p> 
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THIS\nAGREEMENT (this \u0093Agreement<\/i><\/b>\u0094) is made as of the 9th day of July, 2003, between WXIII\/AMPHITHEATRE REALTY, L.L.C., a Delaware limited liability company (\u0093Landlord<\/i><\/b>\u0094), and GOOGLE TECHNOLOGY INC., a\nCalifornia corporation (\u0093Subtenant<\/i><\/b>\u0094), joined in (with respect to specified provisions) by SILICON GRAPHICS, INC., a Delaware corporation (\u0093Tenant<\/i><\/b>\u0094). <\/font><\/p> 
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WITNESSETH: <\/font><\/p> 
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WHEREAS, The Goldman Sacks Group, Inc., a Delaware corporation (\u0093GS<\/i><\/b>\u0094), and Tenant entered into that\ncertain Commercial Lease (Amphitheatre), dated December 29, 2000, as amended by Amendment thereto, dated as of April 18, 2001, which was assigned by GS to Landlord by an Assignment and Assumption, dated as of May 22, 2001, for certain premises\nlocated at 1600 Amphitheatre Parkway, Mountain View, California (the \u0093Premises<\/i><\/b>\u0094), said property being more particularly described in the said lease. <\/font><\/p> 
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WHEREAS, concurrently herewith, Tenant and Subtenant are entering into that certain Sublease Agreement dated as of the date\nhereof (the \u0093Sublease<\/i><\/b>\u0094), whereby Tenant will sublease to Subtenant, and Subtenant will sublease from Tenant, the Premises. <\/font><\/p> 
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WHEREAS, concurrently herewith, Landlord, Tenant and Subtenant are entering into that certain Second Amendment to Commercial Lease (Amphitheatre), dated\nas of the date hereof (the \u0093Second Amendment<\/i><\/b>\u0094, and the lease described in the first WHEREAS clause above, as amended as described in said WHEREAS clause and as amended by the Second Amendment, is hereinafter referred to as\nthe \u0093Amphitheatre Lease<\/i><\/b>\u0094). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings assigned to them in the Amphitheatre Lease. <\/font><\/p> 
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WHEREAS, concurrently herewith, Landlord and Subtenant are entering into that certain Nondisturbance and Attornment\nAgreement, dated as of the date hereof (the \u0093Nondisturbance Agreement<\/i><\/b>\u0094). <\/font><\/p> 
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WHEREAS, the parties intend by this Agreement to set forth their respective rights and obligations with respect to the Premises not otherwise contemplated\nin the Second Amendment or the Nondisturbance Agreement. <\/font><\/p> 
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NOW,\nTHEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: <\/font><\/p> 
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ARTICLE I <\/font><\/p> 
RIGHT OF FIRST OFFER<\/u>\n\n<\/font><\/p> 
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Section 1.1    Right of First\nOffer<\/u>. (a) At any time and from time to time during the period commencing on the date hereof and continuing until the earlier of (i) such time as this Agreement is terminated in accordance with Section 3.2 below or otherwise and (ii) December\n31, 2012 (such <\/font>\n<\/p>\n\n\n\n\n 
\nperiod, the \u0093Offer Period<\/i><\/b>\u0094), Landlord will not sell, transfer or otherwise dispose of the Interest (as such term is defined in\nExhibit A<\/u><\/b> hereto), or any portion thereof, unless it has first offered to sell the Interest, or such portion thereof, to Subtenant by written notice at an offer price to be set forth therein (the \u0093Initial Offer\nPrice<\/i><\/b>\u0094), which price will be established by Landlord in its sole discretion, together with the material terms and conditions of such proposed disposition by Landlord, including the proposed terms of closing of such disposition, such as\nthe allocation of responsibility to pay closing and title costs (an \u0093Offer<\/i><\/b>\u0094). The Offer shall indicate whether it is for the purchase of the entire Interest in the Premises or a portion thereof (the \u0093Premises\nOffered<\/i><\/b>\u0094). <\/font><\/p> 
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(b) Subtenant shall have thirty (30)\ndays (the \u0093Acceptance Period<\/i><\/b>\u0094) from the delivery of the Offer within which it may (i) deliver to Landlord a notice of its acceptance of the Offer (the \u0093OP Response<\/i><\/b>\u0094) and (ii) pay to Landlord, by\nimmediately available federal funds to an escrow account in the name of an escrow agent designated by Landlord (\u0093Escrow Agent<\/i><\/b>\u0094), TWO MILLION DOLLARS ($2,000,000), which shall represent a deposit by Subtenant on account of the\npurchase pursuant to the Offer (the \u0093OP Deposit<\/i><\/b>\u0094). The OP Response shall not be effective unless it is accompanied with the payment of the OP Deposit. <\/font><\/p> 
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(c) If the OP Response is effectively and timely delivered, and the Ground Lessor Consent and Ground Lessor Release (each as\ndefined below) shall have been delivered, Landlord shall convey title to the Premises Offered, and Subtenant shall accept and pay for the Premises Offered, at the Initial Offer Price and on the other terms and conditions set forth in the Offer. Time\nis of the essence of the performance of each of the parties\u0092 respective obligations contained herein. In the event that the sale of the Premises Offered is not consummated solely because either the Ground Lessor Consent or Ground Lessor Release\nis not delivered (notwithstanding Subtenant\u0092s compliance with Section 1.5), Landlord will promptly cause the Escrow Agent to return the OP Deposit, together with any interest accrued thereon, to Subtenant. <\/font><\/p> 
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Section 1.2    Failure to Exercise<\/u>. (a) If\nSubtenant (i) fails to deliver the OP Response to Landlord in an effective and timely manner (including payment of the OP Deposit) or (ii) expressly rejects the Offer within the Acceptance Period, then Landlord shall have the right, which shall\ncontinue until the first (1st) anniversary of the expiration of the Acceptance Period (said one year period referred to herein as the \u0093First Conveyance Period<\/i><\/b>\u0094), to sell or otherwise dispose of the Premises Offered to any\nPerson free and clear of any obligation to Subtenant pursuant to this Article I, so long as the purchase price to be paid in such sale is an amount equal to at least ninety percent (90%) of the Initial Offer Price and otherwise on terms that are in\nthe aggregate not materially more favorable to the purchaser than those contained in the Offer. <\/font><\/p> 
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(b) If the purchase price proposed to be paid by a third party for the Premises Offered during the First Conveyance Period is an amount less than ninety\npercent (90%) of the Initial Offer Price or is otherwise on terms that are in the aggregate materially more favorable to the purchaser than those contained in the Offer, then Landlord shall, by written notice to Subtenant, offer to sell the Premises\nOffered to Subtenant on the terms proposed with the third party (a \u0093Second Offer<\/i><\/b>\u0094). Upon receipt of the Second Offer from Landlord, Subtenant shall have five (5) Business Days (the \u0093Second Acceptance\nPeriod<\/i><\/b>\u0094) within which it may notify Landlord in writing of its acceptance of the Second Offer and its agreement to purchase the Premises Offered at the price and on the other <\/font><\/p> 
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\nterms set forth therein (the \u0093Second OP Response<\/i><\/b>\u0094). The Second OP Response shall not be effective unless it is accompanied with the\npayment of the OP Deposit. <\/font><\/p> 
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(c) If the Second OP Response is\neffectively and timely delivered, Landlord shall convey title to the Premises Offered, and Subtenant shall accept and pay for the Premises Offered, at the price and on the other terms and conditions set forth in the Second Offer. <\/font><\/p> 
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(d) If Subtenant (i) fails to deliver the Second OP Response to Landlord in\nan effective and timely manner (including payment of the OP Deposit), or (ii) Subtenant expressly rejects the Second Offer within the Second Acceptance Period, Landlord shall have the right, which shall continue until the one hundred and eightieth\n(180th) day following the expiration of the Second Acceptance Period (such one hundred eighty (180) day period referred to herein as the \u0093Second Conveyance Period<\/i><\/b>\u0094), to sell or dispose of the Premises Offered to any Person on\nsubstantially the same terms as were contained in the Second Offer. <\/font><\/p> 
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(e) If, at the expiration of the First Conveyance Period (unless landlord delivered a Second Offer, in which case at the expiration of the Second Conveyance Period), Landlord shall have not sold or otherwise disposed of the Premises Offered\non substantially the same terms as were contained in the Offer, or the Second Offer, as the case may be, Subtenant\u0092s rights under Section 1.1 (subject to the limitations expressed herein) will be reinstated, and Landlord\u0092s right to sell\nthe Premises Offered shall be subject again to this Article I. <\/font><\/p> 
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Section 1.3    Limitations on Right of First Offer<\/u>. Subtenant\u0092s rights under this Article I are subject to the terms of Article III. <\/font><\/p> 
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Section 1.4    Default under Option Voids Right of First Offer<\/u>. Subtenant\u0092s rights under\nthis Article I shall be void and of no further force and effect if Subtenant shall have exercised the Option as set forth in Article II below and shall have subsequently defaulted in its obligation to close pursuant thereto. <\/font><\/p> 
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Section 1.5    Subtenant to Cooperate<\/u>. Subtenant\nagrees that, at Landlord\u0092s request, Subtenant shall cooperate with Landlord in Landlord\u0092s attempt to obtain the Ground Lessor Consent and Ground Lessor Release. <\/font><\/p> 
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ARTICLE II <\/font><\/p> 
PURCHASE OPTION<\/u> <\/font><\/p> 
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Section\n2.1    Grant of Option<\/u>. Landlord hereby grants to Subtenant an option (the \u0093Option<\/i><\/b>\u0094) to acquire the Interest in accordance with and subject to the terms and conditions set forth herein, including\nthis Article II and Articles III, IV and V and Exhibit A. <\/font><\/p> 
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Section 2.2    Notice of Exercise<\/u>. Subtenant may exercise the Option only by <\/font><\/p> 
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(a) sending to Landlord written notice of Subtenant\u0092s exercise (a \u0093Notice of Exercise<\/i><\/b>\u0094) within the thirty (30) day period\nimmediately prior to the earlier of (i) May 1, 2006 and (ii) the final day of the thirtieth (30th) month following the Sublease Commencement Date for the Building 42 Sublease Premises (as such terms are defined in the Sublease) (the\n\n\u0093Option Period<\/i><\/b>\u0094) <\/font><\/p> 
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\nwhich notice, to be effective, must set forth the date (the \u0093Option Closing Date<\/i><\/b>\u0094) for the conveyance of the Interest by Landlord to\nSubtenant (the \u0093Option Closing<\/i><\/b>\u0094), which Option Closing Date shall be not less than thirty (30) nor more than forty-five (45) days after the date of service of the Notice of Exercise; provided<\/u>, however<\/u>, that each\nof Landlord and Subtenant will have the right to extend the closing date beyond the date set forth in the Notice of Exercise (but each party\u0092s extension may not be for more than thirty (30) days in the aggregate), by delivering written notice\nof such extension to the other party, and <\/font><\/p> 
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(b) paying to\nLandlord, in immediately available federal funds, TWO MILLION DOLLARS ($2,000,000), which shall represent a deposit by Subtenant on account of the purchase pursuant to the Option (the \u0093Option Deposit<\/i><\/b>\u0094), and Landlord shall,\nwithin two (2) business days after the receipt of the Option Deposit, deliver such payment into an escrow which shall be established by Landlord with such title company any or other escrow agent as Landlord shall designate (with reasonably prompt\nnotice thereafter to Subtenant). <\/font><\/p> 
Unless Subtenant shall deliver the Notice of Exercise together with the Option Deposit within the periods described in\nthis Section 2.2, the Option shall become void and of no further force or effect. Time is of the essence of the performance of each of the parties\u0092 respective obligations contained herein. <\/font><\/p> 
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Section 2.3    Purchase Price<\/u>. At the Option\nClosing, as a condition thereof, Subtenant shall pay Landlord, as the purchase price for the Interest, ONE HUNDRED AND SEVENTY MILLION DOLLARS ($170,000.000) (the \u0093Option Price<\/i><\/b>\u0094), which shall be payable by immediately\navailable federal funds. The parties will effect the Option Closing through the escrow contemplated in Section 2.2(b) hereof. <\/font><\/p> 
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Section 2.4    Default under First Offer Voids Option<\/u>. The Option shall be void and of no further force and effect if Subtenant\nshall have accepted an Offer or a Second Offer as set forth in Article I above and shall have subsequently defaulted in its obligation to close pursuant thereto. <\/font><\/p> 
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ARTICLE III <\/font><\/p> 
LIMITATIONS ON OPTION AND TERMINATION<\/u> <\/font><\/p> 
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Section\n3.1    Limitations on Option and Right of First Offer<\/u>. (a) Subtenant\u0092s rights under Articles I and II, and any title to be conveyed by Landlord thereunder, are and shall be subject and subordinate in all respects to\neach of the following: <\/font><\/p> 
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(i)    that\ncertain Ground Lease dated as of March 7, 1995, between the City of Mountain View, a municipal corporation, as landlord (the \u0093Ground Lessor<\/i><\/b>\u0094), and Silicon Graphics Real Estate, Inc. (the \u0093Original Ground\nTenant<\/i><\/b>\u0094), a memorandum of which was recorded March 8, 1995 in the Original Records of Santa Clara County, as assigned by the Original Ground Tenant to GS by Assignment and Assumption of Ground Lease, dated as of December 29, 2000, which\nAssignment was recorded January 2, 2001, as assigned by GS to Landlord, by Assignment and Assumption of Ground Lease (Amphitheatre), dated as of May 22, 2001, and recorded June 6, 2001, as amended by First Amendment to Ground Lease (Amphitheatre)\ndated as of May 22, 2001 among Ground Lessor, GS and Landlord (collectively, the \u0093Ground Lease<\/i><\/b>\u0094), <\/font><\/p> 
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(ii)    the Amphitheatre Lease, <\/font><\/p> 
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(iii)    the Sublease, <\/font><\/p> 
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(iv)    liens, encumbrances, defects or any other title\nmatter or claims, if any, granted or permitted to be granted by Subtenant or Tenant, or any Person claiming by, through or under Subtenant or Tenant, or arising from any act or omission of Subtenant or Tenant, or any matter consented to by Subtenant\nor any agreement between Landlord and Subtenant, and any matter that does not materially and adversely affect the value of, or, as reasonably determined by Subtenant, Subtenant\u0092s use of the Premises, and <\/font><\/p> 
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(v)    the Permitted Exceptions (as defined below).\n\n<\/font><\/p> 
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(b) Without limiting the effect of Section 3.l(a)(i),\nSubtenant\u0092s rights under Articles I and II are subject to approval from the Ground Lessor and any Governmental Authority (as herein after defined) having jurisdiction over the Ground Lease whose approval is required under applicable law.\n<\/font><\/p> 
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(c) Subtenant\u0092s rights under Articles I and II shall be\nvoidable, at the sole option of Landlord, if, <\/font><\/p> 
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(i)    an Event of Default by Subtenant under the Sublease exists or Subtenant is in default in its obligations under Section 1.6(h)(iii) of the Second Amendment, (a) either at the time of exercise of the Option or at\nthe time of the closing pursuant to said Option, in the case of Subtenant\u0092s rights under Article II or (b) either at the time of acceptance of the Offer or Second Offer, as applicable, or at the time of the closing pursuant to such accepted\nOffer or Second Offer, as applicable, in the case of Subtenant\u0092s rights under Article I, or <\/font><\/p> 
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(ii)    (A) with respect to Subtenant\u0092s rights under Article II: <\/font><\/p> 
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(x) at any time prior to Option Closing Date, Subtenant shall have assigned its interest under the Sublease or <\/font><\/p>\n\n
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(y) as of the exercise of the Option or as of the Option Closing Date,\nmore than 75% of the rentable area of the premises demised under the Sublease shall be subject to sub-sublease(s), and <\/font><\/p> 
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(B) with respect to Subtenant\u0092s rights under Article I, <\/font><\/p> 
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(x) Subtenant shall have assigned its interest under the Sublease or <\/font><\/p> 
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(y) as of the time that Landlord proposes to market its Interest (as evidenced by a notice from Landlord to Subtenant),\nmore than 50% of the rentable area of the premises demised under the Sublease shall be subject to sub-sublease(s); in that event, Landlord shall not be required to comply with Article I for a period of one year following the giving of such\n<\/font><\/p> 
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\nnotice and Landlord\u0092s obligation to comply with Article I shall again be determined by reference to this clause (B), as well as the other provisions of\nthis Agreement, at the end of such one-year period. <\/font><\/p> 
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In\ndetermining the applicability of this clause (ii): <\/font><\/p> 
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(w) an\nevent or circumstance shall be characterized as an assignment by Subtenant if the same constitutes an assignment under the Amphitheatre Lease, as modified by the Second Amendment (subject, however, to clauses (x), (y) and (z) below); <\/font><\/p> 
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(x) subleases to \u0093Approved Users\u0094, as defined in and to the\nextent permitted under the Second Amendment, shall not be considered as a sublease by Subtenant; <\/font><\/p> 
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(y) neither (i) a sale of Subtenant\u0092s stock pursuant to an initial public offering, as described in Section 1.8(c)(i) of the Second Amendment nor\n(ii) any of the transactions described in Section 1.8(c)(ii) of the Second Amendment shall be considered as an assignment or sublease by Subtenant; <\/font><\/p> 
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(z) an assignment to a \u0093Successor Entity as defined by and in accordance with the terms of Section 15.7(b) of the Amphitheatre Lease shall not be\nconsidered an assignment or sublease by Subtenant. <\/font><\/p> 
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(d)\nNotwithstanding anything to the contrary herein, the provisions of Article I shall not apply to (i) any sale, assignment or conveyance of the Premises in foreclosure (or similar proceeding) of a mortgage or deed of trust or any assignment or\nconveyance in lieu of foreclosure thereof, and any such sale, assignment or conveyance shall extinguish all of Subtenant\u0092s rights under Articles I and II, or (ii) any sale, assignment or conveyance of the Interest to a person or entity directly\nor indirectly controlling, controlled by or under direct or indirect common control with, or any general partner or managing member in, Landlord, provided<\/u> that any such sale, assignment or conveyance shall not extinguish Subtenant\u0092s\nrights under Articles I and II, which shall continue subject to the terms hereof. <\/font><\/p> 
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Section 3.2    Termination of Rights Upon Third Party Sale<\/u>. In the event that Landlord consummates the sale of the Premises Offered to a third party following Subtenant\u0092s rejection or\ndeemed rejection of an Offer or Second Offer, so long as Landlord has complied with the requirements hereof, Subtenant\u0092s rights under Article I automatically shall terminate and be of no further force or effect. From time to time, at\nLandlord\u0092s request, Subtenant will promptly execute, acknowledge and deliver to Landlord an instrument in recordable form confirming the status of Subtenant\u0092s rights under Articles I and II, and, without limiting the foregoing,\nconcurrently with any sale or circumstance described above in this Section 3.2, confirming the termination of Subtenant\u0092s rights under Article I. <\/font><\/p> 
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Section 3.3    Subordination<\/u>. (a) This Agreement, and each of the rights created or granted herein, is subject and subordinate\nto each of the liens, security interests, mortgages, deeds of trust charges, claims, encumbrances, pledges or other similar encumbrances or financing arrangements that are Permitted Exceptions. <\/font><\/p> 
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(b) \u0093Permitted Exceptions<\/i><\/b>\u0094 mean: <\/font><\/p> 
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(1) each of the title matters set form in the title insurance commitment for the Premises or the\nPremises Offered, as the case may be, attached to this Agreement as Exhibit B<\/u><\/b> (the \u0093Commitment<\/i><\/b>\u0094) and any additional liens or related title exceptions securing or relating to indebtedness incurred by Landlord\nafter the date of the Commitment in connection with a refinancing or replacement of existing debt and in accordance with the terms of this Agreement; provided<\/u> that, at the Option Closing, Landlord shall deliver to Subtenant the Interest free\nand clear of any lien in respect of indebtedness for borrowed money; <\/font><\/p> 
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(2) the state of facts set forth in the land survey of the Premises or the Premises Offered, as the case may be, described in the Commitment or that an accurate survey as of the date hereof would disclose; <\/font><\/p> 
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(3) all laws, regulations and ordinances including all environmental,\nbuilding and zoning restrictions affecting the Premises Offered or the ownership, use or operation thereof adopted by any agency, bureau, commission, court, department, official, political subdivision, tribunal or other instrumentality of any\ngovernment, whether federal, state or local, domestic or foreign (a \u0093Governmental Authority<\/i><\/b>\u0094) having jurisdiction over the Premises Offered or the ownership, use or operation thereof, and all amendments or additions thereto\nnow in effect or that may be in force and effect on the Closing Date; <\/font><\/p> 
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(4) all unpaid personal property, real estate and excise taxes, and all water, sewer, utility, trash and other similar charges, in each case that are not yet due and payable as of the Closing Date but may become or give rise to a lien on\nall or any portion of the Premises Offered (it being understood that such items may be subject to apportionment at the Closing); <\/font><\/p> 
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(5) each lease and other agreement for the present or future use or occupancy of any space at the Premises Offered; <\/font><\/p> 
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(6) any liens, encumbrances or other defects or exceptions to title caused\nby Subtenant or Tenant or any of their respective affiliates, by any of their respective agents, employees or other representatives, or by Landlord or any of its affiliates or any of their respective agents, employees or other representatives at\nSubtenant\u0092s prior written request. <\/font><\/p> 
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Section\n3.4    No Merger<\/u>. The purchase of the Interests under either of the Option or the right of first offer shall not effect a merger of any of the estates of Landlord, Tenant or Subtenant with respect to the Premises.\n\n<\/font><\/p> 
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ARTICLE IV <\/font><\/p> 
CLOSING UNDER THE OPTION<\/u> <\/font><\/p> 
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Section 4.1    Generally: Apportionments<\/u>. (a) Except as may otherwise be expressly provided in this Article IV, this provisions\nof this Article IV shall apply exclusively to the Option Closing (and not to any closing as a result of a transaction between Landlord and Subtenant under Article I). <\/font><\/p> 
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(b) In connection with a purchase by Subtenant pursuant to the Option, the following income and expenses shall be\napportioned between Landlord and Subtenant in the manner customary <\/font><\/p> 
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\nin the city and state in which the Premises is located, as of 11:59 p.m. on the day preceding the Option Closing Date, and the parties agree to make the\nappropriate adjustment payment on the Option Closing Date to the extent the same may be applicable: real property taxes and assessments; personal property taxes; fuel oil; utility charges; water meter and sewer rents, rates and charges; levies;\nlicense and permit fees; parking revenues; license, permit and inspection fees; rents and any other amounts due from Tenant and any other tenants pursuant to leases (accrued and prepaid); and any other items which otherwise are customarily\napportioned at real estate closings. <\/font><\/p> 
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(c) If any of the\namounts to be apportioned under Section 4.1(b) is not readily determinable as of the Option Closing Date, then, to the extent necessary, apportionments shall be based on the parties\u0092 reasonable estimate thereof. Any errors or omissions in\ncomputing apportionments shall be corrected promptly after the same are discovered. Apportionments made on the basis of estimates shall be recalculated as soon as possible and any underpayment or overpayment by either Landlord or Subtenant shall be\nadjusted by suitable payment in cash as soon as possible thereafter. The obligations of this Section 4.1(c) shall survive the Option Closing. <\/font><\/p> 
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Section 4.2    Payment of Expenses, Transfer Taxes etc<\/u>. Except as otherwise provided in this Section 4.2 and any other\nprovision hereof, each party shall be responsible for its own costs and expenses, including its own attorneys\u0092 fees. If the Option Closing shall occur, Landlord shall pay the premiums in respect of CLTA leasehold title insurance coverage, and\nSubtenant shall pay the premiums for all other title insurance coverage (including endorsements) that Subtenant may request, as well as the cost of any survey it may obtain. Neither Landlord nor Subtenant shall be obligated to pay any fee or payment\nthat may be required to obtain the Ground Lessor Consent or Ground Lessor Release, provided<\/u> that Landlord and Subtenant, shall each pay 50 percent of any amounts payable to Ground Lessor in reimbursement of or compensation for Ground\nLessor\u0092s costs in considering the request to deliver the Ground Lessor Consent and Ground Lessor Release. Any transfer taxes owed by reason of the conveyance of the Interest pursuant to the Option shall be paid either by Landlord or Subtenant,\nor shared, in accordance with the prevailing custom in the city, county and state in which the Premises is located. Subject to the foregoing, Landlord and Subtenant shall take any and all actions necessary in order to comply with the provisions of\ntransfer tax laws and regulations applicable to this Agreement or the conveyance of Interest, including the preparation, execution and filing of any and all affidavits and questionnaires required by any such law or regulation. <\/font><\/p> 
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Section 4.3    Landlord\u0092s Title and Other\nMatters<\/u>. At the Option Closing, Landlord shall deliver to Subtenant an assignment (the \u0093Assignment<\/i><\/b>\u0094), with covenant only against grantor\u0092s acts, in recordable form conveying title to the Interest subject to those\nmatters described in Sections 3.1 and 3.3 hereunder. The Premises shall be conveyed \u0093AS IS\u0094, \u0093WHERE IS\u0094, without any warranty, representation or recourse, expressed or implied, of any type whatsoever (except as aforesaid or as\ndescribed below), all of which are hereby expressly disclaimed. At the Option Closing, Subtenant shall execute and deliver to Landlord a general release from any liabilities and obligations in respect of the Interest or the Premises arising from and\nafter the date of the Option Closing (except to the extent that the liabilities or obligations arise out of a written agreement with Subtenant that expressly survives the Option Closing), whether arising under statute, law or equity, and Subtenant\nwill expressly waive the benefits of Section 1542 of the California Civil Code (or any similar provision or principle of law). <\/font><\/p> 
 <\/font><\/p>\n\n 
8 <\/font><\/p>\n\n\n\n\n\n 
Section 4.4    Other Closing Payments and Deliveries<\/u>. (a) At the Option\nClosing, Landlord shall (i) execute, deliver or cause to be delivered to Subtenant or its designee an affidavit of Landlord stating its U.S. taxpayer identification number and that it is a \u0093United States person\u0094, as defined by Section\n7701(a)(30) of the Internal Revenue Code of 1986, as amended, and equivalent affidavits required under the law of the State of California, (ii) execute, deliver or cause to be delivered to Subtenant or its designee a certificate dated as of the\nClosing Date certifying that each of the representations and warranties of Landlord contained in this Agreement is true and correct in all material respects as if remade on and as of the Closing Date, (iii) deliver evidence reasonably satisfactory\nto Subtenant of the termination of service contracts entered into by Landlord with third parties in respect of the premises, except for such contracts that are terminable on less than thirty (30) days\u0092 notice without any substantial termination\npayment, (iv) to the extent assignable to Subtenant under law and without undue burden or cost to the Landlord, execute and deliver an assignment to Subtenant of permits or licenses necessary for the use or operation of the Premises that are issued\nto or held by the Landlord, (v) to the extent assignable to Subtenant, execute and deliver an assignment to Subtenant of the letter of credit issued on behalf of Tenant to Landlord pursuant to the Amphitheatre Lease, subject to any prior drawings\nthereunder or other exercise of rights in respect thereof by Landlord, and (vi) deliver to Subtenant any letter any letter of credit issued on behalf of Subtenant and held by Landlord in respect of the Sublease, subject to any prior drawings\nthereunder or other exercise of rights in respect thereof by Landlord or Tenant. <\/font><\/p> 
 <\/font><\/p> 
(b) At the Option Closing, Subtenant (i) shall pay the Option Price as provided for in Section 2.3, adjusted in accordance herewith, (ii) shall order that the Option Deposit plus any interest accrued thereon be\ncredited against the Option Price, and (iii) shall execute and deliver to Landlord a certificate dated as of the Closing Date certifying that each of the representations and warranties of Subtenant contained in this Agreement is true and correct in\nall material respects as if remade on and as of the Closing Date. <\/font><\/p> 
 <\/font><\/p> 
(c) At the Option Closing, Landlord and Subtenant, as applicable, shall take such actions and execute and deliver all such other documents or instruments as may be customary and commercially reasonable in order to consummate the\ntransactions contemplated by this Agreement; provided<\/u> that, neither party will be required to deliver any additional documents, agreements or instruments that increase, or could increase, in any material respect such party\u0092s obligations\nor actual or potential liabilities in connection with the transfer contemplated herein. <\/font><\/p> 
 <\/font><\/p> 
Section 4.5    Conditions Precedent to the Obligation of Subtenant to Close<\/u>. The obligation of Subtenant to consummate the Option Closing will be subject to the fulfillment, or the waiver by\nSubtenant, of each of the following conditions on or prior to the Option Closing Date (the date of any such consummation, the \u0093Closing Date<\/i><\/b>\u0094): <\/font><\/p> 
 <\/font><\/p> 
(a) Landlord shall have delivered or caused to be delivered the documents and instruments that it is required to deliver\npursuant to Sections 4.3 and 4.4. <\/font><\/p> 
 <\/font><\/p> 
(b) A nationally recognized\ntitle insurance company selected by Landlord and reasonably satisfactory to Subtenant shall be willing to issue, subject to receipt of the premiums therefor and recordation of the Assignment, an ALTA (or comparable) leasehold title insurance policy\ninsuring the interest of Subtenant or its designee in the Premises subject only to the Permitted <\/font><\/p> 
 <\/font><\/p>\n\n 
9 <\/font><\/p>\n\n\n\n\n\n 
\nExceptions and such other matters as are described in Sections 3.1 and 3.3, and any other liens or encumbrances identified to Subtenant prior to the date on\nwhich Subtenant delivered its Notice of Exercise, so long as Landlord did not cause such liens or encumbrances. <\/font><\/p> 
 <\/font><\/p> 
(c) All necessary transfer tax reports and related instruments required to be filed with any Governmental Authority in connection with the transfer of the\nPremises to the extent the same are to be completed by Landlord (subject to Subtenant\u0092s performance of its obligations under Section 4.2). <\/font><\/p> 
 <\/font><\/p> 
(d) The representations and warranties of Landlord in Section 6.1 shall be true and correct in all material respects as of the Closing Date. <\/font><\/p>\n\n
 <\/font><\/p> 
(e) Provided that the Amphitheatre Lease is still in effect, Tenant shall\nhave delivered an estoppel certificate from the Tenant in respect of the Amphitheatre Lease in the form required to be delivered under the Amphitheatre Lease, provided<\/u> that this condition shall be deemed satisfied so long as Tenant does not\nallege any material default on the part of Landlord under the Amphitheatre Lease; provided<\/u> further<\/u>, that in lieu of such estoppel certificate, Landlord shall have the right to deliver an indemnity in form and substance reasonably\nsatisfactory to Subtenant from a sufficiently (in Subtenant\u0092s reasonable discretion) creditworthy entity as to the absence of any such material default. <\/font><\/p> 
 <\/font><\/p> 
Section 4.6    Conditions Precedent to the Obligation of Landlord to Close<\/u>. The obligation of Landlord to consummate the\ntransactions contemplated herein is subject to fulfillment or waiver by Landlord of each of the following conditions on or prior to the Closing Date: <\/font><\/p> 
 <\/font><\/p> 
(a) Subtenant shall have delivered the Offer Price in the amount and form required herein and shall have otherwise executed and delivered the documents\nand instruments that it is required to deliver pursuant to Sections 4.3 and 4.4. <\/font><\/p> 
 <\/font><\/p> 
(b) All consents, waivers, approvals and authorizations necessary to enable Subtenant to consummate the transactions contemplated hereby shall have been obtained. <\/font><\/p> 
 <\/font><\/p> 
(c) The representations and warranties Subtenant in Article 6 shall be true\nand correct in all material respects as of the Closing Date. <\/font><\/p> 
 <\/font><\/p> 
(d) Ground Lessor shall have delivered to Landlord Ground Lessor\u0092s irrevocable, unconditional written consent to Subtenant\u0092s acquisition of the Interest (the \u0093Ground Lessor Consent<\/i><\/b>\u0094) and release of GS,\nLandlord and its affiliates from liability or obligation under the Ground Lease and the Guaranties accruing from and after the closing date of the sale under Article I or II hereof (the \u0093Ground Lessor Release<\/i><\/b>\u0094); as used\nherein, \u0093Guaranties<\/i><\/b>\u0094 shall mean, collectively, the (i) Guaranty, dated May 22, 2001, by GS, as guarantor in favor of Ground Lessor, and (ii) the Guaranty, dated May 22, 2001, by Whitehall Parallel Real Estate Limited\nPartnership XIII, a Delaware limited partnership, Whitehall Parallel Real Estate Limited Partnership XIV, a Delaware partnership, Whitehall Street Real Estate Limited Partnership XIII, a Delaware limited partnership, Whitehall Street Real Estate\nLimited Partnership XIV, a Delaware limited partnership, collectively, as guarantor, in favor of Ground Lessor. <\/font><\/p> 
 <\/font><\/p>\n\n 
10 <\/font><\/p>\n\n\n\n\n\n 
Section 4.7    Representations and Warranties<\/u>. Each party agrees that, unless\nsuch party shall otherwise notify the other party prior to the Option Closing, the representations and warranties set forth in Article VI hereof shall also be true and correct in all material respects as of the Option Closing and that it shall not\ntake any action that would cause any of its representations and warranties to be incorrect in any material respect as of the Option Closing. <\/font><\/p> 
 <\/font><\/p> 
ARTICLE V <\/font><\/p> 
RENEWAL OPTIONS IN FAVOR OF\nSUBTENANT<\/u> <\/font><\/p> 
 <\/font><\/p> 
Section 5.1    Renewal\nOptions<\/u>. (a) Upon the expiration of the Amphitheatre Lease in accordance with its terms (or if the Amphitheatre Lease shall have been previously terminated by reason of Tenant\u0092s default thereunder and the Sublease shall have become a direct\nlease between Landlord and Subtenant subject to and in accordance with the Nondisturbance Agreement, then upon the expiration of the Sublease Term, as defined in the Sublease, in accordance with its terms), Subtenant shall have the option (the\n\n\u0093First Renewal Option<\/i><\/b>\u0094) to extend the Sublease Term for a period of five (5) years, commencing on January 1, 2013 and expiring on December 31, 2018 (the \u0093First Renewal Term<\/i><\/b>\u0094) on the terms and\nconditions set forth in this Article V. Upon the exercise of the Renewal Option in respect of the First Renewal Term in accordance with the terms of this Article V and the commencement of the First Renewal Term, the Sublease shall become a direct\nlease between Landlord and Subtenant subject to and in accordance with the Nondisturbance Agreement (unless it shall have previously so become a direct lease in the manner described in the parenthetical of the first sentence of this Section 5.1(a)),\nand Tenant shall not be liable for the obligations of the Subtenant under the Sublease arising during the renewal terms. <\/font><\/p> 
 <\/font><\/p> 
(b) If Subtenant effectively exercised the First Renewal Option, Subtenant shall have a second option (the \u0093Second Renewal Option<\/i><\/b>\u0094\nand, together with the First Renewal Option, the \u0093Renewal Options<\/i><\/b>\u0094) to extend the Sublease Term for a period of five (5) years, commencing on January 1, 2019 and expiring on December 3l, 2024 (the \u0093Second Renewal\nTerm<\/i><\/b>\u0094 and, together with the First Renewal Term, the \u0093Renewal Terms<\/i><\/b>\u0094). <\/font><\/p> 
 <\/font><\/p> 
Section 5.2    Manner of Exercise<\/u>. Each Renewal Term must be exercised, if at all, as to the entire Premises delivered by\nTenant to Subtenant pursuant to the Sublease. Each Renewal Option must be exercised, if at all, by written notice from Subtenant to Landlord given not less than twelve (12) months prior to the expiration of the original Sublease Term (in the case of\nthe First Renewal Term), and not less than twelve (12) months prior to the expiration of the First Renewal Term (in the case of the Second Renewal Term). <\/font><\/p> 
 <\/font><\/p> 
Section 5.3    Terms of Renewal<\/u>. Each Renewal Term shall be upon the same terms and conditions as the original Sublease Term,\nexcept that the Renewal Options shall be limited as stated in this Article V to two (2) successive 5-year terms and except that the Base Rent applicable to the relevant Renewal Term shall be equal to the Prevailing Market Rent as of the commencement\nof that Renewal Term, as determined pursuant to Exhibit D<\/u><\/b>. <\/font><\/p> 
 <\/font><\/p>\n\n 
11 <\/font><\/p>\n\n\n\n\n\n 
Section 5.4    Limitations on Renewal Rights<\/u>. Subtenant\u0092s rights under\nthis Article V are subject to the following: <\/font><\/p> 
 <\/font><\/p> 
(a)\nSubtenant\u0092s rights under Article V shall be void, at the sole option of Landlord, if an Event of Default by subtenant under the Sublease exists, either at the time of exercise of the Renewal Option or at the commencement of the Renewal Term in\nquestion. <\/font><\/p> 
 <\/font><\/p> 
(b) Subtenant\u0092s rights under Section 5.1(b)\nshall be void, at the sole option of Landlord, if <\/font><\/p> 
 <\/font><\/p> 
(i)\nSubtenant shall have assigned its interest under the Sublease, or <\/font><\/p> 
 <\/font><\/p> 
(ii) either at the time of exercise of the Second Renewal Option or at the commencement of the Second Renewal Term, more than 75% of the rentable area of the premises demised under the Sublease shall be subject to sub-sublease(s), and the\nprovisions of clauses (w) through (z) of Section 3.1(c)(ii) shall be utilized in determining the applicability of this clause (ii). <\/font><\/p> 
 <\/font><\/p> 
(c) Subtenant\u0092s rights under this Article V are further subject and subordinate to the provisions of Article III. <\/font><\/p> 
 <\/font><\/p> 
(d) Subtenant\u0092s rights under this Article V shall be void and of no\nfurther force and effect if Subtenant shall have exercised its right of first offer as set forth in Article I above or the Option as set forth in Article II above and in either case shall have subsequently defaulted in its obligation to close\npursuant thereto. <\/font><\/p> 
 <\/font><\/p> 
Section\n5.5    Tenant\u0092s Relinquishment of its Renewal Rights<\/u>. Tenant hereby relinquishes the renewal options set forth in Section 3.2 of the Lease, such that said Section 3.2 is deemed deleted from the Lease from and after\nthe date hereof as if it were never included in the Lease. Tenant is executing this Agreement to acknowledge this Section 5.5. <\/font><\/p> 
 <\/font><\/p> 
ARTICLE VI <\/font><\/p> 
 <\/font><\/p> 
Section 6.1    Representations and Warranties<\/u>. Each party hereby represents and warrants to the other as of the date hereof as\nfollows: <\/font><\/p> 
 <\/font><\/p> 
(a) Authority, Binding Obligation, Etc<\/u>.\nSubject to the matters described in Article III, (i) such party has the full right, power, capacity and authority to execute and deliver this Agreement and to perform its obligations under Articles II and IV, and (ii) this Agreement has been duly\nand validly executed and delivered by such party and constitutes its legal, valid and binding agreement, enforceable against such party in accordance with its terms, except as such enforcement may be limited by bankruptcy, conservatorship,\nreceivership, insolvency, moratorium or similar laws affecting creditors\u0092 rights generally, and to general principles of equity. <\/font><\/p> 
(b)\n\nLitigation<\/u>. Except as disclosed on Schedule 1<\/u>, such party is not a party to any pending litigation or proceeding by any Person against such party with respect to, or against or <\/font><\/p> 
 <\/font><\/p>\n 
12 <\/font><\/p>\n\n\n\n\n\n 
\npotentially affecting the performance of its obligations under this Agreement, nor has any such action been threatened against such party in writing.\n\n<\/font><\/p> 
 <\/font><\/p> 
(c) Insolvency<\/u>. There are no attachments, executions\nor assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy, or under any other debtor relief laws, contemplated by or pending or threatened against such party. <\/font><\/p> 
 <\/font><\/p> 
Section 6.2    Landlord Estoppel<\/u>. Concurrently\nherewith, Landlord is executing and delivering an estoppel in substantially the form attached hereto as Exhibit C<\/u><\/b>. <\/font><\/p> 
 <\/font><\/p> 
Section 6.3    Landlord Covenant<\/u>. Landlord will use reasonable diligent efforts to cause Ground Lessor to deliver to Subtenant,\nas soon as reasonably possible following the date of this Agreement, a subordination, nondisturbance and attornment agreement in form and substance reasonably satisfactory to Subtenant, provided<\/i> that neither Landlord nor Subtenant shall have\nany obligation to pay any fee or other payment that may be required to obtain such an agreement, except as provided in Section 7.8(b) below. <\/font><\/p> 
 <\/font><\/p> 
Section 6.4    Subtenant Recordation<\/u>. At Subtenant\u0092s request, Landlord will promptly execute, acknowledge and deliver to\nSubtenant the Memorandum of Recordation in the form attached hereto as Exhibit E<\/u><\/b>. <\/font><\/p> 
 <\/font><\/p> 
ARTICLE VII <\/font><\/p> 
MISCELLANEOUS<\/u> <\/font><\/p> 
 <\/font><\/p> 
Section 7.1    Effectiveness<\/u>. This Agreement shall come into full force and effect upon (i) the\ndelivery of a written approval of the Second Amendment by the current holder of the loan (\u0093Lender\u0094) made pursuant to that certain Loan Agreement, dated as of July 2, 2002 (the \u0093Loan Agreement\u0094), by and between Landlord and German\nAmerican Capital Corporation pursuant to Sections 8.7 and 20.2.2 of the Loan Agreement and (ii) the delivery by Lender to Subtenant of a nondisturbance and attornment agreement in form and substance reasonably satisfactory to Subtenant (the latter\nof such two deliveries, the \u0093Effective Date<\/i><\/b>\u0094). If the Effective Date shall have not occurred on or before July 31, 2003, then this Agreement, as well as the Second Amendment and the Sublease, shall terminate except for such\nprovisions as by their terms are intended to survive. <\/font><\/p> 
 <\/font><\/p> 
Section\n7.2    Termination<\/u>. Upon the termination of the Sublease, including but not limited to by reason of Subtenant\u0092s default thereunder, this Agreement and the rights and options granted hereby shall automatically\nterminate and be of no further force or effect. Concurrently with such termination, and any time subsequent thereto, Subtenant agrees that it will promptly execute, acknowledge and deliver to Landlord an instrument in recordable form confirming the\ntermination of Subtenant\u0092s rights hereunder. <\/font><\/p> 
 <\/font><\/p> 
Section\n7.3    Counterparts<\/u>. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. <\/font><\/p> 
 <\/font><\/p>\n\n 
13 <\/font><\/p>\n\n\n\n\n\n 
Section 7.4    Governing Law<\/u>. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California applicable to contracts made and to be performed wholly within the State of California. <\/font><\/p> 
 <\/font><\/p> 
Section 7.5    Waiver of Jury Trial<\/u>. Landlord and Subtenant each hereby voluntarily and knowingly waive and relinquish their\nright to a trial by jury in any action, proceeding or counterclaim brought by either against the other on any matter whatsoever arising out of or in any way connected with this Agreement, the relationship of Landlord with Subtenant, or\nSubtenant\u0092s use or occupancy of the Premises, including any claim of injury or damage, and any emergency and other statutory remedy with respect thereto. <\/font><\/p> 
 <\/font><\/p>\n\n
Section 7.6    Validity<\/u>. If any provision of this Agreement or the application thereof to any person, entity or\ncircumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons, entities or circumstances other than those as to which it is invalid or unenforceable, shall not be\naffected thereby, and each provision of this Agreement shall be valid and be enforced to the full extent permitted by law. <\/font><\/p> 
 <\/font><\/p> 
Section 7.7    Modifications<\/u>. Neither this Agreement nor any term or provisions hereof may be changed, waived, discharged or\nterminated orally, and no breach thereof shall be waived, altered or modified, except by a written instrument signed by the parties hereto. <\/font><\/p> 
 <\/font><\/p> 
Section 7.8    Fees and Costs<\/u>. (a) If either party hereto fails to perform any of its obligations under this Agreement, then\nthe defaulting party shall pay any and all costs and expenses incurred by the other party on account of such default and\/or in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys\u0092\nfees and disbursements (but excluding any special, indirect or consequential damages). Any attorneys\u0092 fees and other expenses incurred by either party in enforcing a judgment in its favor under this Agreement shall be recoverable in accordance\nwith the immediately preceding sentence of this Section 7.7 separately from and in addition to any other amount included in such judgment, and such attorneys\u0092 fees obligation is intended to be severable from the other provisions of this\nAgreement and to survive and not be merged into any such judgment. <\/font><\/p> 
 <\/font><\/p> 
(b) All costs incurred in connection with obtaining a subordination, nondisturbance and attornment agreement from Ground Lessor and any lender shall be borne as follows: (i) with regard to the Ground Lessor, all costs shall be split equally\nbetween Landlord and Subtenant; (ii) with regard to any lender, the costs shall be borne by the Landlord. <\/font><\/p> 
 <\/font><\/p> 
Section 7.9    Notices<\/u>. Notices or other communications given or required to be given under this Lease shall be effective only\nif rendered or given in writing, sent by certified mail with a return receipt requested, or delivered in person or by reputable overnight courier (e.g., Federal Express, DHL, etc.) or by telecopier or facsimile (with confirmation by one of the other\nmethods specified herein). <\/font><\/p> 
 <\/font><\/p>\n\n 
14 <\/font><\/p>\n\n\n\n\n\n 
If such notice shall be addressed to Landlord, the address of Landlord is: <\/font><\/p> 
 <\/font><\/p> 
WXIII\/AMPHITHEATRE REALTY, L.L.C. <\/font><\/p> 
c\/o Whitehall Street Real Estate Limited Partnership <\/font><\/p> 
85 Broad Street <\/font><\/p> 
New York, NY 10004 <\/font><\/p> 
Attention: Chief Financial Officer <\/font><\/p> 
 <\/font><\/p> 
with a copy to: <\/font><\/p> 
 <\/font><\/p> 
ARCHON GROUP <\/font><\/p> 
100 Crescent Court <\/font><\/p> 
Dallas, TX 75201 <\/font><\/p> 
Attention: Will Mundinger <\/font><\/p> 
 <\/font><\/p> 
LEGACY PARTNERS <\/font><\/p> 
4000 East 3rd Avenue <\/font><\/p> 
Foster City, CA 94404 <\/font><\/p> 
Attention: Steve Dune and Darleen Barnes <\/font><\/p> 
 <\/font><\/p> 
SULLIVAN & CROMWELL LLP <\/font><\/p> 
125 Broad Street <\/font><\/p> 
New York, NY 10004 <\/font><\/p> 
Attention: Arthur S. Adler <\/font><\/p> 
 <\/font><\/p> 
If such notice shall be addressed to Subtenant, the address of Subtenant is: <\/font><\/p> 
 <\/font><\/p> 
2400 Bayshore Parkway <\/font><\/p> 
Mountain View, CA 94043 <\/font><\/p> 
Attention: Director of Facilities <\/font><\/p> 
 <\/font><\/p> 
with a copy to: <\/font><\/p> 
 <\/font><\/p> 
2400 Bayshore Parkway <\/font><\/p> 
Mountain View, CA 94043 <\/font><\/p> 
Attention: Legal Department <\/font><\/p> 
 <\/font><\/p> 
and: <\/font><\/p> 
 <\/font><\/p> 
SHARTSIS, FRIESE AND GINSBURG LLP <\/font><\/p> 
One Maritime Plaza, Suite 1800 <\/font><\/p> 
San Francisco, CA 94111 <\/font><\/p> 
Attention: Jonathan M. Kennedy <\/font><\/p>\n\n\n\n\n 
Any such notice or other communication shall be deemed to have been rendered or given five (5) days after the date\nmailed, if sent by certified mail, or upon the date of delivery in person or by courier (unless such delivery date is a weekend or holiday, in which event notice shall be deemed given on the next succeeding business day), or when delivery is\nattempted but refused. <\/font><\/p> 
 <\/font><\/p>\n 
2 <\/font><\/p>\n\n\n\n\n\n 
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above\nwritten. <\/font><\/p> 
 <\/font><\/p>
\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td><\/tr>\n
 
WXIII\/AMPHITHEATRE REALTY, L.L.C.<\/font><\/p> 
a Delaware limited liability company<\/font><\/p> 
 <\/font><\/p> 
By: Whitehall Parallel Real Estate Limited<\/font><\/p> 
Partnership\nXIII, its managing member<\/font><\/p> 
 <\/font><\/p> 
By: WH Parallel Advisors, L.L.C. XIII,<\/font><\/p> 
its general partner<\/font><\/p><\/td><\/tr>\n\n
<\/td>\n<\/td>\n<\/td><\/tr>\n
 <\/font><\/td>\n <\/font><\/td>\nBy:<\/font><\/td>\n <\/font><\/td>\n 
\/s\/ Jerome S. Karr<\/font><\/p>
<\/td><\/tr>\n
 <\/font><\/td>\n <\/font><\/td>\n <\/font><\/td>\n\n <\/font><\/td>\n 
Name: Jerome S. Karr<\/font><\/p> 
Title: Vice\nPresident<\/font><\/p><\/td><\/tr>\n
<\/td><\/tr>\n
 
GOOLE TECHNOLOGY INC.,<\/font><\/p> 
a California\ncorporation<\/font><\/p><\/td><\/tr>\n
<\/td>\n<\/td><\/tr>\n\n
By:<\/font><\/td>\n <\/font><\/td>\n 
\/s\/ George Reyes<\/font><\/p>
<\/td><\/tr>\n
 <\/font><\/td>\n <\/font><\/td>\n 
Name: George Reyes<\/font><\/p> 
Title: Chief Financial\nOfficer<\/font><\/p><\/td><\/tr>\n<\/table><\/div> 
 <\/font><\/p> 
SILICON GRAPHICS, INC., a\nDelaware corporation, <\/font><\/p> 
solely for purposes of Sections 3.4, 5.5 and 6.1<\/i> <\/font><\/p>\n\n<\/pre>\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
 <\/font><\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
By:<\/font><\/td>\n <\/font><\/td>\n\n
\/s\/ Michael L. Hirahara<\/font><\/p>\n
<\/td>\n<\/tr>\n
 <\/font><\/td>\n <\/font><\/td>\n\n
Name: Michael L. Hirahara<\/font><\/p>\n
Title: Vice President,
\nFacilities and Service<\/font><\/p>\n<\/td>\n<\/tr>\n<\/table>\n
 <\/font><\/p>\n
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