Agreement of Purchase and Sale and Joint Escrow Instructions, effective September 11, 2017, by and between the Company and Google Inc

EX-10.2 2 ntap-ex102_97.htm EX-10.2 ntap-ex102_97.htm

 

 

 

        Exhibit 10.2

 

 

 

AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS

I

SUMMARY AND DEFINITION OF BASIC TERMS

This Agreement of Purchase and Sale and Joint Escrow Instructions (this "Agreement"), dated as of the Effective Date set forth in Section 1 of the Summary of Basic Terms, below, is made by and between GOOGLE INC., a Delaware corporation ("Buyer"), and NETAPP, INC., a Delaware corporation ("Seller"). The terms set forth below shall have the meanings set forth below when used in the Agreement.

 

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List of Exhibits

 

 

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II

RECITALS

A.Seller desires to sell and convey to Buyer, and Buyer desires to purchase and acquire, all of Seller’s right, title and interest in and to the following:

i.The Improved Land and the Unimproved Land (collectively, the “Land”), the Google Common Lot, and all of Seller's interest in all rights, privileges, easements and appurtenances benefiting the Land, the Google Common Lot, and/or the Improvements (as defined below), including Seller's interest, if any, in all mineral and water rights and all easements, rights-of-way and other appurtenances used or connected with the beneficial use or enjoyment of the Land, the Google Common Lot and/or the Improvements (the Land, the Google Common Lot, the Improvements and all such rights, privileges, easements and appurtenances are sometimes collectively hereinafter referred to as the "Real Property");

ii.The Buildings, associated parking and landscaped areas and all other improvements located on the Land and the Google Common Lot (the "Improvements");

iii.All of Seller's interest under the Contracts (as defined in Section 4.1.1 below); provided that the following Contracts shall not be assigned to Buyer: (i) such Contracts as Seller desires to continue to maintain after the Closing in order for Seller to fulfill Seller’s obligations pursuant to the NetApp Lease (as defined in Section 5.1.6 below) provided that such Contracts shall be terminated with respect to the portion of the Property that will not be leased back to Seller pursuant to the NetApp Lease, (ii) any brokerage commission agreements (which Contracts shall be terminated by Seller effective as of the First Closing Date at Seller's sole cost), and (iii) other Contracts which, pursuant to the terms of this Agreement, shall be terminated by Seller (which Contracts shall be terminated by Seller effective as of the applicable Closing at Seller's sole cost);

iv.All tangible personal property, equipment, supplies and fixtures owned by Seller and used in the operation of, and located at, the Real Property (collectively, the “Personal Property”); provided, however, that the term “Personal Property” shall exclude any tangible personal property, equipment, supplies and/or fixtures set forth on Exhibit “L” attached hereto; provided, further, that Seller shall remove any such Personal Property prior to each Closing or as of the expiration or earlier termination of the NetApp Lease with respect to the portion of the Property that will be leased back to NetApp pursuant to the NetApp Lease and repair any damage caused by the removal of such Personal Property (including, without limitation, completing any patching and filling any holes caused by the removal), at Seller's sole cost and expense; and

v.To the extent assignable, all of Seller's interest in any intangible property rights in connection with the foregoing, contract rights, warranties, guaranties, licenses, permits, entitlements, governmental approvals and certificates of occupancy which apply to and./or benefit the Real Property, the Improvements, and/or the Personal Property (the "Intangible Personal Property"). Intangible Personal Property shall not include Seller’s interest in (a) any cash, bank or other deposit accounts, (b) refunds of prepaid expenses including any unearned insurance premiums, (c) tax refunds for periods prior to each Closing, (d) all insurance and other claims arising prior to the Effective Date, (e) any website maintained by Seller or its affiliates or the property manager, and (f) any trade name, service name, service mark or other proprietary or intellectual property belonging to Seller or its affiliates or the property manager. The Real

 

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Property, the Improvements, the Personal Property, Seller’s interest under the Property Contracts, and the Intangible Personal Property are sometimes collectively hereinafter referred to as the "Property."

B.Prior to the Contingency Deadline, Buyer will have the opportunity to conduct all due diligence with regard to the Property as set forth in Sections 4.1 and 4.2 below (collectively, the "Due Diligence Investigations").

III

AGREEMENT

NOW, THEREFORE, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows, and hereby instruct Escrow Holder as follows.

Purchase and Sale

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First Closing Property

. At the First Closing (as defined in Section 3.2.1), Seller hereby agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s right, title and interest in and to the entirety of the Property associated with the Improved Property and the Unimproved Land (the "First Closing Property") upon the terms and conditions set forth in this Agreement.

Second Closing Property

. At the Second Closing (as defined in Section 3.2.2), to the extent the same occurs pursuant to this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s right, title and interest in and to the Google Common Lot and the Property related thereto (the "Second Closing Property") upon the terms and conditions set forth in this Agreement.

2.Purchase Price.

Purchase Price

. Buyer shall pay the Purchase Price for the Property as hereinafter provided in this Section 2.

2.2Deposit.

2.2.1Initial Deposit. Within five (5) business days after the Effective Date, Buyer shall deliver to Escrow Holder the Initial Deposit. The Initial Deposit and Additional Deposit (if applicable) shall be deposited by Escrow Holder in an interest-bearing account at a federally insured institution as Escrow Holder deems appropriate and consistent with the timing requirements of this Agreement. The interest thereon shall accrue to the benefit of Buyer and be paid to the party receiving the Deposit pursuant to the terms of this Agreement, and Buyer and Seller hereby acknowledge that there may be penalties or interest forfeitures if the applicable instrument is redeemed prior to its specified maturity. Buyer agrees to provide its Federal Tax Identification Number to Escrow Holder upon the Opening of Escrow. Concurrently with the expiration of the Property Approval Period and provided Buyer has delivered Buyer's Approval Notice (as those terms are defined in Sections 4.1.1 and 4.1.2, respectively, below) to Seller and Escrow Holder, the entire Initial Deposit shall become non-refundable except as otherwise expressly provided in this Agreement. If, prior to the expiration of the Property Approval Period, Buyer delivers written notice to Seller and Escrow Holder terminating this Agreement or if Buyer does not deliver Buyer's Approval Notice to Seller and Escrow Holder as provided herein, this Agreement shall terminate and the Initial Deposit, together with all interest accrued thereon (but less the

 

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Independent Consideration (as defined in Section 2.5 below) and one-half (1/2) of any escrow cancellation costs), shall be returned to Buyer. If this Agreement has not been so terminated, then, after the Contingency Deadline, the Initial Deposit together with interest accrued thereon shall be: (i) applied and credited toward payment of the First Closing Purchase Price on the First Closing Date (as defined in Section 3.2.1 below), or (ii) retained by Seller as liquidated damages pursuant to Section 16.2 below, or (iii) returned to Buyer (less the Independent Consideration) if this Agreement is terminated pursuant to Sections 3.2.2, 4.4 or 13, or this Agreement is terminated because of a material breach by Seller in accordance with Section 16.1, or this Agreement is terminated and otherwise provides for the Deposit to be refunded to Buyer.

2.2.2Additional Deposit. Within five (5) business days after expiration of the Property Approval Period, and provided Buyer has not elected to terminate this Agreement pursuant to Section 4.1.2, Buyer shall deliver to Escrow Holder the Additional Deposit (the Additional Deposit, together with the Initial Deposit and with all interest accrued thereon in escrow, the "Deposit"). Upon receipt by Escrow Holder, the Additional Deposit shall become non-refundable except as otherwise provided in this Agreement. The Additional Deposit, together with interest accrued thereon, shall be (i) applied and credited toward payment of the First Closing Purchase Price on the First Closing Date, (ii) retained by Seller as liquidated damages pursuant to Section 16.2 below, or (iii) returned to Buyer (less the Independent Consideration) if this Agreement is terminated because of a material breach by Seller in accordance with Section 16.1 or as is provided for in Sections 3.2.2 and 13 below, or this Agreement is terminated and otherwise provides for the Deposit to be refunded to Buyer.

First Closing Purchase Price

. On or before the First Closing Date (at such time so as to allow the proceeds to be disbursed to Seller on the First Closing Date), Buyer shall deposit with Escrow Holder cash by means of a confirmed wire transfer through the Federal Reserve System or cashier's check in the amount of the balance of the First Closing Purchase Price, plus Buyer's share of expenses and prorations with respect to the First Closing Property as described in this Agreement.

Second Closing Purchase Price

. On or immediately after the First Closing Date, and provided that the First Closing has occurred, Buyer shall deposit with Escrow Holder cash by means of a confirmed wire transfer through the Federal Reserve System or cashier’s check in the amount of the Second Closing Purchase Price (collectively and with all interest accrued thereon in escrow, the “Second Closing Funds”). The Second Closing Funds shall be returned to Buyer as provided in Section 3.2.2 and Section 4.4 below in the event the Second Closing fails to occur for any reason, subject to Section 16.2 below and Section 13.  Notwithstanding foregoing, Buyer and Seller hereby acknowledge and agree that in the event that the First Closing occurs and the Deposit is applied to the First Closing Purchase Price but the Second Closing does not occur solely as a result of Buyer’s default under this Agreement beyond any applicable notice and cure period, then a portion of the Second Closing Funds, in an amount equal to Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00), may be retained by Seller as liquidated damages pursuant to Section 16.2 below, which shall constitute the “Deposit” with respect to the Second Closing.

Independent Contract Consideration

. The sum of One Hundred Dollars ($100) (the "Independent Consideration") out of the Deposit is independent of any other consideration provided hereunder, shall be fully earned by Seller upon the Effective Date, and is not refundable to Buyer under any circumstances. Accordingly, if this Agreement is terminated for any reason by either party, the Independent Consideration shall be paid by the Escrow Holder to Seller. Independent Consideration shall be non-refundable under all circumstances and shall not be applied to the Purchase Price at either the First Closing or the Second Closing. Buyer and Seller expressly acknowledge and agree that the Independent Consideration, plus Buyer’s agreement to pay the costs provided in this Agreement, has been bargained for as consideration for Seller’s execution and delivery of this Agreement and for

 

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Buyer’s review, inspection and termination rights during the Property Approval Period, and is adequate for such purpose.

3.Escrow and Title.

Opening of Escrow

. Buyer and Seller shall promptly deliver a fully executed copy of this Agreement to Escrow Holder, and the date of Escrow Holder's receipt thereof is referred to as the "Opening of Escrow." Seller and Buyer shall execute and deliver to Escrow Holder any additional or supplementary instructions as may be necessary or convenient to implement the terms of this Agreement and close the transactions contemplated hereby, provided such instructions are consistent with and merely supplement this Agreement and shall not in any way modify, amend or supersede this Agreement. Such supplementary instructions, together with the escrow instructions set forth in this Agreement, as they may be amended from time to time by the parties, shall collectively be referred to as the "Escrow Instructions." The Escrow Instructions may be amended and supplemented by such standard terms and provisions as the Escrow Holder may request the parties hereto to execute; provided, however, that the parties hereto and Escrow Holder acknowledge and agree that in the event of a conflict between any provision of such standard terms and provisions supplied by the Escrow Holder and the Escrow Instructions, the Escrow Instructions shall prevail.

Closing

. The transactions contemplated in this Agreement between Buyer and Seller shall be accomplished in two (2) closings as described in Sections 3.2.1 and 3.2.2 below, consisting of the first closing (the "First Closing") and the second closing (the "Second Closing"). As used herein, the term "Closing" shall mean the First Closing Date or the Second Closing Date, as applicable.

3.2.1First Closing. Subject to the satisfaction or waiver of the conditions to Closing set forth in this Agreement with respect to the First Closing, the purchase and sale of the First Closing Property shall close during the First Closing Period. The "First Closing Date" shall mean the earlier of (i) the date on which the Deed (as defined in Section 5.1.1 below) for the First Closing Property is recorded in the Official Records, or (ii) the date on which the First Closing Purchase Price is disbursed by Escrow Holder to Seller pursuant to Section 6.7 below.

3.2.2Second Closing. Subject to the satisfaction or waiver of the conditions to Closing set forth in this Agreement with respect to the Second Closing, the purchase and sale of the Second Closing Property shall close during the Second Closing Period upon the date that is five (5) business days following recordation in the Official Records of the Subdivision Map (as described in Section 3.2.3), but no earlier than fifteen (15) days following the Contingency Deadline; provided, however, that if the Subdivision Map subdividing the Google Common Lot from the Common Lot has not been recorded by the Outside Second Closing Date (as such date may be extended pursuant to the mutual agreement of Seller and Buyer), then the parties’ rights and obligations shall be as set forth in Section 4.4 below (subject to any extensions as provided herein). The "Second Closing Date" shall mean the earlier of (i) the date on which the Deed for the Second Closing Property is recorded in the Official Records, or (ii) the date on which the Second Closing Purchase Price is disbursed by Escrow Holder to Seller pursuant to Section 6.7 below. Notwithstanding anything to the contrary set forth herein, in the event that Seller exercises all of the four (4) Seller Outside Second Closing Date Extensions (as defined in Section 3.2.3(h) below) to extend the Second Closing Date as provided in Section 3.2.3(h), but the Second Closing does not occur on or before October 30, 2020 for any reason other than either party’s default under the terms of this Agreement, then either party may, by written notice delivered to the other party no later 5:00 pm Pacific Time on October 27, 2020 and without payment of any fee whatsoever, extend the Second Closing Date to be the date (the “Final Extended Second Closing Date”) that is the earlier to occur of (a) October 31, 2022 or (b) the date that is five (5) business days following the date that the Subdivision Map subdividing the Google Common Lot from the Common Lot has been recorded in

 

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accordance with the terms of this Agreement.  In the event that the Second Closing Date is further extended pursuant to this Section 3.2.2, then notwithstanding anything to the contrary set forth in this Agreement, the entire amount of the Second Closing Funds, including any portion thereof designated as the “Deposit” with respect to the Second Closing pursuant to Section 2.4 hereof, together with all interest accrued thereon in escrow, shall be promptly refunded and returned to Buyer and shall no longer be held in escrow hereunder, provided that in the event that the Second Closing Date occurs prior to October 31, 2022, then Buyer shall deposit the Second Closing Funds in escrow by no later than one (1) business day prior to the Final Extended Second Closing Date.

3.2.3Common Lot Subdivision.  Buyer and Seller acknowledge that, as of the Effective Date of this Agreement, the Seller holds fee title to a single, approximately 1,315,076 square foot common lot that serves the Land and each of Seller’s nearby buildings and other improvements related thereto (the "Common Lot"). Seller intends to subdivide the Common Lot into two (2) separate legal parcels, one of which shall consist of approximately 610,999 square feet and shall continue to be owned by Seller after the Second Closing and will apply to and serve Seller’s nearby buildings not a part of this transaction (the "Seller Common Lot"), and the other of which shall consist of approximately 704,077 square feet and shall be conveyed to Buyer at the Second Closing pursuant to this Agreement, which portion of the Common Lot is referred to herein as the "Google Common Lot."  The Common Lot and the approximate location of the Seller Common Lot and Google Common Lot are all shown on Exhibit “A-3” attached hereto. It is understood that the square footages of the Seller Common Lot and Google Common Lot shall be subject to Buyer’s review and approval as set forth herein.

(a)As soon as reasonably practicable following the execution of this Agreement but in no event later than November 10, 2017, Seller shall provide to Buyer a draft subdivision map as prepared by a licensed engineer that Seller intends to submit to the City of Sunnyvale (“City”) in order to subdivide the Common Lot into the Seller Common Lot and Google Common Lot (the "Subdivision Map").  The Subdivision Map shall further include a precise delineation of the proposed Google Common Lot and the Seller Common Lot, parking space counts, open space area calculations, amenity area calculations and other information as may be required by the City for the processing of the proposed Subdivision Map.  Except as otherwise provided herein, the proposed Subdivision Map, if approved, shall, at minimum, allow for the Real Property to be in conformance with governing land use standards promulgated by the City, including without limitation floor area ratio, open space and other standards as set forth in the Moffett Park Specific Plan and the City of Sunnyvale Municipal Code.  The proposed Subdivision Map shall be subject to the review, comment, and approval of Buyer, which approval shall not be unreasonably withheld, conditioned, or delayed and, and shall be either granted or expressly withheld within thirty (30) days after Buyer’s receipt of the draft Subdivision Map.  If Buyer fails to provide its approval or disapproval of the proposed Subdivision Map to Seller within such thirty (30) day period, Seller may send a notice to Buyer, which must contain the following inscription in bold faced letters: “SECOND NOTICE DELIVERED PURSUANT TO SECTION 3.2.3(a) OF THE PURCHASE AGREEMENT—FAILURE TO TIMELY RESPOND WITHIN THREE (3) DAYS SHALL RESULT IN DEEMED APPROVAL OF PROPOSED SUBDIVISION MAP.”  If Buyer fails to provide its approval or disapproval of the proposed Subdivision Map within such three (3) day period, then Buyer shall be deemed to have approved the proposed Subdivision Map.  In any event, Buyer may not object to the draft Subdivision Map unless such objection is based on a “Subdivision Problem”.  As used herein, the term “Subdivision Problem” shall mean that according to the proposed Subdivision Map, the Common Lot, as subdivided, may: (i) result in the Google Common Lot consisting of less than 704,077 square feet of space, (ii) result in non-conformance with applicable land use and development standards, including but not limited to applicable floor area ratio, open space and amenity space requirements, (iii) require dedications, easements or other encumbrances on the Property that Buyer determines in its sole but good faith discretion to be unacceptable, and (iv) result in other material impediments to Buyer’s intended development, use and occupancy of the Property, as

 

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reasonably determined by Buyer.  In the event Buyer identifies a Subdivision Problem within the thirty (30) day review period set forth above, Buyer shall deliver written notice of such Subdivision Problem to Seller and Buyer and Seller shall work cooperatively together to resolve such Subdivision Problem, including revising the Subdivision Map as necessary to resolve such Subdivision Problem to the extent feasible.  If the parties are unable to resolve any Subdivision Problem after thirty (30) days of Buyer’s notice thereof to Seller, either party may terminate the Agreement with respect to the Second Closing Property by providing written notice to the other, in which case the terms of Section 4.4 of this Agreement shall govern.

(b)Buyer agrees to cooperate with Seller, acting in good faith in a commercially reasonable manner, in the application, processing, approval and recordation of the Subdivision Map, including but not limited to responding to requests for approvals and information related to the Subdivision Map that is within Buyer’s possession or control within a commercially reasonable time period.  

(c)Following Seller’s receipt of Buyer’s approval of the proposed Subdivision Map, Seller shall diligently pursue to completion all necessary approvals for and the subsequent recordation of the Subdivision Map in the Official Records.  Seller shall provide regular updates to Buyer regarding the progress of the Subdivision Map and other required approvals, including update calls or correspondence with Buyer or its designated representatives as may be reasonably requested by Buyer. Seller shall provide Buyer with reasonable advance notice, and in any event no less than forty-eight (48) hours’ notice, of any meetings, hearings, conference calls or other material communications with the City or other governmental entity with jurisdiction over the Subdivision Map and related approvals.  Buyer shall have an opportunity, but not the obligation, to attend all such meetings, hearings, conference calls, or other material communications relevant to the review, approval and recordation of the Subdivision Map and related approvals; provided, however, that as long as Seller provides the requisite notice to Buyer as provided herein and a commercially reasonable opportunity to participate, Seller shall not be obligated schedule any such meetings, hearings, conference calls or other material communications in order to accommodate Buyer.  It is understood that routine phone calls, electronic correspondence and other communications with City staff and Seller regarding the general processing of the Subdivision Map shall not require advance notice to Buyer, but Seller shall promptly advise Buyer of any material information arising out of such communications. The parties shall provide to each other copies of any material written correspondence or communications to or from the City or other governmental entity relating to the Subdivision Map or any related approvals that are received from or delivered to the respective party.

(d)Within thirty (30) days following execution of this Agreement, Seller shall provide Buyer with an estimated budget for the engineering and City processing expenses related to the Subdivision Map.  The Subdivision Map budget shall be subject to the review, comment, and approval of Buyer, which approval shall not be unreasonably withheld, conditioned, or delayed and, and shall be either granted or expressly withheld in writing within fifteen (15) days after Buyer’s receipt thereof, and Buyer shall be deemed to have accepted the estimated budget if Buyer fails to provide its written approval or disapproval thereof within such fifteen (15) day period.  Any increase in the proposed Subdivision Map budget in excess of ten percent (10%) shall be subject to Buyer review upon the same terms and conditions in the preceding sentence.  Buyer and Seller shall each bear one-half (1/2) of the City Subdivision Map processing costs and engineering costs associated with the Subdivision Map.  Each party shall bear the entire cost of its own attorneys, consultants, and contractors engaged in the Subdivision Map approval process.  In seeking reimbursement of processing and engineering costs, Seller shall provide Buyer with a statement for such costs along with reasonably supporting documentation, including invoices from the service providers or City.  Buyer shall provide payment of its one-half (1/2) portion of the shared costs within thirty (30) days of receipt of such statement from Seller.  In the event

 

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this Agreement is terminated due to a default of Seller or Buyer as provided herein, the defaulting party shall reimburse the non-defaulting party for all shared processing and engineering costs associated with the Subdivision Map within thirty (30) days of such termination and such obligation shall survive the termination of this Agreement.

(e)Once the Subdivision Map has been submitted to the City, during the term of the Agreement, the Subdivision Map shall not be materially modified, changed, or withdrawn by Buyer or Seller; provided, however, that Seller shall be permitted to materially modify, change or withdraw the Subdivision Map in any respect upon receipt of Buyer’s written consent, which may only be withheld by Buyer if Buyer reasonably determines that such modification would result in a Subdivision Problem.  The process for the review of such proposed modification, change or withdrawal shall be as set forth in Section 3.2.3(a) above.  If the City or any governmental agency requires a material modification of the Subdivision Map that, in Buyer’s reasonable judgment, would create a Subdivision Problem, Buyer may disapprove of such modification in its sole but good faith discretion by providing written notice to Seller within ten (10) days of receiving written notice of the City’s or other governmental agency’s Subdivision Map modification.  If Buyer fails to provide disapproval of any such proposed modification within the required ten (10) day period, Seller may send a notice to Buyer, which must contain the following inscription in bold faced letters: “SECOND NOTICE DELIVERED PURSUANT TO SECTION 3.2.3(e) OF THE PURCHASE AGREEMENT—FAILURE TO TIMELY RESPOND WITHIN THREE (3) DAYS SHALL RESULT IN DEEMED APPROVAL OF PROPOSED MODIFICATIONS TO SUBDIVISION MAP BY CITY.”  If Buyer fails to provide its disapproval of the proposed modifications to the Subdivision Map by the City within such three (3) day period, then Buyer shall be deemed to have approved the proposed modifications.  If Buyer timely provides written notice to Seller of its disapproval of a proposed modification to the Subdivision Map by the City as provided herein, the parties shall then promptly meet and confer.  If the parties cannot reach agreement as to the City’s proposed modification within thirty (30) days after delivery of Buyer’s disapproval notice to Seller, either party may terminate this Agreement with respect to the Second Closing Property by providing written notice, in which case the terms of Section 4.4 of this Agreement shall govern.  

(f)Seller shall be obligated to provide Buyer prompt and advance written notice of any proposed restrictions, conditions, limitations, deviations, or modifications in connection with the City’s (or other governmental agency’s) review and approval of the Subdivision Map (or any related governmental approvals) (“Subdivision Condition”). Buyer shall have the right to disapprove in writing of any Subdivision Condition that Buyer reasonably determines in its sole but good faith discretion to be unacceptable (each, a “Subdivision Condition Problem”). In the event of a Subdivision Condition Problem, Buyer may disapprove of the applicable Subdivision Condition by providing written notice to Seller within ten (10) days of receiving written notice of the Subdivision Condition.  If Buyer fails to provide disapproval of any such proposed Subdivision Condition within the required ten (10) day period, Seller may send a notice to Buyer, which must contain the following inscription in bold faced letters: “SECOND NOTICE DELIVERED PURSUANT TO SECTION 3.2.3(f) OF THE PURCHASE AGREEMENT—FAILURE TO TIMELY RESPOND WITHIN THREE (3) DAYS SHALL RESULT IN DEEMED APPROVAL OF PROPOSED SUBDIVISION CONDITION TO SUBDIVISION MAP BY CITY.”  If Buyer fails to provide its disapproval of the proposed Subdivision Condition within such three (3) day period, then Buyer shall be deemed to have approved the proposed Subdivision Condition. If Buyer timely provides written notice to Seller of its disapproval of a proposed Subdivision Condition as provided herein, the parties shall then promptly meet and work cooperatively together in good faith to attempt to resolve such Subdivision Condition Problem. If Buyer and Seller are unable to agree within thirty (30) days regarding acceptable modifications or allocation of responsibility to the Subdivision Condition(s), either party may terminate this Agreement

 

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with respect to the Second Closing Property by written notice to the other party, in which case Section 4.4 of this Agreement shall apply.

(g)The parties will reasonably and in good faith meet and confer and allocate responsibility for compliance with all Subdivision Conditions that must be satisfactorily completed prior to the City’s approval of the final Subdivision Map and the recordation of the same.  Upon final approval and recordation of the Subdivision Map and any other related governmental approvals in accordance with the terms of this Agreement (including securing Buyer’s approval of the final Subdivision Map and any associated Subdivision Conditions as set forth herein), Buyer and Seller shall each be responsible for completion and compliance with any ongoing Subdivision Conditions and other requirements governing their respective portion of the Common Lot that survive recordation of the final Subdivision Map, including, as applicable and as approved by each of the parties in accordance with the provisions set forth above, the implementation and maintenance of all bonds or other security instruments, including the costs thereof, required by the City or other related governmental body as part of the Subdivision Map approval and recordation process.

(h)Seller makes no representation or warranty as to whether the approval and/or recordation of the Subdivision Map can be obtained prior to the Outside Second Closing Date. The Outside Second Closing Date is subject to potential extension pursuant to (i) Buyer Subdivision Delays (as defined below), (ii) any extension Outside Second Closing Date mutually agreed upon by Seller and Buyer, (iii) any Seller Outside Second Closing Date Extensions, and (iv) any extension of the Outside Second Closing Date pursuant to Section 3.2.2 above.  Buyer and Seller acknowledge and agree that, if, as of the Outside Second Closing Date (as such date may be extended pursuant to the terms of this Agreement), the Subdivision Map remains unapproved and/or unrecorded in the Official Records, then the parties’ rights and obligations shall be as set forth in Section 4.4 below.  Neither the failure of Seller or Buyer to obtain the required governmental approval and recordation of the Subdivision Map shall constitute default or breach by such party under this Agreement.  As used herein, the term “Buyer Subdivision Delays” shall mean any actual delay in the recordation of the Subdivision Map for the Common Lot resulting from Buyer’s failure to fulfill its obligations with respect to Subdivision Map as provided in this Section 3.2.3 within the time periods specified therefor herein (excluding all obligations for which Buyer’s consent or approval shall be deemed given due to the passage of time as provided in this Section 3.2.3), or where no such time period is specified, then within a commercially reasonable time period, which is not cured within five (5) business days after Buyer receives written notice thereof.  In no event shall Buyer be permitted to combine or otherwise connect the subdivision of the Common Lot with any other approvals required from the City in connection with Buyer’s development of projects on properties other than the Property.  Seller shall provide Buyer with prompt written notification of any alleged Buyer Subdivision Delay, including an estimate of the proposed duration of such delay to the extent known at that time by Seller.  In addition, if at any time the final Subdivision Map for the Common Lot has not yet been approved by the City and recorded in the Official Records, Seller shall have the right, in Seller’s sole and absolute discretion, and without the payment of any fee whatsoever, to extend the Outside Second Closing Date for four (4) periods of six (6) months each (each, a “Seller Outside Second Closing Date Extension”) by delivering written notice thereof to Buyer at least three (3) business days in advance of the then-existing Outside Second Closing Date.  For absence of doubt, if all four (4) of the Seller Outside Second Closing Date Extensions are exercised by Seller, the Outside Second Closing Date would be October 30, 2020.

3.2.4Revised CC&Rs.  The Property is currently encumbered with that certain Declaration of Covenants, Conditions and Restrictions for Crossman Commons, recorded in the Official Records as Document Number 19976446 (the “Existing CC&Rs”). Buyer and Seller hereby acknowledge and agree that the Existing CC&Rs shall be amended, restated and superseded in their entirety with a revised Declaration of Covenants, Conditions and Restrictions and recorded in the Official

 

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Records (the “Revised CC&Rs”) as of the First Closing Date prior to the recordation of the conveying deed for the First Closing Property.  The Revised CC&Rs shall govern the respective rights and obligations of Buyer and Seller with respect to the Common Lot during the period prior to the recordation of the Subdivision Map and the transfer of the Google Common Lot to Buyer as provided herein, and subject to the terms set forth below regarding the Reduced CC&Rs (as defined below), the Revised CC&Rs shall continue to govern in the event the Second Closing does not occur.  During the Property Approval Period, Buyer and Seller shall negotiate in good faith and agree upon the terms and conditions of the Revised CC&Rs, which, subject to Buyer’s due diligence review, shall provide, at a minimum: (i) Seller as the declarant; (ii) that the Revised CC&Rs wholly replace and supersedes the Existing CC&Rs and that the Existing CC&Rs shall be of no further force or effect upon recordation of the Revised CC&Rs; (iii) an area of control for Buyer (the “Buyer Area of Control”) and an area of control for Seller (the “Seller Area of Control”), both of which shall be generally equivalent to the size and location of the Seller Common Lot and the Google Common Lot as depicted in Exhibit “A-3” (as may be modified and agreed to by the parties pursuant to Section 3.2.3), where Buyer shall have the exclusive right to use the Buyer Area of Control and Seller shall have the exclusive right to use the Seller Area of Control (except as otherwise agreed to by Buyer and Seller in the Revised CC&Rs); (iv) Buyer shall maintain, repair and insure the entire Buyer Area of Control at Buyer’s own expense and Seller shall maintain, repair and insure the entire Seller Area of Control at Seller’s own expense; (v) any portions of the Common Lot that are used jointly by Buyer and Seller shall be managed by Seller if within the Seller Area of Control or by Buyer if within the Buyer Area of Control, and each party shall reimburse the other for their respective share of the cost of the services or materials used based on the metered use thereof (if separate meters are installed) or for their respective pro rata share thereof (based on the ratio of Buyer’s or Seller’s pro rata rentable area of the Buildings owned by Buyer or Seller following the First Closing Date to the aggregate rentable area of building square footage owned by Buyer and Seller); provided that Buyer shall indemnify Seller against all claims arising from Buyer’s joint use of any portion of the Seller Area of Control, and Seller shall indemnify Buyer against all claims arising from Seller’s joint use of any portion of the Buyer Area of Control; (vi) any easement areas shall be established, maintained and the cost thereof allocated as provided for in the Revised CC&Rs; (vii) the Revised CC&Rs shall not provide for an association while Buyer and Seller are the exclusive owners of the parcels encumbered by the Revised CC&Rs, but shall provide that any matters subject to a vote thereunder must be agreed to by both Seller and Buyer, it being understood that, except as provided to the contrary in the Revised CC&Rs, no matters solely affecting either the Buyer Area of Control or the Seller Area of Control shall be subject to a vote or any input by the other party; (viii) the Revised CC&Rs shall not provide for any prohibitions on Buyer’s use of the Buyer Area of Control or Seller’s use of the Seller Area of Control (except to the extent required by applicable law and/or any governmental agencies); (ix) the Revised CC&Rs shall grant certain access rights and/or, if applicable, easement rights, to Seller and/or Buyer to install cable conduits and manhole covers throughout the Common Lot, provide for certain rights and easements reasonably required by either party over the Common Lot in connection with each party’s development, maintenance and operation of their respective properties or Area of Control subject to the terms and conditions to be set forth in the Revised CC&Rs, provided, however, that if any party’s access or easement rights materially affect or are located on the other party’s respective Area of Control, such access or easement rights shall be subject to the prior approval of the other party; (x) there shall be no design review process over buildings to be built, renovated or redeveloped by Buyer or Seller; provided, however, that all other improvements to be constructed by Buyer on the Seller Area of Control shall be subject to Seller’s prior review and approval, and all other improvements to be constructed by Seller on the Buyer Area of Control shall be subject to Buyer’s prior review and approval; and provided, further that any improvements constructed on the Common Lot by Buyer or Seller shall not restrict access to, or materially impair the use and enjoyment of, any property of Buyer or Seller; (xi) each party shall indemnify and defend the other for personal injury or damage to property on the other’s property due to the negligence or willful misconduct of the indemnifying party or its agents, employees, contractors or invitees on the Common Lot; (xii) Buyer and Seller may each enforce the terms of the Revised CC&Rs; (xiii) the Revised CC&Rs

 

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shall include commercially reasonable mortgagee protection provisions; (xiv) the Revised CC&Rs shall include commercially reasonable insurance requirements; (xv) the Revised CC&Rs may only be subsequently amended by mutual consent of Buyer and Seller, and following any property disposition by Buyer or Seller within its respective Area of Control, then by a majority vote of the parcel owners as set forth in the Revised CC&Rs; and (xvi) the Revised CC&Rs shall include a right of both Buyer and Seller to terminate or amend the Revised CC&Rs with respect to each party’s respective Area of Control once the Subdivision Map is recorded in the Official Records and the Google Common Lot is deeded to Buyer. Notwithstanding the foregoing, following the recordation of the Subdivision Map and the transfer of fee title to the Google Common Lot to Buyer, Buyer and Seller may mutually determine that the Revised CC&Rs are no longer necessary or desirable, in which case Buyer and Seller shall agree that a substitute document, such as a reciprocal easement agreement, would be sufficient to address utility, access, or other mutual rights and obligations  as between the Seller Common Lot and the Google Common Lot. In addition to the Revised CC&Rs, during the Property Approval Period, Buyer and Seller shall negotiate in good faith a form of reduced conditions, covenants and restrictions (“Reduced CC&Rs”) that would amend, restate and supersede in their entirety the Revised CC&Rs in the event that the Subdivision Map is not recorded in the Official Records by the Outside Second Closing Date or Final Extended Second Closing Date, as applicable, for any reason other than Seller’s default under this Agreement.  The parties hereby and acknowledge and agree that (1) the Reduced CC&Rs would be recorded in the Official Records only if the Subdivision Map is not recorded in the Official Records by the Outside Second Closing Date or Final Extended Second Closing Date, as applicable, for any reason other than Seller’s default under this Agreement, and (2) Buyer and Seller expressly agree in writing to the form of the Reduced CC&Rs during the Property Approval Period, and in no event shall the delivery of Buyer’s Approval Notice be deemed to constitute Buyer’s consent to the Reduced CC&Rs.  In all other events, the Revised CC&Rs shall continue in full force and effect in accordance with their terms.  

4.Contingencies; Conditions Precedent to Closing.

4.1Buyer's Review.

4.1.1Delivery of Due Diligence Materials by Seller. To the extent within the immediate possession of Seller or Seller’s property manager, Seller shall make available to Buyer and Buyer's representatives at Seller's offices, at the Property or on a diligence database established by Seller (the "Diligence Database"), for inspection and right to copy, at Buyer's expense, any environmental studies, soils studies, plans, specifications and other similar materials relating to the physical and environmental condition of the Property ("Reports"). Except as otherwise expressly set forth in this Agreement, Seller makes no representations or warranties regarding the accuracy of the Reports or that the Reports are complete copies of the same. Buyer acknowledges and understands that all such materials made available by Seller are only for Buyer's convenience in making its own examination and determination prior to the Contingency Deadline as to whether it wishes to purchase the Property, and, in so doing, Buyer shall rely exclusively upon its own independent investigation and evaluation of every aspect of the Property and not on any materials supplied by Seller.

Without limiting the generality of the foregoing, Seller shall also make available, in Seller’s discretion, at Seller's offices, on the Diligence Database, or at the Property for review and copying, at Buyer's expense, the following due diligence items (together with the Reports, collectively, "Due Diligence Items") at any time after Opening of Escrow, to the extent in the possession of Seller or Seller’s property manager: (a)  any plans and specifications for the Property, (b) copies of all service contracts or service agreements relating to the maintenance and operation of the Property including the service contracts set forth on Exhibit "J" hereto (but expressly excluding any contracts Seller determines are "master contracts" affecting other properties in addition to the Property and which will not be assigned to Buyer at Closing) (collectively, the "Contracts"); (c) property tax bills for the last two (2) fiscal tax

 

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years and the property tax bill for the current year to the extent in the possession of Seller; and (d) any other documents described in Exhibit “M” attached hereto. Except as otherwise expressly set forth in this Agreement, Seller makes no representations regarding, and shall have no liability or responsibility with respect to, the accuracy or completeness of the information and/or materials included in the Due Diligence Items. Seller acknowledges Buyer may desire to discuss or otherwise inquire about matters related to the Property with various governmental entities and utilities and the other Due Diligence Items with other third parties. In this regard, Buyer is permitted to contact all necessary governmental entities, utilities and third parties, and discuss with such parties the Due Diligence Items; provided, however, that (i): Seller is first given written (which may be electronic) notice or telephonic notice and a reasonable opportunity to be present at such contact or discussions at a time and location reasonably convenient to Seller, and (ii) Buyer’s communication with governmental entities shall be limited to the Due Diligence Items and any Buyer communication with governmental entities regarding the processing of Subdivision Map shall be subject to the provisions of Section 3.2.3(c) above.

Between the Effective Date and the Contingency Deadline (the "Property Approval Period"), Buyer shall have the right to review and investigate the Due Diligence Items, the physical and environmental condition of the Property, the character, quality, value and general utility of the Property, the zoning, land use, environmental and building requirements and restrictions applicable to the Property, the state of title to the Property, and any other factors or matters relevant to Buyer's decision to purchase the Property. Buyer, in Buyer's sole and absolute discretion, may determine whether or not the Property is acceptable to Buyer within the Property Approval Period. Buyer shall provide Seller with at least one (1) business day’s prior written notice of its desire to enter upon the Real Property for inspection and/or testing and any such inspections or testing shall be conducted at a time and manner reasonably approved by Seller and to minimize disruption or interference with any tenants. Prior to conducting any inspection or testing, Buyer or its testing consultants, as applicable, shall deliver to Seller a certificate of insurance naming Seller as additional insured (on a primary, non-contributing basis) evidencing commercial general liability and property damage insurance with limits of not less than Two Million Dollars ($2,000,000) in the aggregate for liability coverage and not less than One Million Dollars ($1,000,000) in the aggregate for property damage. Notwithstanding the foregoing, Buyer shall not be permitted to undertake any air sampling or any intrusive or destructive testing of the Property, including a "Phase II" environmental assessment (collectively, the "Intrusive Tests"), without in each instance first (i) providing Seller with a detailed work plan identifying the applicable consultant and the type and specific locations of all proposed testing, and (ii) obtaining Seller's prior written consent thereto, which consent Seller may give or withhold in Seller's sole and absolute discretion (provided that such consent shall not be unreasonably withheld if the results of the Phase I Report, a copy of which Phase I Report shall have been delivered to Seller, recommends further testing). Seller, and its representatives, agents, and/or contractors shall have the right to be present during any entry on the Real Property by Buyer or its representatives or consultants or any such Intrusive Test. If Seller fails to advise Buyer of its disapproval of any proposed Intrusive Tests within such two (2) business day period, such failure shall be deemed Seller's disapproval thereof. All work and activities conducted on the Real Property by Buyer or its representatives, vendors or consultants pursuant to this Section 4.1.1 shall be conducted in accordance with applicable law. Buyer hereby indemnifies and holds Seller and the Seller Group (as defined below) harmless from any and all costs, loss, damages or expenses of any kind or nature arising out of or resulting from any entry and/or activities upon the Property by Buyer and/or Buyer's representatives, vendors and consultants; provided, however, such indemnification obligation shall not be applicable to Buyer's mere discovery of any adverse physical condition at the Property, except to the extent Buyer or its representatives, vendors or consultants aggravate such condition following the initial discovery of the same. Buyer's indemnification obligations under this Section 4.1.1 shall survive each Closing or any termination of this Agreement.

4.1.2Termination. If Buyer either (a) delivers a notice of termination to Seller and Escrow Holder prior to the Contingency Deadline, or (b) fails to deliver written notice ("Buyer's

 

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Approval Notice") to Seller and Escrow Holder prior to the Contingency Deadline of Buyer's approval of the Property, Buyer shall be deemed to have disapproved the Property and in such event, this Agreement shall terminate, the Deposit (less the Independent Consideration) will be returned to Buyer and, except for Buyer's indemnity and Buyer’s and Seller’s confidentiality obligations under this Agreement and any other obligations which expressly survive termination of this Agreement, the parties shall have no further rights or obligations to one another under this Agreement.

4.1.3Due Diligence Materials. In the event Buyer does not purchase the Property for any reason, within five (5) days after the date this Agreement is terminated Buyer shall return to Seller all documents, information and other materials supplied by Seller to Buyer or destroy any such materials in its possession (except any original copies of such documents, which Buyer shall not destroy but shall instead be required to physically return to Seller), except to the extent that (i) electronic records and files are retained pursuant to automated electronic archiving, back-up or internal disaster recovery procedures or which are difficult to extract and (ii) back-up copies of such information are retained pursuant to Buyer’s document retention policies consistently applied or any regulatory or investigatory requirements of any governmental or regulatory authority, and, at Seller's written request, without warranty or representation of any kind, any final, non-proprietary inspection reports, studies, surveys, and other reports and/or test results relating to the physical and environmental condition of the Property which were prepared by consultants retained by Buyer in contemplation of this Agreement, excluding any drafts, attorney-client privileged communications, or internally generated work product.

Title and Survey

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4.2.1Buyer shall obtain from the Title Company a preliminary title report for the Property (the "PTR") and copies of all underlying title documents described in the PTR. Buyer may obtain, at Buyer’s sole cost and expense, a land title survey (certified to include Seller) of the Property prepared by a licensed surveyor (the "Survey"). Seller shall also deliver to Buyer any Survey that has been performed within the last twelve (12) months. Buyer shall deliver a copy of any Survey to Seller and Title Company within three (3) business days after Buyer’s receipt thereof. Buyer shall have twenty-one (21) days after receipt of the PTR (but in any event not later than nine (9) business days prior to the Contingency Deadline) (the "Interim Date") to provide written notice (the "Objection Notice") to Seller of any matters shown by the PTR and/or the Survey which are not satisfactory to Buyer; provided, however, in the event that legal descriptions, assessors numbers, or essential title information is not available for one or more of the parcels comprising the Unimproved Land by the date that is ten (10) business days prior to the Interim Date, the Interim Date shall automatically be extended on a day for day basis until such date as Buyer receives such information. If Seller and Escrow Holder have not received the Objection Notice from Buyer by the Interim Date, that shall be deemed Buyer's unconditional approval of the condition of title to the Property and the Survey, subject to Section 4.2.4 below. For the avoidance of doubt, in the event that Buyer fails to obtain the Survey, Buyer shall not be entitled to disapprove or object to any survey matters shown on any existing survey delivered by Seller in the Objection Notice or otherwise, and such survey matters shall be deemed approved by Buyer if Buyer does not terminate this Agreement prior to the Contingency Deadline pursuant to Section 4.1.2 above. Except as provided in this Section 4.2, Seller shall have until the date which is two (2) business days prior to the Outside First Closing Date to make such arrangements or take such steps as the parties shall mutually agree to satisfy Buyer's objection(s) set forth in the Objection Notice; provided, however, that, except with respect to liens secured by deeds of trust securing loans made to Seller, mechanics' liens relating to work authorized and contracted by Seller, judgment liens against Seller, and delinquent taxes (herein "Monetary Liens", which Seller agrees to have removed on or before the First Closing Date), Seller shall have no obligation whatsoever to expend or agree to expend any funds, to undertake or agree to undertake any obligations or otherwise to cure or agree to cure any of Buyer’s objections in the Objection Notice. Within two (2) business days of receipt of the Objection Notice, Seller may, in its sole discretion, deliver

 

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written notice to Buyer and Escrow Holder identifying which disapproved items Seller shall undertake to cure or not cure ("Seller's Response"). If Seller does not deliver a Seller's Response within said two (2) business day period, Seller shall be deemed to have elected to not remove or otherwise cure any exceptions disapproved by Buyer. If Seller elects, or is deemed to have elected, not to remove or otherwise cure an exception disapproved in the Objection Notice, and Buyer does not terminate this Agreement prior to the Contingency Deadline pursuant to Section 4.1.2 above, Buyer shall be deemed to have approved Seller’s Response (or, if applicable, Seller’s deemed election to not remove or otherwise cure any exceptions disapproved by Buyer) and irrevocably waived its objection to any title and/or survey matters which Seller has not expressly undertaken to cure in Seller’s Response. Except for Monetary Liens, all matters shown in the PTR and the Survey obtained by Buyer with respect to which Buyer fails to give an Objection Notice on or before the Interim Date shall be deemed to be approved by Buyer.  For the avoidance of doubt, nothing in this Section 4.2.1 shall limit or modify the parties’ rights and obligations with respect to the Subdivision Map for the Common Lot as set forth in Section 3.2.3 above.

4.2.2Notwithstanding anything to the contrary herein, Buyer may not object to any of the following title matters in the Objection Notice: (i) the preprinted standard exceptions in the PTR, (ii) non-delinquent real property taxes and special assessments, and (iii) zoning and other regulatory laws and ordinances applicable the Property (collectively, the "Permitted Title Matters"). Buyer hereby acknowledges and agrees that the owner’s policy of title insurance that Buyer obtains from the Title Company insuring Buyer’s title to the Property (the "Title Policy") may be subject to (a) the Permitted Title Matters, (b) any exceptions approved in writing or deemed approved by Buyer pursuant to Section 4.2.1, (c) any exceptions arising from Buyer’s inspections of the Property, (d) any matters which would be disclosed by an accurate survey or physical inspection of the Property, and (e) in the case of the Second Closing Property only, any title exceptions associated with the final subdivision of the Second Closing Property which have been approved in writing by Buyer (collectively, the “Permitted Title Encumbrances”). Buyer also acknowledges and agrees that if the Survey that Buyer obtains and delivers to the Title Company is not an ALTA survey acceptable to the Title Company for purposes of issuing an ALTA extended coverage owner’s policy of title insurance, then the Title Company would issue or be committed to issue an ALTA extended coverage owner’s policy of title insurance with a general survey exception. Buyer shall pay the additional premium for extended coverage in excess of a standard CLTA policy and any endorsements requested by Buyer.

4.2.3If Seller delivers a Seller’s Response to Buyer specifying that Seller elects to cure any one or more of the title or survey matters objected to by Buyer in the Objection Notice, and Seller is unable or unwilling to make such arrangements or take such steps to address such objections that Seller has elected to satisfy in the Seller’s Response to Buyer’s reasonable satisfaction on or prior to the date which is two (2) business days prior to the Outside First Closing Date (the "Cure Deadline"), then Buyer may (as its sole and exclusive remedy) terminate this Agreement by delivering written notice thereof to Seller within two (2) days following the Cure Deadline, in which event, the Deposit (less the Independent Consideration) and any Second Closing Funds deposited with Escrow Holder will be returned to Buyer and, except for Buyer's indemnity and Buyer’s and Seller’s confidentiality obligations under this Agreement and any other obligations which expressly survive termination of this Agreement, the parties shall have no further rights or obligations to one another under this Agreement. If Buyer does not deliver such written notice of termination to Seller prior to the date which is two (2) days following the Cure Deadline, then the title and/or survey matters that Buyer objected to in the Objection Notice that Seller has elected to cure, and which Seller is subsequently unable or unwilling to cure, shall be deemed approved by Buyer and will be included as exceptions to the Title Policy. The foregoing shall not be applicable to Monetary Liens, which Seller is obligated to cure as a condition to either Closing for Buyer’s benefit.

 

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4.2.4If Buyer elects not to terminate this Agreement in accordance with Section 4.2.1 above, Buyer may cause Title Company to reissue from time to time the PTR prior to the applicable Closing, including without limitation, an updated PTR that applies solely to the Second Closing Property following the recordation of the Subdivision Map with respect thereto. Buyer shall have the right to object to any new exceptions, other than (i) the Permitted Title Matters or (ii) any restrictions or conditions arising from the subdivision of the Common Lot that have been approved by Buyer pursuant to Sections 3.2.3(e) and 3.2.3(f) above, which may appear of record or be revealed by any updated PTR within three (3) business days after Buyer’s receipt of such updated PTR, but in no event later than the date that is three (3) days prior to the applicable scheduled Closing Date, in which event the same procedures for response, termination and waiver set forth above in Section 4.2.1 including, without limitation, Seller’s obligations with respect to Monetary Liens, shall apply to such new objections, with respect to applicable Closing and all other dates set forth for performance of the parties’ obligations hereunder adjusted accordingly and, if necessary, the Closing Date shall be extended for such purposes.

Conditions Precedent to Buyer's Obligation to Close

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4.3.1First Closing. Buyer’s obligation to close the acquisition of the First Closing Property pursuant to this Agreement is subject to the satisfaction or waiver of the following conditions:

(a)Seller's Performance. Seller shall have duly performed in all material respects each and every covenant of Seller hereunder with respect to the First Closing, unless the failure or failures to perform in all material respects such covenants would not, in the aggregate, have a Material Adverse Effect (as defined in Section 18.9 below), and Seller shall have delivered all of the documents required to be delivered by Seller pursuant to Section 5.1.

(b)Accuracy of Representations and Warranties. On the First Closing Date, all representations and warranties made by Seller in Section 11 shall be true and correct in all material respects as if made on and as of the First Closing Date (subject to modifications permitted under this Agreement), unless the failure or failures of all such representations and warranties to be true and correct in all material respects would not, in the aggregate, have a Material Adverse Effect.

(c)Title Policy. The irrevocable commitment of the Title Company to issue the Title Policy to Buyer, insuring Buyer’s interest in the First Closing Property dated as of the First Closing Date, with liability in the amount of the First Closing Purchase Price, subject only to the Permitted Title Encumbrances applicable to the First Closing Property upon payment of its regularly scheduled premiums therefor.

(d)No Material Change. There shall be no change in the environmental condition of the First Closing Property from the condition that existed upon the expiration of the Contingency Deadline that would have a Material Adverse Effect.

(e)Subdivision of Unimproved Land. A subdivision map subdividing the Unimproved Land as described in the Summary and Definition of Basic Terms shall have been recorded in the Official Records and an assessor parcel number issued.

(f)Other Conditions. Any other condition set forth in this Agreement to Buyer’s obligation to close the acquisition of the First Closing Property has been satisfied by the applicable date.

 

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4.3.2Second Closing. Buyer’s obligation to close the acquisition of the Second Closing Property pursuant to this Agreement is subject to the satisfaction or waiver of the following conditions:

(a)Seller's Performance. Seller shall have duly performed in all material respects each and every covenant of Seller hereunder with respect to the Second Closing Property, unless the failure or failures to perform in all material respects such covenants would not, in the aggregate, have a Material Adverse Effect (as defined in Section 18.9 below), and Seller shall have delivered all of the documents required to be delivered by Seller pursuant to Section 5.1.

(b)Occurrence of First Closing.  On the Second Closing Date, the First Closing shall have occurred as specified in this Agreement.

(c)Accuracy of Representations and Warranties. On the Second Closing Date, all representations and warranties made by Seller in Section 11 shall be true and correct in all material respects as if made on and as of the Second Closing Date (subject to modifications permitted under this Agreement), unless the failure or failures of all such representations and warranties to be true and correct in all material respects would not, in the aggregate, have a Material Adverse Effect.

(d)Title Policy. The irrevocable commitment of the Title Company to issue the Title Policy to Buyer, insuring Buyer’s interest in the Second Closing Property dated as of the Second Closing Date, with liability in the amount of the Second Closing Purchase Price, subject only to the Permitted Title Encumbrances applicable to the Second Closing Property upon payment of its regularly scheduled premiums therefor.

(e)No Material Change. There shall be no change in the environmental condition of the Second Closing Property from the condition that existed upon the expiration of the Contingency Deadline that would have a Material Adverse Effect.

(f)Subdivision of Google Common Lot. The Subdivision Map subdividing the Google Common Lot from the Common Lot shall have been recorded in the Official Records and an assessor parcel number issued.

(g)Other Conditions. Any other condition set forth in this Agreement to Buyer’s obligation to close the acquisition of the Second Closing Property has been satisfied by the applicable date.

Failure of Conditions Precedent to Buyer's Obligations

. Buyer's obligation to close on the acquisition of the Property at each Closing pursuant to this Agreement is subject to the satisfaction of the relevant conditions precedent to such Closing for Buyer's benefit set forth in Section 4.3. If Buyer timely provides a Buyer's Disapproval Notice or if Buyer terminates this Agreement by notice to Seller because of the failure of the conditions precedent set forth in Section 4.3, then (a) Escrow Holder shall return the Deposit (less the Independent Consideration) and Second Closing Funds, if any, to Buyer (plus interest accrued on the Deposit and Second Closing Funds only while held by Escrow Holder) in accordance with Buyer's written instructions within five (5) business days following Buyer's delivery of a written termination notice to Seller and Escrow Holder, (b) Seller and Buyer shall each pay one‑half (1/2) of any escrow cancellation fees or charges, and (c) except for Buyer's indemnity and Buyer’s and Seller’s confidentiality obligations under this Agreement and any other obligations which expressly survive termination of this Agreement, the parties shall have no further rights or obligations to one another under this Agreement.

 

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4.5Conditions Precedent to Seller's Obligations.

4.5.1Each Closing and Seller's obligations with respect to the transactions contemplated by this Agreement are subject to the timely satisfaction or waiver of the following conditions:

(a)Buyer shall have duly performed in all material respects each and every covenant of Buyer hereunder and Buyer shall have delivered all of the documents required to be delivered by Buyer pursuant to Section 5.2;

(b)Buyer's representations and warranties set forth in this Agreement shall be true and correct in all material respects as of the relevant Closing Date as if made on and as of such Closing Date. Without limitation of the foregoing, Buyer shall have timely delivered the Purchase Price pursuant to the provisions of Section 2 above; and

(c)For the Second Closing Property only, the Subdivision Map subdividing the Google Common Lot from the Common Lot shall have been recorded in the Official Records and an assessor parcel number issued.

4.5.2In the event any of the conditions set forth in Section 4.5.1 have not been timely satisfied, Seller may elect to either (a) terminate this Agreement by delivery of written notice to Buyer and Escrow Holder (provided that the Deposit and the Second Closing Funds (if deposited with Escrow Holder) shall be refunded to Buyer, or (b) waive the applicable condition(s) and proceed to the relevant Closing. If Seller terminates this Agreement pursuant to this Section 4.5.2, then (A) Seller and Buyer shall each pay one-half (1/2) of any escrow cancellation fees or charges, and (B) except for Buyer's indemnity and Buyer's and Seller's confidentiality obligations under this Agreement and any other obligations which expressly survive termination of this Agreement, the parties shall have no further rights or obligations to one another under this Agreement.

Effect of Closing or Termination

. Each Closing shall constitute conclusive evidence that Seller and Buyer have respectively waived any conditions which are not satisfied as of the applicable Closing, and after such Closing, neither Buyer nor Seller shall have any right to terminate this Agreement or rescind the purchase and sale of the Property at such Closing by reason of the failure of any such condition to the extent applicable to such Closing, whether or not such failure was known to or discoverable prior to such Closing.

Defective Condition Extension; Termination

. The obligations of Seller under this Agreement are further subject to and contingent upon the following:

4.7.1If Buyer requests and Seller permits, in accordance with Section 4.1.1, any air sampling or other environmental testing or investigation, or any other inspection that could materially alter the physical condition of the Property, other than a non-intrusive Phase I environmental inspection, and as a result of such testing, investigation or other inspection, Seller obtains knowledge of, or Buyer’s inspection of the Property reveals, either (a) the presence of any Hazardous Substances (as defined in Section 10.1.2 of this Agreement) or the violation or potential violation of any Environmental Laws (as defined in Section 10.1.2 of this Agreement) or (b) any structural or other defect in the Improvements, whether or not in violation of any applicable law, ordinance, code, regulation or decree of any governmental authority having jurisdiction over the Property (collectively, a "Defective Condition"), which Seller, in its sole judgment, determines could constitute a potential liability to Seller after either Closing or should be remedied prior to the sale of the Property, Seller shall have the right upon written notice to Buyer on or before the scheduled Closing Date to extend the Outside First Closing Date only for

 

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the period of time necessary to evaluate the possibility of remediating the Defective Condition (not to exceed sixty (60) days) and, if Seller so elects, to complete such remediation at Seller's sole cost and expense. The terms of this Section 4.7 are solely for the benefit of Seller and Buyer shall have no additional right or remedy hereunder as a result of the exercise by Seller of its rights under this Section 4.7.

5.Deliveries to Escrow Holder.

Seller's Deliveries

. Seller hereby covenants and agrees to deliver or cause to be delivered to Escrow Holder at least one (1) business day prior to each Closing Date the following funds, instruments and documents, the delivery of each of which shall be a condition to such Closing:

5.1.1Deed. A Grant Deed (the "Deed") in the form of Exhibit "B" attached hereto, duly executed and acknowledged in recordable form by Seller, conveying Seller's interest in the applicable Property to Buyer;

5.1.2Non-Foreign Certifications. Certificates duly executed by Seller in the forms of Exhibit "C‑1" and "C‑2" attached hereto (the "Tax Certificates");

5.1.3Assignment of Contracts and Assumption Agreement. Two (2) counterparts of the Assignment of Contracts and Assumption Agreement in the form attached hereto as Exhibit "F" ("Assignment of Contracts"), duly executed by Seller, pursuant to which Seller shall assign to Buyer all of Seller's right, title and interest in, under and to the Contracts;

5.1.4Bill of Sale. Two (2) counterparts of a Bill of Sale in the form attached hereto as Exhibit "G" ("Bill of Sale"), duly executed by Seller, conveying Seller's right, title and interest in and to the Personal Property;

5.1.5General Assignment. Two (2) counterparts of a General Assignment in the form of Exhibit "H" attached hereto (the "General Assignment"), duly executed by Seller;

5.1.6NetApp Lease. With respect to the First Closing only, two (2) counterparts of the Lease Agreement (the "NetApp Lease") duly executed by Seller, pursuant to which Seller, as tenant, shall lease back from Buyer, as landlord, the portion of the Real Property known as 495 Java Drive for a term beginning on the First Closing Date and expiring on February 28, 2018. The terms of the NetApp Lease shall be mutually approve by Buyer and Seller prior to the expiration of the Property Approval Period and shall, at a minimum, provide that Seller shall pay, in addition to base rent, which shall be charged at a rate equal to $2.85 per rentable square foot per month on a triple net basis, its pro rata portion of operating expenses and real property taxes, as such real property taxes may be adjusted as a result of the sale of the Real Property to Buyer as contemplated herein;

5.1.7Revised CC&Rs. With respect to the First Closing only, two (2) copies of the Revised CC&Rs, approved by Buyer and duly executed and acknowledged in a recordable form by Seller, setting forth the respective rights and obligations of Buyer and Seller with respect to the Common Lot during the period prior to the recordation of the Subdivision Map and the transfer of the Google Common Lot to Buyer; and

5.1.8Proof of Authority. Such proof of Seller's authority and authorization to enter into this Agreement and the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Seller to act for and bind Seller, as may be reasonably required by Title Company.

 

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Buyer's Deliveries

. Buyer hereby covenants and agrees to deliver or cause to be delivered to Escrow Holder at least one (1) business day prior to each Outside Closing Date (unless another date is specified below) the following funds, instruments and documents, the delivery of each of which shall be a condition to Closing:

5.2.1Buyer's Funds. On or prior to the First Closing Date, the balance of the Purchase Price in accordance with Section 2 above, and on or prior to the applicable Closing Date such additional funds, if any, necessary to comply with Buyer's obligations hereunder regarding prorations, credits, costs and expenses;

5.2.2Assignment of Contracts. Two (2) counterparts of an Assignment of Contracts duly executed by Buyer;

5.2.3Bill of Sale. Two (2) counterparts of the Bill of Sale duly executed by Buyer;

5.2.4General Assignment. Two (2) counterparts of the General Assignment duly executed by Buyer;

5.2.5NetApp Lease. With respect to the First Closing only, two (2) counterparts of the NetApp Lease duly executed by Buyer;

5.2.6Revised CC&Rs. With respect to the First Closing only, written approval of the Revised CC&Rs submitted to Escrow Holder by Seller; and

5.2.7Proof of Authority. Such proof of Buyer's authority and authorization to enter into this Agreement and the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Buyer to act for and bind Buyer, as may be reasonably required by Title Company.

Deliveries Upon Closing

. Upon each Closing, Escrow Holder shall promptly undertake all of the following:

Tax Filings

. The Title Company shall file the information return for the sale of the Property required by Section 6045 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder;

Prorations

. Prorate all matters referenced in Section 8 based upon the closing statement delivered into escrow with Escrow Holder signed by the parties;

Recording

. Cause the Revised CC&Rs (as to the First Closing), applicable Deed and any other documents which the parties hereto may mutually direct, to be recorded in the Official Records in the order mutually directed by the parties;

Buyer Funds

. Disburse from funds deposited by Buyer with Escrow Holder towards payment of all items and costs (including the First Closing Purchase Price or the Second Closing Purchase Price, as applicable) chargeable to the account of Buyer pursuant hereto in payment of such items and costs and disburse the balance of such funds, if any, to Buyer;

 

 

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Documents to Seller

.

6.5.1At the First Closing, deliver to Seller one (1) set of originals of the NetApp Lease, the Assignment of Contracts, the Bill of Sale and the General Assignment executed by Buyer and Seller and a conformed copy of the recorded Deed for the First Closing Property and the Revised CC&Rs;

6.5.2At the Second Closing, deliver to Seller one (1) conformed copy of the recorded Deed, the Bill of Sale, the Assignment of Contracts and the General Assignment for the Second Closing Property.

Documents to Buyer

.

6.6.1At the First Closing, deliver to Buyer one (1) set of originals of the Tax Certificates, the NetApp Lease, Assignment of Contracts, Bill of Sale and General Assignment executed by Seller, a conformed copy of the Revised CC&Rs and recorded Deed for the First Closing Property, and, when issued, the Title Policy for the First Closing Property;

6.6.2At the Second Closing, deliver to Buyer a conformed copy of the recorded Deed, along with the Assignment of Contracts, Bill of Sale and the General Assignment for the Second Closing Property and, when issued, the Title Policy for the Second Closing Property.

Seller Funds

. Deduct all items chargeable to the account of Seller pursuant to Section 7. If, as the result of the net prorations and credits pursuant to Section 8, amounts are to be charged to the account of Seller, deduct the total amount of such charges (unless Seller elects to deposit additional funds for such items in escrow with Escrow Holder); and if amounts are to be credited to the account of Seller, disburse such amounts to Seller, or in accordance with Seller's instructions, at each Closing. Disburse the First Closing Purchase Price and the Second Closing Purchase Price (as adjusted in accordance with this Agreement) to Seller, as applicable, or as otherwise directed by Seller, promptly upon each Closing in accordance with Seller's wire transfer instructions.

Costs and Expenses

. Seller shall pay (i) that portion of the Title Policy premium for standard CLTA owner's coverage (without endorsements), (ii) all documentary transfer taxes assessed by the County, and (iii) the Escrow Holder's fee. In addition, Seller shall pay outside of Escrow all legal and professional fees and costs of attorneys and other consultants and agents retained by Seller. Buyer shall pay through Escrow (x) all document recording charges and, (y) the additional Title Policy premium for ALTA extended coverage and any title endorsements requested by Buyer. Buyer shall pay outside of Escrow all costs and expenses related to the Due Diligence Investigations, all charges for the Survey or any other survey, and all legal and professional fees and costs of attorneys and other consultants and agents retained by Buyer. The cost of subdividing the Common Lot shall be as provided for elsewhere in this Agreement.

Prorations

. The following prorations between Seller and Buyer shall be made by Escrow Holder computed as of each Closing Date as indicated below, in each instance, based on either the actual number of days in the year or, if applicable, the actual number of days in the calendar month, in which each Closing occurs.

Ad Valorem Taxes

. All real estate taxes and assessments attributable to the First Closing Property and the Second Closing Property will be prorated as of the First Closing Date and the Second Closing Date, respectively. Seller shall be charged with all such taxes up to, but not including, each Closing Date. If the applicable tax rate and assessments for the applicable Property have not been

 

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established for the tax year in which the applicable Closing occurs, the proration of real estate taxes, and assessments will be based upon the rate and assessments for the preceding year plus two percent (2%) with a post-closing reconciliation when the actual tax bills are available. Real property tax refunds and credits received after each Closing which are attributable to a fiscal tax year prior to such Closing shall belong to Seller, and those which are attributable to the fiscal tax year in which each Closing occurs shall be prorated based upon the date of such Closing.

Excise, Transfer and Sales Taxes

. Buyer will be responsible for the payment of all excise, transfer and use taxes imposed with respect to the conveyance of any personal property contemplated by this Agreement; provided that the parties agree that no value has been attributed to any personal property included in the sale.

Operating Expenses

. With respect to the First Closing, all utility service charges for electricity, heat and air conditioning service, other utilities, elevator maintenance, common area maintenance, taxes other than real estate taxes such as rental taxes, other expenses incurred in operating the First Closing Property only that Seller customarily pays shall be prorated on an accrual basis so long as Seller has delivered written notice to Buyer at least five (5) business days prior to the Contingency Deadline of any such charges it intends to prorate. Seller shall pay all such expenses that accrue in connection with the First Closing Property prior to the First Closing Date, and Buyer shall pay all such expenses accruing on and after the First Closing Date with respect to the First Closing Property. All such expenses as to the Second Closing Property shall be paid by Buyer and Seller in accordance with the Revised CC&Rs. Seller and Buyer shall obtain billings and meter readings as of the First Closing Date (or shall make reasonable estimates of meter readings if same-day readings are not available) to aid in such prorations (if such utilities cannot be changed to Buyer’s name on the First Closing Date). Insurance or any other operating expense refunds and credits received after the First Closing which are attributable to a time period prior to the First Closing shall belong to Seller, and those which are attributable to a time period in which the Closing occurs shall be prorated based upon the date of the First Closing.

Contracts

. Amounts payable under the Contracts being assigned to Buyer shall be prorated on an accrual basis. Seller shall pay all amounts due thereunder which accrue prior to the applicable Closing Date and Buyer shall pay all amounts accruing on such Closing Date and thereafter.

Prorations at Closing; Final Adjustment

. At least two (2) business days prior to each Closing Date, the parties shall agree upon all of the prorations to be made and submit a statement to Escrow Holder setting forth the same. In the event that any prorations, apportionments or computations made under Section 8 through Section 8.5 shall require final adjustment, then the parties shall make the appropriate adjustments promptly when accurate information becomes available and either party hereto shall be entitled to an adjustment to correct the same, but in no event shall such final adjustment occur later than 120 days after the applicable Closing Date. Any corrected adjustment or proration shall be paid in cash to the party entitled thereto. The provisions of this Section 8.5 shall survive each Closing.

Covenants of Seller

. Seller hereby covenants with Buyer, as follows:

Contracts

.

9.1.1Existing Contracts. If Buyer shall elect, by giving notice thereof to Seller not later than five (5) days prior the First Closing Date or the Second Closing Date, as applicable, not to take the Property subject to any one or more of the Contracts listed in Exhibit "J" attached hereto, then Seller shall, to the extent permitted under any such Contract, give prompt notice of termination thereof to the other party or parties thereto in order to terminate the same either (a) at or prior to the applicable Closing Date or (b) the earliest date permitted under any such Contract, whichever shall be later.

 

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9.1.2New Contracts and Leases. Between the Effective Date and the date which is three (3) business days prior to the expiration of the Property Approval Period, (i) Seller will keep Buyer informed of any new Contracts that are entered into by Seller or any amendments or modifications to the existing Contracts, which new Contracts or modifications will survive Closing or otherwise affect the use, operation or enjoyment of the Property after Closing (collectively, "New Contracts"), and (ii) Buyer shall have no right to object or consent to the terms or conditions of any such New Contracts or amendments or extensions thereto. Without limiting the generality of the foregoing, Seller will provide Buyer with copies of all New Contracts. Subsequent to the date which is three (3) business days prior to the expiration of the Property Approval Period, and continuing until each First Closing or Second Closing (provided the Agreement has not been terminated), Seller will not enter into any New Contracts associated with the First Closing Property or Second Closing Property, as applicable, without Buyer's prior written consent, which consent may be withheld in Buyer's sole discretion, and which consent will be deemed to have been denied by Buyer if Buyer does not notify Seller in writing to the contrary within three (3) business days after Seller provides written notice to Buyer of such New Contract; provided, however, that Seller shall be entitled to enter into any New Contracts at any time, without Buyer’s prior written consent, if such New Contracts are terminable within thirty (30) days at no cost to Buyer and are terminated by Seller prior to the applicable Closing Date. From and after the Effective Date, Seller shall not enter into any leases, licenses or other similar occupancy agreements applicable to the Real Property, or any portion thereof, without Buyer's prior written consent, which consent may be withheld in Buyer's sole discretion.

Operation in the Ordinary Course

. Subject to Section 9.1 above, from the Effective Date until each Closing, Seller shall (i) operate and manage the Property in the ordinary course and consistent with Seller's past practices (except for the subdivision of the Common Lot pursuant to the terms of this Agreement), and (ii) perform when due, and otherwise comply with, all of Seller's material obligations and duties under the Contracts. None of the Personal Property shall be removed from the Real Property, unless replaced by unencumbered personal property of equal or greater utility and value. All Personal Property and Intangible Personal Property shall be conveyed to Buyer by Seller at Closing free from any liens, encumbrances or security interests of any kind or nature other than all such matters that the Title Policy may be subject to as set forth in Section 4.2.2, including, without limitation, the Permitted Title Matters.

AS-IS Sale and Purchase

. Buyer acknowledges, by its initials as set forth below, that the provisions of this Section 10 have been required by Seller as a material inducement to enter into the contemplated transactions, and the intent and effect of such provisions have been explained to Buyer by Buyer's counsel and have been understood and agreed to by Buyer.

Buyer's Acknowledgment

. As a material inducement to Seller to enter into this Agreement and to convey the Property to Buyer, Buyer hereby acknowledges and agrees that:

10.1.1AS-IS. Except as otherwise expressly set forth in this Agreement and in the documents delivered by Seller to Buyer at the applicable Closing, and subject to Seller's representation and warranties expressly set forth in this Agreement, Buyer is purchasing the Property in its existing condition, "AS-IS, WHERE-IS, WITH ALL FAULTS," and upon the Contingency Deadline has made or has waived all inspections and investigations of the Property and its vicinity which Buyer believes are necessary to protect its own interest in, and its contemplated use of, the Property.

___________/s/ DR___________
Buyer's Initials

 

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10.1.2No Representations. Other than the express representations and warranties of Seller contained in this Agreement and in the documents delivered by Seller to Buyer at the Closing, neither Seller, nor any person or entity acting by or on behalf of Seller, nor any direct or indirect partner, officer, director, member, manager, employee, agent, affiliate, successor or assign of Seller (collectively, the "Seller Group") has made any representation, warranty, inducement, promise, agreement, assurance or statement, oral or written, of any kind to Buyer upon which Buyer is relying, or in connection with which Buyer has made or will make any decisions concerning the Property or its vicinity including its use, condition, value, entitlements, condemnation actions (current or prospective), compliance with Governmental Regulations (defined below), existence or absence of Hazardous Substances, or the permissibility, feasibility, or convertibility of all or any portion of the Property for any particular use or purpose, including its present or future prospects for sale, lease, development, occupancy or suitability as security for financing. As used herein, the term "Governmental Regulations" means any laws (including Environmental Laws), ordinances, rules, requirements, resolutions, policy statements and regulations (including those relating to land use, subdivision, zoning, Hazardous Substances, occupational health and safety, handicapped access, water, earthquake hazard reduction, and building and fire codes) of any governmental or quasi-governmental body or agency claiming jurisdiction over the Property. As used in this Agreement, the following definitions shall apply: "Environmental Laws" shall mean all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, as amended from time to time, and all federal and state court decisions, consent decrees and orders interpreting or enforcing any of the foregoing, in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and includes the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., and the Clean Water Act, 33 U.S.C. § 1251, et seq. "Hazardous Substances" shall mean any substance or material that is described as a toxic or hazardous substance, waste or material or a pollutant or contaminant, or words of similar import, in any of the Environmental Laws, and includes asbestos, petroleum (including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), petroleum-based products and petroleum additives and derived substances, lead-based paint, mold, fungi or bacterial matter, polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive matter, medical waste, and chemicals which may cause cancer or reproductive toxicity.

___________/s/ DR___________
Buyer's Initials

 

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10.1.3No Implied Warranties. Excluding any express representation or warranty set forth herein and in the documents delivered by Seller to Buyer at each Closing, Seller hereby specifically disclaims: (a) all warranties implied by law arising out of or with respect to the execution of this Agreement, any aspect or element of the Property, or the performance of Seller's obligations hereunder including all implied warranties of merchantability, habitability and/or fitness for a particular purpose; and (b) any warranty, guaranty or representation, oral or written, past, present or future, of, as to, or concerning (i) the nature and condition of the Property or other items conveyed hereunder, including the water, soil, and geology, the suitability thereof and of the Property or other items conveyed hereunder for any and all activities and uses which Buyer may elect to conduct thereon, the existence of any environmental hazards or conditions thereon (including to the presence of asbestos or other Hazardous Substances) or compliance with applicable Environmental Laws; (ii) the nature and extent of any right-of-way, lease, possession, lien, encumbrance, license, reservation, current or potential eminent domain proceedings, condition or otherwise; and (iii) the compliance of the Property or other items conveyed hereunder or its operation with any Governmental Regulations.

_________/s/ DR__________
Buyer's Initials

10.1.4Information Supplied by Seller. Buyer specifically acknowledges and agrees that, except as expressly contained in this Agreement and in the documents delivered by Seller to Buyer at each Closing, Seller has made no representation or warranty of any nature concerning the accuracy or completeness of any documents delivered or made available for inspection by Seller to Buyer, including the Due Diligence Items and that Buyer has undertaken such inspections of the Property as Buyer deems necessary and appropriate and that Buyer is relying solely upon such investigations and not on any of the Due Diligence Items or any other information provided to Buyer by or on behalf of Seller. As to the Due Diligence Items, Buyer specifically acknowledges that they have been prepared by third parties with whom Buyer has no privity and Buyer acknowledges and agrees that no warranty or representation, express or implied, has been made, nor shall any be deemed to have been made, to Buyer with respect to any and all Due Diligence Items, either by the Seller Group or by any third parties that prepared the same.

__________/s/ DR_________
Buyer's Initials

10.1.5Release. As of each Closing, Buyer and the Buyer Parties (as defined below) hereby (i) assume the risk of adverse matters, including adverse physical conditions, defects, construction defects, environmental, health, safety and welfare matters which may not have been revealed by Buyer’s investigation and evaluation of the First Closing Property or Second Closing Property, as applicable, and (ii) fully and irrevocably release the Seller Group from any and all claims that Buyer and/or the Buyer Parties may have or thereafter acquire against the Seller Group for any cost, loss, liability, damage, expense, demand, action or cause of action ("Claims") arising from or related to any matter of any nature relating to, and the condition of, such Property, including any Claims arising in connection with any latent or patent construction defects, errors or omissions, compliance with law matters, Hazardous Substances and other environmental matters within, under or upon, or in the vicinity of the relevant Property, any statutory or common law right Buyer may have to receive disclosures from Seller, including any disclosures as to the Property's location within areas designated as subject to flooding, fire, seismic or earthquake risks by any federal, state or local entity, the need to obtain flood insurance, the certification of water heater bracing and/or the advisability of obtaining title insurance, or any other condition or circumstance affecting the relevant Property, its financial viability, use or operation, or any portion thereof. This release includes Claims of which Buyer is presently unaware or which Buyer does not presently suspect to exist in its favor which, if known by Buyer, would materially

 

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affect Buyer's release of the Seller Group. In connection with the general release set forth in this Section 10.1.5, Buyer specifically waives the provisions of California Civil Code Section 1542, which provides as follows:

"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."

___________/s/ DR__________
Buyer's Initials

Notwithstanding anything to the contrary set forth in this Section 10.1.5, the foregoing release is not intended to and does not cover (i) any claims arising from a breach of Seller's representations or warranties expressly set forth in this Agreement or in the documents delivered by Seller to Buyer at each Closing (ii) any other breach by Seller of an express obligation of Seller under this Agreement which by its terms survives Closing, or (iii) Seller’s fraud; or (iv) any liability of Seller under the NetApp Lease (herein collectively the "Excluded Claims").

10.1.6California Specific Provisions.

(a)Section 25359.7 of the California Health and Safety Code requires owners of nonresidential property who know or have reasonable cause to believe that a release of Hazardous Substances have come to be located on or beneath real property to provide written notice of that condition to a buyer of said real property. There is a possibility that a release of Hazardous Substances may have come to be located on or beneath the Property. By Buyer's execution of this Agreement, Buyer (a) acknowledges Buyer's receipt of the foregoing notice given pursuant to Section 25359.7 of the California Health and Safety Code and that it is aware of the benefits conferred to Buyer by Section 1542 of the California Civil Code and the risks it assumes by any waiver of Buyer's benefits thereunder and (b) as of the Closing Date and after receiving advice of Buyer's legal counsel, waives any and all rights or remedies whatsoever, express, implied, statutory or by operation of law, Buyer may have against Seller, including remedies for actual damages under Section 25359.7 of the California Health and Safety Code, arising out of or resulting from any unknown, unforeseen or unanticipated presence or releases of Hazardous Substances or other hazardous materials from, on or about the Property.

(b)Buyer and Seller acknowledge that Seller is required to disclose if any of the Property lies within the following natural hazardous areas or zones: (i) a special flood hazard area (any type Zone "A" or "V") designated by the Federal Emergency Management Agency (Cal. Gov. Code § 8589.3); (ii) an area of potential flooding shown on a dam failure inundation map designated pursuant to California Government Code Section 8589.5 (Cal. Gov. Code § 8589.4); (iii) a very high fire hazard severity zone designated pursuant to California Government Code Section 51178 or 51179 (in which event the owner maintenance obligations of California Government Code Section 51182 would apply) (Cal. Gov. Code § 51183.5); (iv) a wildland area that may contain substantial forest fire risks and hazards designated pursuant to California Public Resources Code Section 4125 (in which event (x) the Property owner would be subject to maintenance requirements of California Public Resources Code Section 4291 and (y) it would not be the State's responsibility to provide fire protection services to any building or structure located within the wildland area except, if applicable, pursuant to California Public Resources Code Section 4129 or pursuant to a cooperative agreement with a local agency for those

 

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purposes pursuant to California Public Resources Code Section 4142) (Cal. Pub. Resources Code § 4136); (v) an earthquake fault zone (Cal. Pub. Resources Code § 2621.9); or (vi) a seismic hazard zone (and, if applicable, whether a landslide zone or liquefaction zone) (Cal. Pub. Resources Code § 2694). As contemplated in California Civil Code Section 1103.2(b), if an earthquake fault zone, seismic hazard zone, very high fire hazard severity zone or wildland fire area map or accompanying information is not of sufficient accuracy of scale for the Natural Hazard Expert to determine if the Property is within the respective natural hazard zone, then for purposes of the disclosure the Property shall be considered to lie within such natural hazard zone. Buyer acknowledges and agrees that the written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges Seller for errors or omission not within their personal knowledge and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. In no event shall Seller have any responsibility for matters not actually known to Seller. THESE HAZARDS MAY LIMIT THE BUYER'S ABILITY TO DEVELOP THE PROPERTY, TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER. THE MAPS ON WHICH THESE DISCLOSURES ARE BASED ON ESTIMATES WHERE NATURAL HAZARDS EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A PROPERTY WILL BE AFFECTED BY A NATURAL DISASTER. BUYER MAY WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING THOSE HAZARDS AND OTHER HAZARDS THAT MAY AFFECT THE PROPERTY.

10.1.7Survival. The provisions of this Section 10.1 shall survive each Closing.

Seller's Representations and Warranties

. Subject at all times to (i) those matters, if any, disclosed in the Due Diligence Items or any other information delivered to Buyer, and (ii) all applicable provisions of this Agreement, Seller represents and warrants to Buyer as of the Effective Date as follows (provided that, each of the representations and warranties set forth herein is qualified to the extent of any applicable information or exception that is otherwise disclosed in another representation or warranty of Seller herein):

Formation; Authority

. Seller is duly formed, validly existing, and in good standing under laws of the state of its formation. Seller has full power and authority to enter into this Agreement and to perform this Agreement. The execution, delivery and performance of this Agreement by Seller have been duly and validly authorized by all necessary action on the part of Seller and all required consents and approvals have been duly obtained. All requisite action has been taken by Seller in connection with the entering into of this Agreement and the instruments referenced herein and the consummation of the transactions contemplated hereby. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Seller have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof.

Leases

. As of the Effective Date, Seller shall not be a party to any leases, licenses or other similar occupancy agreements with respect to the leasing or occupancy of the Real Property.

Litigation

. There is no litigation, arbitration or other legal or administrative suit, action, proceeding or investigation of any kind pending or, to Seller’s knowledge, threatened in writing against Seller relating to ownership or operation of the Real Property or any part thereof which is not covered by insurance, including any condemnation action relating to the Real Property or any part thereof.

Foreign Person

. Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.

 

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No Bankruptcy

. No petition in bankruptcy (voluntary or otherwise), attachment, execution proceeding, assignment for the benefit of creditors, or petition seeking reorganization or insolvency, arrangement or other action or proceeding under federal or state bankruptcy law is pending against or contemplated (or, to Seller’s actual knowledge, threatened) by or against Seller.

Contracts

. Attached hereto as Exhibit “J” is a true, correct and complete list of all management, service, supply, repair and maintenance agreements, equipment leases and all other contracts and agreements with respect to or affecting the Property as of the Effective Date and at each Closing the contract list shall not include those Contracts being terminated pursuant to the provisions of this Agreement. True, correct and complete copies of all Contracts shall be provided to Buyer. Seller has no actual knowledge of and has neither given nor received any written notice of default with respect to any of the Contracts.

Hazardous Substances

. Except as disclosed in the Due Diligence Items or any other information delivered to Buyer, Seller has not received written notice from any governmental entity alleging that Seller or the Real Property is in violation of any Environmental Laws.

Compliance With Laws

. Except as set forth in Exhibit “D” attached hereto, Seller has not received written notice from any governmental entity of any violations of any laws affecting or applicable to any or all of the Property.

Employees

. There are no employees of Seller employed in connection with the use, management, maintenance or operation of the Property whose employment will continue after each Closing Date, except as is necessary to fulfill Seller’s obligations as tenant pursuant to the NetApp Lease.

Prohibited Person; Patriot Act Compliance

. Neither Seller, nor any person controlling or controlled by Seller is a country, individual or entity named on a Government List, and the monies obtained in connection with this Agreement will not be used for any activities that contravene any applicable Anti-Money Laundering Laws (as hereinafter defined). Seller is not a person described by Section 1 of the Executive Order (No. 13,224) Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001) and Seller has not engaged in any dealings or transactions or is otherwise associated with any such person. Neither Seller, nor any person controlling or controlled by Seller (A) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the United States would be predicate crimes to money laundering, or any violation of the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act or any other United States law or regulation governing money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes (collectively, "Anti-Money Laundering Laws"); (B) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws; or (C) has had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws.

No Additional Consents

. No approval or consent is required from any person (including any partner, shareholder, member, creditor, investor or governmental body) for Seller to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Seller to consummate the transaction contemplated hereby.

Subsequent Changes

. Upon Buyer gaining actual knowledge (as opposed to constructive or imputed knowledge) of any fact which (a) would materially and adversely change the representations or warranties contained herein and (b) would constitute a breach thereof by Seller (which material and adverse change in representations or warranties and breach thereof by Seller have a Material

 

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Adverse Effect), Buyer, as its sole remedy, shall have the option of either (i) waiving the breach of warranty or change, and proceeding with Closing, or (ii) subject to the provisions in Section 11.14 below, terminating this Agreement in accordance with Section 4.4 above and this Section 11.12. Any such election shall be made by Buyer not later than five (5) business days from Buyer obtaining actual knowledge of such fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer's termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30‑day cure period extends beyond either Outside Closing Date, then such Outside Closing Date shall be extended by two (2) business days following the end of such 30‑day cure period. If Buyer does not so elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.12, then Buyer shall be deemed to have elected to waive its right to terminate this Agreement pursuant to Section 4.4 and this Section 11.12 in connection with the applicable breach only, elected to acquire the applicable Property on the terms set forth in this Agreement, and waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances that have actually become known to Buyer. In no event shall Seller be liable to Buyer for, or be deemed to be in default hereunder by reason of, any breach of Seller’s representation or warranty which results from any change that (A) is related to either the First Closing Property or the Second Closing Property and occurs between the Effective Date and the First Closing Date or Second Closing Date, respectively and (B) (1) is permitted under the terms of this Agreement, (2) is beyond the reasonable control of Seller or (3) results from any affirmative acts of or breach of this Agreement by Buyer; provided, however, any breach of such Seller’s representation or warranty in any material respect (other than those that are permitted under the terms of this Agreement) shall, if such breach has a Material Adverse Effect and does not result from any affirmative acts of or breach of this Agreement by Buyer, constitute the non-fulfillment of the condition set forth in Section 4.3 and Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.12.

Seller's Knowledge

. Whenever phrases such as "to Seller's knowledge" or "Seller has no knowledge" or similar phrases are used in the foregoing representations and warranties, they will be deemed to refer exclusively to matters within the current actual (as opposed to constructive) knowledge of the Seller's Representative, which is the individual with Seller with the most knowledge of the Property. No duty of inquiry or investigation on the part of Seller or Seller's Representative will be required or implied by the making of any representation or warranty which is so limited to matters within Seller's actual knowledge, and in no event shall Seller's Representative have any personal liability therefor.

Survival

. All of the covenants, representations and warranties of Seller set forth in this Agreement with respect to the First Closing and the Second Closing will survive each Closing for a period of twelve (12) months after the First Closing Date or Second Closing Date, as applicable. No claim for a breach of any covenant, representation or warranty of Seller will be actionable or payable if (i) Buyer does not notify Seller in writing of such breach within said twelve (12) months and commence a "legal action" thereon within fourteen (14) months after the applicable Closing Date, or (ii) the breach in question results from or is based on a condition, state of facts or other matter which was actually known to Buyer prior to Closing.

Buyer's Representations and Warranties

. In addition to any express agreements of Buyer contained herein, the following constitute representations and warranties of Buyer:

Formation; Authority

. Buyer is duly formed, validly existing and in good standing under the laws of the state of its formation. Buyer has full power and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby. All requisite action has been taken by Buyer in connection with the entering into of this

 

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Agreement and the instruments referenced herein, and the consummation of the transactions contemplated hereby. The individuals executing this Agreement and the instruments referenced herein on behalf of Buyer have the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof.

Prohibited Person; Patriot Act Compliance

. Neither Buyer, nor any person controlling or controlled by Buyer, is a country, individual or entity named on a Government List, and the monies obtained in connection with this Agreement will not be used for any activities that contravene any applicable Anti-Money Laundering Laws (as hereinafter defined). Buyer is not a person described by Section 1 of the Executive Order (No. 13,224) Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001) and Buyer has not engaged in any dealings or transactions or is otherwise associated with any such person. Neither Buyer, nor any person controlling or controlled by Buyer (A) is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the United States would be predicate crimes to money laundering, or any violation of any Anti-Money Laundering Laws; (B) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws; or (C) has had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws.

13.Casualty and Condemnation.

Casualty

. In the event that the First Closing Property, or any portion thereof, prior to the First Closing Date, or the Second Closing Property, or any portion thereof, prior to the Second Closing Date, is destroyed or materially damaged, Buyer shall accept the First Closing Property or the Second Closing Property, as the case may be, in its then condition and proceed with the consummation of the transaction contemplated by this Agreement; provided, however: (i) there shall be an abatement or reduction in the First Closing Purchase Price or the Second Closing Price, as applicable, in the amount of the deductible for the applicable insurance coverage, and (ii) Seller shall assign to Buyer any insurance proceeds payable by reason of such damage or destruction, other than rental abatement/rent loss insurance attributable to the period of time prior to the First Closing and the value of any of Seller's tenant improvements and personal property, which shall be retained by or paid to Seller. Seller shall not compromise, settle or adjust any claims to such proceeds without Buyer's prior written consent.

Material Condemnation

.  

13.2.1First Closing Property.  In the event that prior to the First Closing Date, all or any material portion of the First Closing Property is subject to a taking by a public or governmental authority, Buyer shall have the right to: (A) terminate the entirety of this Agreement, in which event the Deposit (less the Independent Consideration), the Seller Funds (to the extent deposited with Escrow Holder) and all interest accrued thereon shall be immediately returned to Buyer, any other money or documents in escrow with Escrow Holder shall be returned to the party depositing the same or (B) accept the First Closing Property in its then-existing condition, without a reduction in the First Closing Purchase Price, and to receive an assignment of all of the Seller’s rights to any condemnation award or proceeds payable by reason of such taking.  If Buyer elects to proceed under clause (B) above, Seller shall not compromise, settle or adjust any claims to such award without Buyer’s written consent.

13.2.2Second Closing Property. In the event that prior to the Second Closing Date, all or a material portion of the Second Closing Property is subject to a taking by a public or governmental authority, Buyer shall have the right to: (A) terminate this Agreement with respect to the Second Closing Property, in which event any Seller Funds (to the extent deposited with Escrow Holder) and all interest accrued thereon shall be immediately returned to Buyer and any other money or

 

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documents in escrow with Escrow Holder shall be returned to the party depositing the same or (B) accept the Second Closing Property in its then-existing condition, without a reduction in the Second Closing Purchase Price, and to receive an assignment of all of the Seller’s rights to any condemnation award or proceeds payable by reason of such taking. If Buyer elects to proceed under clause (B) above, Seller shall not compromise, settle or adjust any claims to such award without Buyer’s written consent.

13.2.3Termination.  Buyer shall deliver any notice of termination to Seller pursuant to Section 13.2.1 and Section 13.2.2 above in writing by no later than the earlier of (i) within ten (10) days after receiving written notice of such taking or (ii) two (2) business days prior to the Outside First Closing Date or the Outside Second Closing Date (as applicable).

Non‑Material Condemnation

. In the event that prior to the First Closing Date any non-material portion of the First Closing Property, or that prior to the Second Closing Date any non-material portion of the Second Closing Property, is subject to a taking by any public or governmental authority, Buyer shall accept the First Closing Property or Second Closing Property, as applicable, in its then condition and proceed with the consummation of the transaction contemplated by this Agreement, in which event Buyer shall be entitled to an assignment of all of Seller's rights to any award or proceeds payable in connection with such taking. In the event of any such non-material taking, Seller shall not compromise, settle or adjust any claims to such award without Buyer's prior written consent.

Materiality Standard

. For purposes of this Section 13, a taking of a portion of the Property shall be deemed to involve a material portion thereof if the amount of the condemnation award, or settlement in lieu of condemnation, with respect to the taking either (a) exceeds one percent (1%) of the Purchase Price, or in the absence of a condemnation award (or settlement in lieu of condemnation), the value of the Property subject to the taking is estimated by a certified appraiser to exceed one percent (1%) of the Purchase Price, or (b) results in a material impairment to Buyer’s access to the Property or the availability of parking for the Property, or (c) materially impairs the development potential of the Unimproved Land for Buyer’s intended development.

Notice of Casualty and Condemnation

. Seller agrees to give Buyer prompt written notice of any taking of, proposed taking of, damage to or destruction of the Real Property or any portion thereof.

Notices

. Except as otherwise provided herein, all notices, demands and communications sent hereunder shall be in writing, and shall be delivered (a) personally, (b) by United States registered or certified mail, postage prepaid, (c) by Federal Express or other reputable courier service regularly providing evidence of delivery (with charges paid by the party sending the notice), or (d) by e-mail (including a PDF or similar attachment to an e-mail), and shall be deemed received upon the date of receipt thereof if received prior to 5:00 p.m. (Pacific time) of the recipient’s business day, and if not so received, shall be deemed received upon the following business day. Any such notice to a party shall be addressed at the address set forth below (subject to the right of a party to designate a different address for itself by notice similarly given):

 

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and
Google Inc.
1600 Amphitheatre Parkway
Mountain View, CA 94043
Attn: Legal Department/RE Matters

with a copy to:
SSL Law Firm LLP
575 Market Street, Suite 2700
San Francisco, California 94105
Attn: Sally Shekou, Esq. and Diane Hanna, Esq.
Email: ***@***
Email: ***@***

Notice of change of address shall be given by written notice in the manner detailed in this Section 14.

Broker Commissions

. Seller represents and warrants to Buyer that no broker or finder has been engaged by Seller in connection with any of the transactions contemplated by this Agreement, except that for Newmark Cornish & Carey, who shall be paid by Seller in accordance with Seller’s separate agreement with Newmark Cornish & Carey.  Buyer represents and warrants to Seller that no broker or finder has been engaged by Buyer in connection with any of the transactions contemplated by this Agreement, except that for CBRE, who shall be paid by Buyer in accordance with Buyer’s separate agreement with CBRE. In the event of any claims for brokers' or finders' fees or commissions in connection with the negotiation, execution or consummation of this Agreement, then as a covenant which shall survive the termination of this Agreement or each Closing, Buyer shall indemnify, save harmless and defend Seller from and against such claims if they shall be based upon any statement or representation or agreement by Buyer, and Seller shall indemnify, save harmless and defend Buyer if such claims shall be based upon any statement, representation or agreement made by Seller.

16.Default.

Default by Seller

. In the event that Seller fails to perform any of the material covenants or agreements contained herein which are to be performed by Seller, Buyer may, at its option and as its exclusive remedy, either (i) terminate this Agreement by giving written notice of termination to Seller whereupon Escrow Holder will return to Buyer the Deposit (less the Independent Consideration)

 

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and the Second Closing Funds (to the extent deposited with Escrow Holder), Seller shall reimburse Buyer for Buyer’s Due Diligence Expenses, not to exceed Two Hundred Thousand Dollars ($200,000.00), and both Buyer and Seller will be relieved of any further obligations or liabilities hereunder, except for those obligations which expressly survive any termination of this Agreement, or (ii) Buyer may seek specific performance of this Agreement; provided, however, that, (a) Buyer shall only be entitled to the remedy in subsection (ii) above, if (1) Buyer commences and files such specific performance action in the appropriate court not later than the earlier of (A) thirty (30) days following the applicable Closing Date or (B) sixty (60) days after Buyer becomes aware of the default by Seller, and (2) Buyer is not in default under this Agreement. Except as specifically set forth in this Section 16.1, Buyer does hereby specifically waive any right to pursue any other remedy at law or equity for such default of Seller, including any right to seek, claim or obtain damages, punitive damages, consequential damages or any other damages that would be predicated in whole or in part upon loss of bargains, opportunity lost or any loss of anticipated benefits incurred by Buyer. Buyer shall not be entitled to record a lien or lis pendens against the Property other than in connection and concurrently with the filing of such specific performance action. For the purposes of this Section 16.1, the term "Buyer’s Due Diligence Expenses") shall mean Buyer’s third party actual out-of-pocket expenses incurred by Buyer and paid (x) to Buyer’s attorneys in connection with the negotiation of this Agreement, and (y) to unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspection and/or investigations of the Real Property.

Default by Buyer

. IN THE EVENT THAT EITHER CLOSING DOES NOT OCCUR IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER AND BUYER FAILS TO CURE SUCH DEFAULT WITHIN FIVE (5) BUSINESS DAYS AFTER WRITTEN NOTICE FROM SELLER (OTHER THAN MONETARY DEFAULTS, FOR WHICH THERE SHALL BE NO CURE PERIOD), BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE DEPOSIT (WHICH DEPOSIT, FOR PURPOSES OF LIQUIDATED DAMAGES PAYABLE TO SELLER PURSUANT TO THIS SECTION 16.2 IN THE EVENT THAT THE SECOND CLOSING DOES NOT OCCUR AS A RESULT OF A BREACH OF THIS AGREEMENT BY BUYER FROM AND AFTER THE FIRST CLOSING DATE, SHALL BE EQUAL TO SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($7,500,000.00) OF THE SECOND CLOSING FUNDS), TOGETHER WITH THE ACCRUED INTEREST THEREON; AND, AS SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY) FOR BUYER’S BREACH OF ITS OBLIGATION TO CLOSE ESCROW AND PURCHASE THE PROPERTY, SAID AMOUNT SHALL BE DISBURSED TO SELLER AS THE FULL, AGREED AND LIQUIDATED DAMAGES FOR A BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN EITHER CLOSING NOT OCCURRING. THE PARTIES ACKNOWLEDGE THAT SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER UNDER CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.  SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES FOR SUCH BREACH. NOTHING CONTAINED IN THIS SECTION 16.2 SHALL LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE OR AFFECT BUYER'S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS.

________/s/ JKB_____________ ___________/s/ DR___________
SELLER'S INITIALS BUYER'S INITIALS

 

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Indemnities; Defaults after Closing or Termination

. The limitations on the parties' remedies set forth in Sections 16.1 and 16.2 above will not be deemed to prohibit either party from (i) specifically seeking indemnification from the other for any matter with respect to which such other party has agreed hereunder to provide indemnification or from seeking damages from such other party in the event it fails or refuses to provide such indemnification; (ii) subject to the terms, conditions and limitations of this Agreement, seeking damages incurred during the period of time after Closing that a representation or warranty given as of the applicable Closing Date by the other party hereunder survives that Closing, for the other party's breach of such representation or warranty discovered after such Closing; or (iii) subject to the terms, conditions and limitations of this Agreement seeking damages or such equitable relief as may be available for the other party's failure to perform after any termination of this Agreement any obligation hereunder which expressly survives such termination; provided, however, that in no event whatsoever will either party be entitled to recover from the other any punitive, consequential or speculative damages.

________/s/ JKB_____________ ___________/s/ DR___________
SELLER'S INITIALS BUYER'S INITIALS

Limited Liability

. Notwithstanding anything to the contrary herein, Buyer, on its own behalf and on behalf of its agents, members, partners, employees, representatives, officers, directors, agents, related and affiliated entities, successors and assigns (collectively, the "Buyer Parties") hereby agrees that in no event or circumstance shall any of the members, partners, employees, representatives, officers, directors, agents, property management company, affiliated or related entities of Seller, Seller Group or Seller's property management company have any personal liability under this Agreement. Notwithstanding anything to the contrary contained in this Agreement: (a) the maximum aggregate liability of Seller, and the maximum aggregate amount which may be awarded to and collected by Buyer (including for any breach of any representation, warranty and/or covenant of Seller) under this Agreement or any documents executed pursuant hereto (excluding the NetApp Lease) or in connection herewith, including the Exhibits attached hereto (collectively, the "Other Documents") shall, under no circumstances whatsoever, exceed, in the aggregate, (i) one percent (1%) of the Purchase Price, in the event that the First Closing does not occur, or (ii) one percent (1%) the Second Purchase Price, in the event that the First Closing has occurred but the Second Closing does not occur (collectively, the "CAP Amounts"); and (b) no claim by Buyer alleging a breach by Seller of any representation, warranty and/or covenant of Seller contained herein or any of the Other Documents (excluding the NetApp Lease) may be made, and Seller shall not be liable for any judgment in any action based upon any such claim, unless and until such claim, either alone or together with any other claims by Buyer alleging a breach by Seller of any such representation, warranty and/or covenant, is for an aggregate amount in excess of Seventy-Five Thousand Dollars ($75,000.00) (the "Floor Amount"), in which event Seller's liability respecting any final judgment concerning such claim or claims shall only be for the amount (if any) in excess of the Floor Amount, subject to the CAP Amounts set forth in clause (a) above.

Assignment

. Buyer may not assign, transfer or convey its rights and obligations under this Agreement or in the Property without the prior written consent of Seller, which consent may be given or withheld in Seller’s sole discretion, and no such approved assignment shall relieve Buyer from its liability under this Agreement until Buyer's assignee has fully performed all of Buyer's obligations hereunder and each Closing has occurred, at which time Buyer shall be released from any further obligations or responsibilities under this Agreement, except for those obligations or responsibilities which specifically survive such Closing. Notwithstanding the foregoing, Seller consents in advance to an assignment by Buyer to any entity controlling, controlled by, or under common control with Buyer, so long as: (i) no such assignment shall be deemed to relieve Buyer from its liability under this Agreement as provided above, and (ii) Buyer shall deliver written notice to Seller of any such assignment at least five (5) business days in advance of the applicable Closing Date. Any assignee shall assume all of Buyer's

 

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obligations hereunder and succeed to all of Buyer's rights and remedies hereunder and any assignment and assumption must be in writing and delivered to Seller at least five (5) business days prior to the First Closing Date or Second Closing Date, as applicable.

18.Miscellaneous.

Governing Law

. The parties hereto expressly agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California.

Partial Invalidity

. If any term or provision or portion thereof of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision or portion thereof to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

Waivers

. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act.

Successors and Assigns

. Subject to the provisions of Section 17, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.

Professional Fees

. In the event of the bringing of any action or suit by a party hereto against another party hereunder by reason of any breach of any of the covenants, agreements or provisions on the part of the other party arising out of this Agreement, then in that event the prevailing party shall be entitled to have and recover of and from the other party all costs and expenses of the action or suit and any appeals therefrom, and enforcement of any judgment in connection therewith, including actual attorneys' fees, accounting and engineering fees, and any other professional fees resulting therefrom.

Entire Agreement

. This Agreement (including all Exhibits attached hereto) is the final expression of, and contains the entire agreement between, the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. A party may deliver executed signature pages to this Agreement by facsimile or electronic (portable data format) transmission to the other party, which facsimile or electronic copies shall be deemed to be original executed signature pages binding on the party that so delivered the executed signature pages by facsimile or electronic transmission. The parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto.

Time of Essence/Business Days

. Seller and Buyer hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and that failure to timely perform any of the terms, conditions, obligations or provisions hereof by either party shall constitute a material breach of and a non-curable (but waivable) default under this Agreement by the party so failing to perform. Unless the context otherwise requires, all periods

 

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terminating on a given day, period of days, or date shall terminate at 5:00 p.m. (Pacific time) on such date or dates, and references to "days" shall refer to calendar days except if such references are to "business days" which shall refer to days which are not Saturday, Sunday or a legal holiday. Notwithstanding the foregoing, if any period terminates on a Saturday, Sunday or a legal holiday, under the laws of the State of California, the termination of such period shall be on the next succeeding business day.

Construction

. Headings at the beginning of each paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. The terms “Property” or “Real Property” shall refer to the First Closing Property and the Second Closing Property, collectively, or either the First Closing Property or the Second Closing Property, individually, whenever required by the context of this Agreement. The terms “Closing” or “Closing Date” shall refer to the First Closing Date and the Second Closing Date, collectively, or either the First Closing Date or the Second Closing Date, individually, whenever required by the context of this Agreement. The terms “include”, “includes”, “including” and words of similar import shall be deemed in all cases to be followed by “without limitation”. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in this Agreement are attached and incorporated by this reference. In the event the date on which Buyer or Seller is required to take any action under the terms of this Agreement is not a business day, the action shall be taken on the next succeeding business day.

Material Adverse Effect

. For purposes of this Agreement, the term "Material Adverse Effect" shall mean an effect, event, development or change that, individually or in the aggregate with all other effects, events, developments or changes, is materially adverse to the business, results of operations or financial condition of the Property or Buyer’s intended development and occupancy of the Property, taken as a whole, regardless of whether the use of such term is only in respect of a single matter; provided, that none of the following shall be included in determining whether a Material Adverse Effect has occurred: (a) changes in conditions in the U.S. or global economy or capital or financial markets generally, including changes in interest or exchange rates, (b) changes in general legal, tax, regulatory, political or business conditions that, in each case, generally affect the geographic region in which the Property is located or the commercial real estate industry (unless, and only to the extent, such effect, event, development or change affects the Property in a disproportionate manner as compared to other properties in such geographic region affected by such effect, event, development or change), (c) changes in GAAP, (d) the negotiation, execution, announcement or performance of this Agreement or the transactions contemplated hereby or the consummation of the transactions contemplated by this Agreement, including the impact thereof on relationships, contractual or otherwise, with tenants, suppliers, lenders, investors, venture partners or employees, (e) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement (unless, and only to the extent, such effect, event, development or change affects the Property in a disproportionate manner as compared to other properties in the geographic regions affected by such effect, event, development or change), (f) earthquakes, hurricanes or other natural disasters (unless, and only to the extent, such effect, event, development or change affects the Property in a disproportionate manner as compared to other properties in such geographic region affected by such effect, event, development or change), (g) any action taken by Seller at the request, or with the prior written consent, of Buyer, or (h) any conditions of approval for the subdivision of the Common Lot that affect the Google Common Lot and have been approved in writing by Buyer in accordance with this Agreement.

Exchange

. Upon the request of a party hereto (the "Requesting Party"), the other party (the "Cooperating Party") shall cooperate with the Requesting Party in Closing the sale of the Property

 

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in accordance with this Agreement so as to qualify such transaction as an exchange of like-kind property; provided, however, the Cooperating Party shall not be required to take title to any exchange property and the Cooperating Party will not be required to agree to or assume any covenant, obligation or liability in connection therewith, neither Closing hereunder shall be delayed as a result of, or conditioned upon, such exchange, the Requesting Party shall pay all costs associated with such exchange, and the Requesting Party shall remain primarily liable under this Agreement and indemnify the Cooperating Party from any liability in connection with such exchange.

20.Confidentiality.

20.1Buyer agrees that, (a) except as otherwise provided or required by valid law or in connection with Buyer’s involvement in the Subdivision Map and the Common Lot process in accordance with this Agreement, (b) except to the extent Buyer considers such documents or information reasonably necessary to prosecute and/or defend any claim made with respect to the Property or this Agreement, and (c) except to the extent reasonably necessary to deliver such documents or information to Buyer’s or its affiliate’s employees, paralegals, attorneys, brokers, officers, directors, agents and/or consultants in connection with Buyer's evaluation of this transaction on a confidential basis, Buyer shall keep the contents of any materials, reports, documents, data, test results, and other information related to the transaction contemplated hereby, including the Due Diligence Items and all information regarding Buyer's acquisition or ownership of the Property confidential. Buyer acknowledges that significant portions of the Due Diligence Items are proprietary in nature and that Seller would suffer significant and irreparable harm in the event of the misuse or disclosure of the Due Diligence Items. Without affecting any other rights or remedies that either party may have, Buyer acknowledges and agrees that Seller shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any breach, threatened breach or anticipatory breach of the provisions of this Section 20.1 by Buyer. The provisions of this Section 20.1 shall not apply any documents or information that is or becomes generally available to the public and publicly known other than as a result of disclosure in breach of this Agreement by Buyer or information that Buyer may have received from sources other than Seller without restriction or knowledge that such information is confidential or proprietary.  

20.2Each party hereto agrees not to disclose or permit the disclosure of any of the terms of this Agreement or the identity of the other party to this Agreement, provided that such disclosure may be made (a) to any party who is a partner, officer, director or employee of such party or an affiliate of such party or counsel to or accountants of such party or an affiliate of such party solely for their use and on a need-to-know basis, provided that such parties are notified of the party’s confidentiality obligations hereunder, (b) to the extent required with respect to the Subdivision Map and the Common Lot, (c) with the prior consent of the other parties hereto, (d) subject to the following sentence, pursuant to a subpoena or order issued by a court, arbitrator or governmental body, agency or official of competent jurisdiction, or (e) if required under applicable law, regulatory or stock market rule or of information of the type otherwise customarily disclosed by public companies in such public filings.  Neither Buyer nor Seller shall issue any press release or make any other public disclosure of the specific terms of this Agreement, except as required by law (including SEC regulations and NYSE requirements). 

20.3In connection with Treasury Regulation §1.6011-4 of the Internal Revenue Code of 1986, as amended, the Parties hereby agree that each Party (and each employee, representative, or other agent of such Party) may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of the transaction contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to such Party relating to such U.S. tax treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws. 

 

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The provisions of this Section 20 shall survive each Closing or any termination of this Agreement, but Buyer’s obligations as to keeping any information regarding the Property confidential pursuant to Section 20.1 shall not survive the Closing

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

By:/s/ Jeffrey Bergmann
Name:Jeffrey Bergmann

Title:Vice President, Tax & Treasury

 

By:/s/ David Radcliffe
Name:David Radcliffe
Title:Authorized Signatory

 

 

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JOINDER BY ESCROW HOLDER

Escrow Holder (as defined in Section 11 of Article I above) hereby (a) acknowledges that it has received this Agreement executed by the Seller and Buyer and accepts the obligations of and instructions for the Escrow Holder set forth herein, and (b) agrees to disburse and/or handle the Deposit, the Purchase Price and all closing documents in accordance with this Agreement.

Dated: September 11, 2017“ESCROW HOLDER”

FIRST AMERICAN TITLE INSURANCE
COMPANY

By:/s/ Linda Tugade
Name:Linda Tugade
Title:Escrow Officer

 

 

 

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EXHIBIT "A-1"

LEGAL DESCRIPTION OF IMPROVED LAND

All that certain Real Property in the City of Sunnyvale, County of Santa Clara, State of California, described as follows:

 

Parcels 1, 5 and 6, as shown on the certain Parcel Map filed October 30, 2008 in Book 828 of Maps, Pages 17-19, Santa Clara County Records.

 

 

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EXHIBIT "A-2"

LEGAL DESCRIPTION OF UNIMPROVED LAND

All that certain Real Property in the City of Sunnyvale, County of Santa Clara, State of California, described as follows:

Parcels 10, 11 and 12, as shown on the certain Parcel Map filed July 13, 2017 in Book 905 of Maps, Pages 11-13, Santa Clara County Records.

 

 

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EXHIBIT "A-3"

DEPICTION OF COMMON LOT AND PROPOSED GOOGLE COMMON LOT AND SELLER COMMON LOT

 

 

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The Common Lot is comprised of Common Lot “A” and Common Lot “B”.

 

The proposed Google Common Lot is comprised of Common Lot “A”.

 

The proposed Seller Common Lot is comprised of Common Lot “B”.

 

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EXHIBIT "B"

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

 

 

(Above Space For Recorder's Use Only)

GRANT DEED

 

 

THE UNDERSIGNED GRANTOR(s) DECLARE(s):

DOCUMENTARY TRANSFER TAX is $ __________________. CITY TAX $ __________________.

Computed on full value less value of liens or encumbrances remaining at time of sale,

Unincorporated area: City of _______________________________.

FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, NETAPP, INC., a Delaware corporation, hereby GRANTS to GOOGLE INC., a Delaware corporation, that certain real property which is more particularly described on Exhibit "A" which is attached hereto.

Subject to:

 

 

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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

 

On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

 

 

 

 

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EXHIBIT "C-1"

TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS

To inform GOOGLE, INC., a Delaware corporation ("Transferee"), that withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") will not be required upon the transfer of certain real property to the Transferee by NETAPP, INC., a Delaware corporation ("Transferor"), Transferor hereby certifies the following on behalf of the Transferor:

The Transferor understands that this Certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

Under penalty of perjury Transferor declares that Transferor has examined this Certification and to the best of Transferor's knowledge and belief it is true, correct and complete, and Transferor further declares that Transferor has authority to sign this document.

Date: ________________, 2017

By:
Name:
Title:

 

 

 

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EXHIBIT "C-2"

 

 

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EXHIBIT "D"

SELLER’S DISCLOSURES

Seller hereby discloses to Buyer that the Property, the Common Lot and the Seller’s adjacent property, including the buildings and improvements related thereto, may not be in conformance with certain applicable parking requirements contained in the Moffett Park Specific Plan and the City of Sunnyvale Municipal Code. This disclosure shall not modify the parties rights and obligations as set forth in this Agreement, including but not limited to Buyer’s due diligence and Subdivision Condition approval rights; provided, however, that in no event may Buyer terminate this Agreement as of either the First Closing or the Second Closing pursuant to Sections 4.3.1(b) or 4.3.2(c) hereof , respectively, by claiming a breach of Buyer’s representation and warranty in Section 11.8 hereof as a result of any written notice of violation from any governmental entity received as a result of such potential or actual parking shortfall.

  

 

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EXHIBIT “E”

[Intentionally Deleted.]

 

 

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EXHIBIT "F"

ASSIGNMENT OF CONTRACTS AND ASSUMPTION AGREEMENT

This Assignment of Contracts and Assumption Agreement (the "Assignment") is made and entered into as of this ____ day of ________, 2017 ("Assignment Date"), by and between NETAPP, INC., a Delaware corporation ("Assignor"), and GOOGLE INC., a Delaware corporation ("Assignee"), with reference to the following facts.

R E C I T A L S:

NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

1.Assignment and Assumption. Effective as of the Assignment Date, Assignor hereby grants, transfers, conveys, assigns and delegates to Assignee all of its rights, interests, duties and obligations of Assignor in, to and under the Property Contracts listed on Schedule 1. Assignee hereby accepts such assignment and delegation by Assignor and agrees to fully perform and assume all the obligations of Assignor under the Property Contracts first arising from and after the Assignment Date.

2.No Warranties. Assignee does hereby acknowledge and agree, and represents and warrants to Assignor, that Assignor is transferring each of the Property Contracts to Assignee (to the extent the terms of any of the Property Contracts do not limit or restrict such right) without any warranty of any kind or nature except as set forth in the Purchase Agreement. This Assignment shall not be construed as a representation or warranty by Assignor as to the transferability or enforceability of the Property Contracts, and Assignor shall have no liability to Assignee in the event that any or all of the Property Contracts (a) are not transferable to Assignee or (b) are canceled or terminated by reason of this Assignment or any acts of Assignee.

3.Dispute Costs. In the event of any dispute between Assignor and Assignee arising out of the obligations of the parties under this Assignment or concerning the meaning or interpretation of any provision contained herein, the losing party shall pay the prevailing party's costs and expenses of such dispute, including, without limitation, reasonable attorneys' fees and costs. Any such attorneys' fees and other expenses incurred by either party in enforcing a judgment in its favor under this Assignment shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Assignment and to survive and not be merged into any such judgment.

4.Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and all of which shall, taken together, be deemed one document.

 

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5.Survival. This Assignment and the provisions hereof shall inure to the benefit of and be binding upon the parties to this Assignment and their respective successors, heirs and permitted assigns.

6.No Third Party Beneficiaries. Except as otherwise expressly set forth herein, Assignor and Assignee do not intend, and this Assignment shall not be construed, to create a third-party beneficiary status or interest in, nor give any third-party beneficiary rights or remedies to, any other person or entity not a party to this Assignment.

7.Governing Law. This Assignment shall be governed by, interpreted under, and construed and enforceable in accordance with, the laws of the State of California.

IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the Assignment Date.

ASSIGNOR:

NETAPP, INC.,
a Delaware corporation

By:
Name:
Title:

ASSIGNEE:

GOOGLE INC.,
a Delaware corporation

By:
Name:
Title:

 

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Schedule 1 to Exhibit F

 

 

 

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EXHIBIT "G"

BILL OF SALE

Reference is made to that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated as of ______________, 2017, by and between NETAPP, INC., a Delaware corporation (“Seller”), and GOOGLE INC., a Delaware corporation (“Buyer”) (the "Agreement"). Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller does hereby GRANT, SELL, CONVEY, TRANSFER AND DELIVER to Buyer without any warranty of any kind, any and all of Seller's rights, title and interests in and to the Personal Property (as defined in the Agreement); provided, however, such transfer, assignment and sale shall not include any right to use the name "NetApp," and/or any other similar name relating to any of such names.

From and after the date of this Bill of Sale, it is intended by the parties that Buyer and its successors and assigns shall have the right to use, have, hold and own the Personal Property forever. This Bill of Sale may be executed in counterparts, each of which shall be deemed an original, and all of which shall, taken together, be deemed one document. Seller and Buyer agree that the delivery of an executed copy of this Bill of Sale by facsimile shall be legal and binding and shall have the same full force and effect as if an original executed copy of this Bill of Sale had been delivered.

Buyer hereby acknowledges, covenants, represents and warrants that Seller has made absolutely no warranties or representations of any kind or nature regarding title to the Personal Property or the condition of the Personal Property except as expressly set forth in the Purchase Agreement.

Buyer on behalf of itself and its officers, directors, employees, partners, agents, representatives, successors and assigns hereby agrees that in no event or circumstance shall Seller or its partners, members, trustees, employees, representatives, officers, related or affiliated entities, successors or assigns have any personal liability under this Bill of Sale, or to any of Buyer's creditors, or to any other party in connection with the Personal Property or the Property.

This Bill of Sale shall be governed by, interpreted under, and construed and enforceable in accordance with, the laws of the State of California.

 

 

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IN WITNESS WHEREOF, this Bill of Sale has been executed as of this ___ day of __________, 2017.

SELLER:

NETAPP, INC.,
a Delaware corporation

By:
Name:
Title:

 

BUYER:

GOOGLE INC.,
a Delaware corporation

By:
Name:
Title:

 

 

 

 

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EXHIBIT "H"

GENERAL ASSIGNMENT

This General Assignment (this “Assignment”) is made as of the ____ day of ______________, 2017 ("Assignment Date"), by NETAPP, INC., a Delaware corporation (the "Assignor"), and GOOGLE INC., a Delaware corporation (the “Assignee").

Pursuant to that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated as of ______________, 2017 (the "Agreement"), Assignee has this day acquired from Assignor the Property. Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.

In consideration of the acquisition of the Property by Assignee and other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Assignment. Assignor hereby assigns, transfers and sets over unto Assignee, without representation or warranty of any kind, and Assignee hereby accepts from Assignor, any and all of Assignor's right, title and interest in and to (i) all freely transferable warranties and guaranties (collectively, the "Warranties and Guaranties"), if any, with respect to the Property and (ii) all freely transferable consents, authorizations, variances or waivers, licenses, permits and approvals (collectively, the "Approvals") from any governmental or quasi-governmental agency, department, board, commission, bureau or other entity or instrumentality of any nature relating solely to the Property.

2.No Warranties. Assignee does hereby acknowledge and agree, and represents and warrants to Assignor, that Assignor is transferring each of the Warranties and Guaranties and the Approvals to Assignee (to the extent the terms thereof do not limit or restrict such right) without any warranty of any kind or nature except as expressly set forth in the Purchase Agreement. This Assignment shall not be construed as a representation or warranty by Assignor as to the transferability or enforceability of the Warranties and Guaranties or the Approvals, and Assignor shall have no liability to Assignee in the event that any or all of the Warranties and Guaranties and the Approvals (a) are not transferable to Assignee or (b) are canceled or terminated by reason of this Assignment or any acts of Assignee.

3.Dispute Costs. In the event of any dispute between Assignor and Assignee arising out of the obligations of the parties under this Assignment or concerning the meaning or interpretation of any provision contained herein, the losing party shall pay the prevailing party's costs and expenses of such dispute, including, without limitation, reasonable attorneys' fees and costs. Any such attorneys' fees and other expenses incurred by either party in enforcing a judgment in its favor under this Assignment shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Assignment and to survive and not be merged into any such judgment.

4.Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and all of which shall, taken together, be deemed one document.

5.Survival. This Assignment and the provisions hereof shall inure to the benefit of and be binding upon the parties to this Assignment and their respective successors, heirs and permitted assigns.

6.No Third Party Beneficiaries. Except as otherwise expressly set forth herein, Assignor and Assignee do not intend, and this Assignment shall not be construed, to create a third-party beneficiary

 

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status or interest in, nor give any third-party beneficiary rights or remedies to, any other person or entity not a party to this Assignment.

7.Governing Law. This Assignment shall be governed by, interpreted under, and construed and enforceable in accordance with, the laws of the State of California.

IN WITNESS WHEREOF, Assignor and Assignee have caused this instrument to be executed as of the Assignment Date.

"ASSIGNOR"

NETAPP, INC.,
a Delaware corporation

By:
Name:
Title:

 

“ASSIGNEE”

GOOGLE INC.,
a Delaware corporation

By:
Name:
Title:

 

 

 

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EXHIBIT "I"

[Intentionally Deleted.]

 

 

 

 

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EXHIBIT "J"

LIST OF SERVICE CONTRACTS

 

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EXHIBIT "K"

[Intentionally Deleted.]

 

 

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EXHIBIT "L"

EXCLUDED PERSONAL PROPERTY

 

All AV studio and associated equipment in rooms:

All IT equipment in the following rooms:

Specific pieces of furniture as follows:

 

 

 

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EXHIBIT "M"

DUE DILIGENCE ITEMS

 

 

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AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS

BETWEEN

NETAPP, INC.,
a Delaware corporation

as SELLER

and

GOOGLE INC.,
a Delaware corporation

as BUYER

 

 

 

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TABLE OF CONTENTS

Page

 

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INDEX

Page(s)

Additional Deposit2

Agreement1

Anti-Money Laundering Laws30

Assignment of Contracts21

Bill of Sale21

Buildings1

Buyer1

Buyer Area of Control13

Buyer Parties36

Buyer Subdivision Delays12

Buyer’s Due Diligence Expenses35

Buyer’s Notice Address2

Buyer's Approval Notice15

CAP Amounts36

City9

Claims27

Closing8

Common Lot9

Contingency Deadline3

Contracts14

Cooperating Party38

Cure Deadline17

Deed21

Defective Condition20

Deposit7

Diligence Database14

Due Diligence Investigations6

Due Diligence Items14

Effective Date1

Environmental Laws26

Escrow Holder2

Escrow Holder's Notice Address2

Escrow Instructions.8

Excluded Claims28

Existing CC&Rs12

Final Extended Second Closing Date8

First Closing8

First Closing Date8

First Closing Period3

First Closing Property6

First Closing Purchase Price2

Floor Amount36

General Assignment21

Google Common Lot1, 9

Governmental Regulations26

Hazardous Substances26

Improved Land1

Improved Property1

Improvements5

 

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Page(s)

Independent Consideration.7

Initial Deposit2

Intangible Personal Property5

Interim Date16

Intrusive Tests15

Land5

Material Adverse Effect38

Monetary Liens16

Natural Hazard Expert3

NetApp Lease21

New Contracts25

Objection Notice16

Official Records3

Opening of Escrow8

Other Documents36

Outside First Closing Date3

Outside Second Closing Date3

Permitted Title Encumbrances17

Permitted Title Matters17

Personal Property5

Property6

Property Approval Period15

PTR16

Purchase Price2

Real Property5

Reduced CC&Rs14

Reports14

Requesting Party38

Revised CC&Rs13

Second Closing8

Second Closing Date8

Second Closing Funds7

Second Closing Period3

Second Closing Property6

Second Closing Purchase Price2

Seller1

Seller Area of Control13

Seller Common Lot9

Seller Group26

Seller Outside Second Closing Date Extension12

Seller's Representative3

Seller's Response17

Subdivision Condition11

Subdivision Conditions Problem11

Subdivision Map9

Subdivision Problem9

Survey16

Tax Certificates21

Title Company2

Title Policy17