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Google / THE Goldman Sachs Group - Nondisturbance And Attornment Agreement
Exhibit 10.09.7
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
SHARTSIS, FRIESE & GINSBURG LLP One Maritime Plaza, 18th Floor
San Francisco, California 94111
Attn: Jonathan M. Kennedy, Esq.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
NONDISTURBANCE AND ATTORNMENT AGREEMENT
(Amphitheatre)
THIS NONDISTURBANCE AND ATTORNMENT AGREEMENT (" Agreement") is made and entered into as of July 9, 2003, by and between WXIII/AMPHITHEATRE REALTY, L.L.C., a Delaware limited liability company (" Landlord"), and Google Technology Inc., a California corporation (" Subtenant").
RECITALS
A. Pursuant to that certain Commercial Lease, dated December 29, 2000, between The Goldman Sachs Group, Inc., a Delaware corporation (" GS"), and Silicon Graphics, Inc., a Delaware corporation (" Tenant"), as assigned by GS to Landlord by Assignment and Assumption of Commercial Lease (Amphitheatre) dated as of May 22, 2001 (a memorandum of said lease having been recorded on January 2, 2001, as Instrument No. 15514933), and amended by that certain Amendment, dated April 18, 2001 and by that certain Second Amendment, dated as of July 9, 2003 (the " Second Amendment", said lease, as amended as of the date hereof and hereafter, the " Amphitheatre Lease"), Landlord leases to Tenant certain premises at 1600 Amphitheatre Parkway, Mountain View, California, (the " Premises"), said Premises being more particularly described in the Amphitheatre Lease.
B. Pursuant to that certain Sublease dated the date hereof (the " Sublease") (a memorandum of said Sublease being recorded on July , 2003, as Instrument No. ) Tenant subleases to Subtenant, and Subtenant subleases from Tenant, the Premises. Pursuant to the terms of the Sublease, Tenant is to deliver the Premises to Subtenant in phases over a period of time that is anticipated to extend from approximately August 1, 2003 (the target date for Tenant's first delivery of space to Subtenant under the Sublease), through approximately September 1, 2004 (the target date for Tenant's last delivery of space to Subtenant under the Sublease), as provided for in the Sublease.
C. The parties intend by this Agreement to set forth their respective rights and obligations with respect to the Sublease in the event of the termination of the Amphitheatre Lease as a consequence of or resulting from any default in the performance or observance of Tenant's duties or obligations under the Amphitheatre Lease, any rejection of the Amphitheatre Lease in bankruptcy, or any voluntary termination of the Amphitheatre Lease agreed to between Landlord and Tenant, or
upon the expiration of the Amphitheatre Lease at the end of the term thereof, where Subtenant shall have effectively exercised the first renewal option granted to Subtenant under Article V of that certain Landlord-Subtenant Agreement, dated as of the date hereof (the " Landlord-Subtenant Agreement"), between Landlord and Subtenant and joined in by Tenant.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Nondisturbance and Attornment . If (a) the Amphitheatre Lease shall be terminated as a consequence or result of any default in the performance or observance of Tenant's duties or obligations under the Amphitheatre Lease, (b) the Amphitheatre Lease shall be rejected pursuant to Section 365 of the federal Bankruptcy Code, whether by Tenant, or any bankruptcy trustee, or otherwise, (c) there occurs any voluntary termination of the Amphitheatre Lease agreed to between Landlord and Tenant, or (d) upon the expiration of the Amphitheatre Lease at the end of the term thereof, Subtenant shall have exercised the first renewal option granted to Subtenant under Article V of the Landlord-Subtenant Agreement and the conditions for the effectiveness of such option set forth in the Landlord-Subtenant Agreement shall have been satisfied (any of the foregoing events described in clauses (a) through (d), a " Lease Termination"), then, subject to Section 3 below:
(i) provided Subtenant at the time of such Lease Termination is not in default under the terms of the Sublease beyond any applicable notice and cure periods provided for therein and is not in default in its obligations under Section 1.6(h)(iii) of the Second Amendment ( Subtenant's obligation to provide financial statements and in certain circumstances to provide Landlord with security for Subtenant's restoration obligations ), unless Landlord elects in its sole discretion to waive such default:
(A) as a result of such Lease Termination: Subtenant shall not be evicted from the Premises, the Sublease shall not be cut off or terminated, and Subtenant's occupancy and possession of the Premises under the Sublease will not be affected or disturbed;
(B) the Sublease shall continue in full force and effect as a direct lease between Landlord and Subtenant upon all of the then-executory terms, conditions and covenants as are set forth in the Sublease and which shall be applicable after such attornment, but further modified as set forth in Exhibit A attached hereto and made a part hereof; and
(C) Subtenant shall not be named or joined as a party defendant (unless required by law) in any action, suit or proceeding which may be instituted or taken by Landlord to enforce the performance or observance by Tenant of the provisions of the Amphitheatre Lease and/or to recover damages from Tenant for any breach thereof; and
(ii) Subtenant shall attorn to Landlord and recognize Landlord as the lessor under the Sublease, affirm its obligations under the Sublease and (without limitation of the foregoing) make payments of sums due under the Sublease to Landlord.
The foregoing provisions shall be effective and self-operative without the need for any further instruments, provided that, upon the written request of either party, Landlord and Subtenant
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shall execute and deliver to each other such instruments and certificates as each party may reasonably request to evidence and confirm such nondisturbance and attornment.
2. New Lease . In the event of a Lease Termination, Landlord and Subtenant agree to execute a new lease of the Premises immediately following such Lease Termination pursuant to which Landlord shall lease the Premises to Subtenant, and Subtenant shall lease the Premises from Landlord, upon all of the then-executory terms, conditions and covenants as are set forth in the Sublease and which are applicable after such attornment but further modified as set forth in Exhibit A attached hereto and made a part hereof; provided , however , that such new lease shall incorporate and include any then-applicable terms and conditions contained in (i) the Landlord-Subtenant Agreement and (ii) the Second Amendment.
3. Limitations on Landlord's Recognition of Sublease and Landlord's Obligations Thereunder . Except as expressly provided in Section 3(a) and Section 4(b) below, but otherwise notwithstanding anything herein or in the Sublease, the Landlord-Subtenant Agreement or the Second Amendment to the contrary, in no event shall Landlord be bound by or be liable for:
(a) any acts, omissions or defaults of Tenant (which as used herein shall mean Tenant named herein and any successor thereto) under the Sublease, or be subject to any offsets or defenses which Subtenant might have had against Tenant (except as set forth in Section 4(b) below and except that the offset rights provided in Section 30 of the Sublease shall remain in effect and shall be enforceable by Subtenant against Landlord); provided that the foregoing shall not excuse Landlord from the performance of any obligations of the sublessor under the Sublease first arising following a Lease Termination;
(b) any letter of credit or other security provided pursuant to the Sublease unless and to the extent the same has been physically delivered and is available to Landlord; provided that if Subtenant shall have previously complied with its obligations under the Sublease with respect to the "Letter of Credit" and the Cash Collateral Account (as such terms are defined in the Sublease) and provided the same to Tenant, then Subtenant shall not be required to provide an additional letter of credit or security to Landlord under Section 7 of the Sublease except to the extent that Subtenant shall have received the same in return from Tenant or its representatives or Tenant shall have been reasonably assured that Tenant has relinquished any right to draw or otherwise utilize such letter of credit or security; provided further Subtenant shall execute and deliver such documents and take all other reasonable actions necessary or appropriate for the transfer from Tenant to Landlord of the Letter of Credit or Casks Collateral Account, and to designate Landlord as the beneficiary or account holder, respectively, thereof to the exclusion of Tenant;
(c) any rent or additional rent or other sums which Subtenant might have paid more than one (1) month in advance to any Tenant, and all such rent and other sums paid more than one (l) month in advance shall remain due and owing, notwithstanding such advance payment;
(d) any obligation to provide any services or perform any repairs, construction, maintenance, replacement or restoration provided for under the Sublease to be performed before the date that Landlord becomes the landlord of Subtenant under the Sublease in accordance with the terms hereof (subject to Section 4 below); and
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