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12-004 Infinite Loop Hotel LLC, Shashi Investement LLC, Housing Mitigation Fees • \ • / OFFICE OF THE CITY MANAGER CITY HALL tilts)9s� 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 TELEPHONE: (408)'777-3212•FAX: (408)777-3366 CU P E RT I N O davek @cupertino.org February 16, 2012 Infinite Loop Hotel,LLC Shashi Investment,LLC c/o Shashi Corporation Attn: Dipesh Gupta 20660 Stevens Creek Blvd,#331 Cupertino, CA 95014 RE: Waiver of Developer's Requirement under Paragraph #3, titled "Sales Taxes from Construction Contracts" of "AGREEMENT/ (10165 North DeAnza Boulevard, Cupertino)" • between Infinite Loop Hotel,LLC, Shashi Investment,LLC and the City of Cupertino Dear Mr. Gupta: Based on the written letter submitted to the City, I have determined that you have used your best efforts to obtain the sub-permit of your seller's permit and were unable to do so from the State Board of Equalization. I hereby waive your obligation to obtain said sub-permit under Paragraph #3 of"AGREEMENT/(10165 North DeAnza Boulevard,Cupertino)". Sincerely, ju). David W. Knapp City Manager C: Aarti Shrivastava, Community Development Director AGREEMENT (10165 North DeAnza Boulevard, Cupertino) This Agreement is made as of December 29, 2011, by and between Infinite Loop Hotel, LLC, a California limited liability company ("Developer"), Shashi Investment, LLC, a California limited liability company ("Developer Affiliate") and the City of Cupertino, California, a municipal corporation ("City"). RECITALS A. Developer Affiliate indirectly owns an interest in, and is the manager of the sole member of, Infinite Loop Hotel, LLC, a California limited liability company ("Developer"). Developer is the fee owner of the real property located at 10165 North DeAnza Boulevard, Cupertino (the "Property"). B. City granted to an affiliate of Developer, Shashi Corporation, a Use Permit, Architectural Approval and a modification to the use permit (U-2008-02, ASA- 2008-07 and M-2010-07) for the Property for the construction of an approximately 138 room hotel (the "Hotel"). C. One of the conditions imposed by the City for the issuance of building permits for construction of the Hotel was the payment of Housing Mitigation Fees in accord with the requirements of the City's Housing Mitigation Procedural Manual in the amount of$360,713.10 (the "Housing Mitigation Fees"). D. Developer has represented to the City that neither it nor its affiliates have the resources as of the date hereof to pay the Housing Mitigation Fees. E. City has agreed to postpone payment of the Housing Mitigation Fees on the terms and conditions as set forth below. NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, Developer Affiliate and City agree as follows: 1. Issuance of the Building Permit. Provided that Developer Affiliate executes and delivers to City the Promissory Note, and the principals of Developer Affiliate execute and deliver the Guarantee (as those terms are defined below), City agrees to issue to Developer the building permit for construction of the Hotel. City expressly does not waive Developer's obligation to pay the Housing Mitigation Fees; City is however permitting Developer to commence construction of the Hotel upon Developer Affiliate's promise to pay such fees as set forth in the Promissory Note. 2. Promissory Note and Guarantee. Attached hereto as Exhibit A and Exhibit B are the Promissory Note and the Guarantee. Concurrently with the execution of this 1 Cupertino/Infinite Loop Agt v.2 Agreement, Developer Affiliate shall execute and deliver to the City the Promissory Note, and the principals of Developer Affiliate shall execute and deliver to the City the Guarantee. a. Promissory Note. The Promissory Note is in the original principal amount of$360,713.10 (the "Loan"). Provided that Developer and Developer Affiliate are not in default under this Agreement or the Promissory Note (and together with the Guarantee, the "Loan Documents"), the Promissory Note shall bear no interest, shall provide that commencing on the first day of the first month following the final approvals (the "Final Approvals") on the building permit (which shall permit occupancy of the Hotel), and monthly thereafter, Developer Affiliate shall pay to City principal in the amount of$3,000 per month, due on the first day of each month. All unpaid principal and default interest, if any, shall be due and payable on the first day of the eighteenth full month following the issuance of the Final Approvals. Developer Affiliate represents that upon issuance of the building permit for the construction of the Hotel, it will receive a substantial benefit. b. Guarantee. The principals of Developer Affiliate shall execute and deliver to City a guarantee of all amounts owing under the Promissory Note. 3. Sales Taxes from Construction Contracts. Prior to purchasing any materials for construction of the Hotel, Developer, its general contractor and all subcontractors shall apply to the State Board of Equalization (the "BOE") for, and obtain, a sub- permit of its (and their) seller's permit for all materials incorporated into the Hotel, and shall allocate the local tax payable to the Property and the Hotel on Schedule C of their sales and use tax return. Developer shall, and Developer's agreement with its general contractor shall, provide that Developer, its general contractor, and its subcontractors, shall provide a copy of its sales and use tax return, including Schedule C, to the City within five (5) business days after filing such return with the Board of Equalization. Within twenty (20) business days after the date hereof Developer shall submit to City copies of its application to the BOE for a sub-permit, and a copy of the applications of its general contractor and its subcontractors to the BOE for a sub-permit, and within five (5) business days of receipt of the sub-permits, Developer shall deliver copies of such sub-permits to the City. The City Manager may, in his or her absolute discretion, waive the requirements of this Section 3 upon a showing by Developer that it and its general contractor and subcontractors have used best efforts to obtain the sub- permit and have failed to do so and/or the Developer provides documentation to the reasonable satisfaction of the City Manager that obtaining the sub-permit will cause a substantial cost increase or delay to the project. 4. Representations and Warranties of Developer. As an inducement to City to enter into this Agreement, Developer and Developer Affiliate represent and warrant to City as follows: 2 Cupertino/Infinite Loop Agt v 2 a. Fee Owner. Developer is the fee owner of the Property. b. Due Formation, Qualification, Etc. Developer and Developer Affiliate each is a limited liability company duly formed, validly existing and in good standing under the laws of California and is authorized to do business in the jurisdictions in which its ownership of property or conduct of business legally requires such authorization, and where failure to do so would have a material adverse effect on Developer or Developer Affiliate, and has full corporate and legal power, authority and right to own its properties and assets and to conduct its business as presently conducted or proposed to be conducted. c. Capacity. Developer Affiliate has full limited liability company and legal power, authority and right to execute and deliver, and to perform and to observe the provisions of, the Loan Documents and to carry out the transactions contemplated thereby. Developer has full limited liability company and legal power, authority and right to execute and deliver, and to perform and to observe the provisions of, this Agreement and to carry out the transactions contemplated hereby. d. Authority. The execution, delivery and performance of the Loan Documents have been duly authorized by all necessary corporate action, and, when duly executed and delivered, will be legal, valid and binding obligations of Developer Affiliate, enforceable in accordance with their respective terms. No registration with, consent or approval of, or notice to, or other action by, any trustee or holder of any Indebtedness or obligation of Developer Affiliate or of any other person to the execution, delivery, performance and enforceability of the Loan Documents, and the transactions contemplated thereby, is required, or if required, such registration has been made, such consent or approval given, such notice given or such other appropriate action taken and certified copies of the same have been delivered to City. The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action, and, when duly executed and delivered, will be legal, valid and binding obligations of Developer, enforceable in accordance with its terms. No registration with, consent or approval of, or notice to, or other action by, any trustee or holder of any Indebtedness or obligation of Developer or of any other person to the execution, delivery, performance and enforceability of this Agreement, and the transactions contemplated hereby, is required, or if required, such registration has been made, such consent or approval given, such notice given or such other appropriate action taken and certified copies of the same have been delivered to City. e. Compliance. The execution and delivery of the Loan Documents, and compliance with their respective terms, will not result in a breach of any of 3 Cupertino/Infinite Loop Agt v.2 the terms or conditions of, or result in the imposition of any lien, charge or encumbrance upon any properties of Developer Affiliate pursuant to, or constitute a default, with due notice or, with regard to a lapse of time, to the best of Developer Affiliate's knowledge (or both), or result in the occurrence of any event pursuant to which any holder or holders of Indebtedness of Developer Affiliate may declare the same due and payable under, any indenture, agreement, order, judgment or other instrument to which Developer Affiliate is a party or by which Developer Affiliate or its property may be bound or effected, and will not violate any provision of applicable law. The execution and delivery of this Agreement, and compliance with its terms, will not result in a breach of any of the terms or conditions of, or result in the imposition of any lien, charge or encumbrance upon any properties of Developer pursuant to, or constitute a default, with due notice or, with regard to a lapse of time, to the best of Developer's knowledge (or both), or result in the occurrence of any event pursuant to which any holder or holders of Indebtedness of Developer may declare the same due and payable under, any indenture, agreement, order, judgment or other instrument to which Developer is a party or by which Developer or its property may be bound or effected, and will not violate any provision of applicable law. f. Litigation. There are no actions, suits or proceedings (whether or not purportedly on behalf of Developer or Developer Affiliate) pending or, to the best of Developer's or Developer Affiliate's knowledge, threatened against or affecting Developer or Developer Affiliate at law or in equity or before or by any person which, if adversely determined, could have a material adverse effect on the business, operations, properties or condition (financial or otherwise) of Developer or Developer Affiliate or which might materially affect the ability of Developer or Developer Affiliate to develop the Hotel or otherwise to perform its obligations under the Loan Documents. Developer and Developer Affiliate are not in default with respect to any applicable laws and/or regulations which could materially affect the operations and/or financial condition of Developer or Developer Affiliate, nor are Developer or Developer Affiliate in default with respect to any writ, injunction, demand or decree of any court or any person or in default in any material respect under any indenture, agreement or other instrument to which it is a party or by which it may be bound, default under which might have consequences which could materially and adversely affect the business, operations, properties or condition (financial or otherwise) of Developer or Developer Affiliate, or which might materially affect the ability of Developer or Developer Affiliate to perform its obligations under the Loan Documents. g. Advice of Counsel. Developer and Developer Affiliate have had advice of counsel of its own choosing in the negotiation and preparation of this Agreement and all Loan Documents executed or delivered in connection 4 Cupertino/Infinite Loop Agt v.2 herewith and has read all such Loan Documents or had them read to it by its counsel and has had such Loan Documents fully explained by such counsel and is fully aware of the contents and legal effect of such Loan Documents. 5. Covenants of Developer and Developer Affiliate. Until payment of all amounts owing on the Promissory Note and the Deed of Trust, Developer and Developer Affiliate covenants as follows: a. Prompt Performance. Developer and Developer Affiliate shall promptly perform all the obligations under the Loan Documents as and when due. Developer and Developer Affiliate shall timely comply with each of the terms and conditions of the Loan Documents. b. Notice of Events. Developer or Developer Affiliate shall at once give City written notice of any condition or event which has resulted, or in Developer's or Developer Affiliate's reasonable judgment might result, in a) a breach of or noncompliance with any term, condition or covenant contained in the Loan Documents; or b) any Event of Default hereunder, or any event which upon lapse of time or notice or both would become an Event of Default hereunder. c. Notice of Litigation. Developer or Developer Affiliate shall promptly give notice to City in writing of any proceedings against Developer or Developer Affiliate involving amounts in excess of$10,000 not fully covered by insurance, any substantial claim or dispute which may exist between Developer or Developer Affiliate and any person (to the extent Developer or Developer Affiliate has knowledge of such claims or disputes), any labor controversy resulting in or threatening to result in a strike against Developer or Developer Affiliate (to the extent that Developer or Developer Affiliate has knowledge of such labor controversies), or any proposal by any public authority to acquire a material portion of the assets or business of Developer or Developer Affiliate (to the extent that Developer or Developer Affiliate has knowledge of such a proposal). d. Other Debt. Developer and Developer Affiliate each shall promptly pay and discharge any and all of its indebtedness whether for borrowed money or otherwise, liens, charges, all taxes and assessments or obligations when due, and before any penalties accrue thereon, and lawful claims which, if unpaid, might become a lien or charge upon the Property or other property of Developer or Developer Affiliate, except such as may in good faith be contested or disputed or for which arrangements for deferred payment have been made. 5 Cupertino/Infinite Loop Agt v.2 e. Maintenance of Existence. Developer and Developer Affiliate each shall preserve and maintain its legal existence and all rights, privileges and franchises necessary or desirable in the normal conduct of its business, shall conduct its business in an orderly, efficient and regular manner, and shall comply with all applicable laws and regulations of any person and the terms of any indenture, contract or other instrument to which it may be a party or under which it or its properties may be bound if failure to so comply would have a material adverse effect on the business, properties or condition (financial or otherwise) of Developer or Developer Affiliate. f. Cooperation. From time to time Developer and Developer Affiliate shall execute and deliver or cause to be executed and delivered to City any and all instruments, documents and agreements and do or cause to be done any and all other acts reasonably deemed necessary or desirable by City to effect the provisions and purposes of the Loan Documents. 6. Events of Default. If one or more of the following events shall occur ("Events of Default" or an "Event of Default"): a. Developer Affiliate shall default in the due and punctual payment, within ten (10) days after the date when due, of any obligation under any of the Loan Documents; or b. Developer or Developer Affiliate shall fail to perform or observe any of the terms, provisions, covenants, conditions, agreements or obligations contained in this Agreement or any other Loan Document, or any other agreement to which Developer or Developer Affiliate and City are party, or any related document and such failure continues for thirty (30) days after receipt of notice of such failure; or c. A default or event of default shall have occurred under any other documents or agreements entered into between Developer or Developer Affiliate and City or with respect to any other liability, obligation, indebtedness, promise or covenant of Developer or Developer Affiliate to City which now exists or which may hereafter arise or accrue in any manner from Developer or Developer Affiliate to City subject to notice, grace and cure periods as applies therein; or d. Any representation or warranty made in writing by or on behalf of Developer or Developer Affiliate pursuant hereto or otherwise in connection with the transactions contemplated hereby or in any document furnished in connection with this Agreement, shall be inaccurate or incomplete in any material respect on the date as of which made or, as to any representation made under this Agreement, shall be inaccurate or incomplete in any material respect at any time; or 6 Cupertino/Infinite Loop Agt v.2 e. i) A court having jurisdiction in the premises shall enter a decree or order for relief in respect of Developer in an involuntary case under Title 11 of the United States Code, as amended (the "Bankruptcy Code"), or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or ii) a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Developer or Developer Affiliate, or over all or a substantial part of its property, shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of Developer or Developer Affiliate for all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of its property; and the continuation of any of such events specified in this subpart ii) for ninety (90) days unless dismissed, bonded or discharged; or f. Developer or Developer Affiliate shall have an order for relief entered with respect to it or commence a voluntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; the making by Developer or Developer Affiliate of any assignment for the benefit of creditors; or the inability or failure of Developer or Developer Affiliate or the admission by Developer or Developer Affiliate in writing of its inability to pay its debts as such debts become due; or the management of Developer or Developer Affiliate adopts any resolution or otherwise authorizes action to approve any of the foregoing; or g. A final judgment for the payment of money in excess of$10,000.00 shall be rendered against Developer or Developer Affiliate and within thirty (30) calendar days from the entry thereof shall not be discharged or shall not be appealed or an appeal shall not be taken from the order, decree or process upon which or pursuant to said judgment was granted, based or entered, and there shall not be secured a stay of execution pending such appeal; or h. Developer or Developer Affiliate shall default beyond applicable notice, grace and cure periods, under any evidence of Indebtedness issued, assumed or guaranteed by Developer or Developer Affiliate or under any indenture, agreement or other instrument under which the same may be issued, or there shall occur any event upon the occurrence of which any holder or holders of the Indebtedness outstanding thereunder may declare the same due and payable; 7 Cupertino/Infinite Loop Agt v.2 Then, upon the occurrence and continuation of an Event of Default under subsections f) or g) automatically, and, upon the occurrence of an Event of Default under any other subsection at the option and upon declaration of City, City's commitment to make Advances shall immediately terminate and all Obligations owed to City, including, without limitation, all amounts outstanding under the Note, shall, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, be forthwith due and payable, and City may immediately, and without expiration of any period of grace, enforce payment of all Obligations of Developer or Developer Affiliate owed to it under the Loan Documents and exercise any and all other rights, powers and remedies granted to it at law, in equity or otherwise. 7. Miscellaneous. a. Indemnity. Developer Affiliate agrees to indemnify, defend, protect, pay and hold City, and the officers, directors, employees, agents, affiliates and attorneys of City (collectively called the "Indemnitees") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, broker's or finder's fees, reasonable costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto) that may be imposed on, incurred by, or asserted against that lndemnitee, in any manner relating to or arising out of(i) the negotiation, execution, delivery, performance, administration, ownership , or enforcement of any of the Loan Documents or any of the transactions contemplated thereby; or (ii) any breach by Developer or Developer Affiliate of any representation, warranty, covenant, or other agreement contained in any of the Loan Documents (the foregoing liabilities herein collectively referred to as the "Indemnified Liabilities"). b. Notices. All notices hereunder shall be in writing. Notices may be delivered personally, by reputable overnight courier, or by mail, postage prepaid, to either party at the address set forth opposite its signature below, or at such other address as a party, by written notice, may designate. Notices given by hand shall be deemed received on the day so delivered, transmitted or sent. Notices given by overnight courier shall be deemed received on the first business day following the mailing date. Notices mailed by certified USPS shall be deemed received as of 5:00 P.M. of the third business day following the mailing date. Notices shall be deemed delivered only when actually delivered or transmitted and received at the address set forth below: 8 Cupertino/Infinite Loop Agt v.2 Developer or Developer Affiliate: Infinite Loop Hotel. LLC Shashi Investment, LLC c/o Shashi Corporation Attn: Dipesh Gupta 20660 Stevens Creek Blvd, #331 Cupertino, CA 95014 City: City of Cupertino Attn: Aarti Shrivasl:ava Director of Community Development 10300 Torre Avenue Cupertino, CA 95014 c. Amendment and Waiver. Neither this Agreement nor any provisions hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. d. Collective and Several; Survival. All representations, warranties and agreements herein contained on the part of Developer or Developer Affiliate shall survive the extension of credit hereunder and all such representations, warranties and agreements shall be effective so long as any obligations arising pursuant to the terms of this Agreement, including, without limitation, under the Promissory Note, remain unpaid or for such longer period as may be expressly stated therein. e. Entire Agreement. This Agreement, the Promissory Note, and any other Loan Documents referred to herein embody the final, entire agreement among the parties hereto and supersede any and all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto. There are no oral agreements among the parties to the Loan Documents. f. No Waiver. No waiver by City of any provision hereof and no consent or approval by City shall be valid unless in writing, and then shall apply only to the extent specifically set forth in such writing. City may, in its sole discretion, waive any provision of this Agreement, and such waiver shall not affect the validity of this Agreement of any other Loan Document, nor shall such waiver constitute a waiver of such position in the future. No forbearance by City in exercising any right or remedy hereunder, under the other Loan Documents or otherwise afforded by applicable law, shall be a waiver of or preclude the exercise of any right or remedy. The 9 Cupertino/Infinite Loop Agt v.2 acceptance by City of payment of any sum due hereunder or under any of the other Loan Documents after the due date of such payment shall not be a waiver of City's right to either require prompt payment when due of all other sums so required or to declare a default for failure to make prompt payment. g. Third Party Beneficiary. This Agreement is not intended to benefit, and does not benefit, any party not a signatory hereto or a successor or permitted assignee of a party signatory hereto and no such person shall be deemed to be a third party beneficiary hereof. h. Successor and Assigns. This Agreement shall be binding on and inure to the benefit of their respective successors and assigns of the parties hereto, except that neither Developer not Developer Affiliate may assign or transfer any of its rights hereunder without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Notwithstanding the foregoing, City shall have no liability under any of the Loan Documents for any matter arising after City's transfer of its interest therein. Conflict or Inconsistency. In the event of any conflict or inconsistency between the terms of this Agreement and any other Loan Document, the terms of this Agreement shall control. j. Further Assurances. Developer and Developer Affiliate shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or requested by City to carry out the intent and purposes of this Agreement or to perfect or maintain any line or security interest intended to be created by the Loan Documents or to correct any defect or error identified by City. k. Governing Law. This Agreement and all of the Loan Documents shall be governed by, and shall be construed and enforced in accordance with, the internal laws of the state of California, without regard to such state's conflicts of laws principles. Time is of the Essence. In all matters pertaining to this Agreement, time is of the essence. 10 Cupertino/Infinite Loop Agt v 2 IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. DEVELOPER: INFINITE LOOP HOTEL, LLC, a California limited liability company By: Infinite Loop Holding, LLC, a California limited liability company Its sole Member and Manager By: Shashi Investment, LLC, a California limited liability company Its Manager _ 5E'E ATTACHED \\ CALIFORNIA 1� NOTARIZATION By: Dipesh Gupt , its Manager DEVELOPER AFFILIATE: SHASHI INVESTMENT, LLC, a California limited liability company By: Dipesh Gu ta, its,;/ - ager CITY: THE. CITY OF CUPERTINO, a municipal corpor on By: Name: DortAD . iC NAP" Title: 1 tea+-.arm. Ap roved as to form: City Attorney 11 Cupertino/Infinite Loop Agt v.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A' ca ma.•"oi.. ■i. .- ,. ,waS„ca. ∎,_ aR..c. oat..sl4Goaa ais.A. ,,,CM'" � , w^S C S GS .`5.•-, .;'`, State of California County of 4A/�.4 G44/44 /� On a. 26 aoll before me, 1'ldr/ T 0"/'�7(---1-i /f/(D1'4''y /4JdLtL, Date Here Insert Name and Title of the Officer/ personally appeared �i"F-S't,/ 6 via 7-4 • Name(s)of Signer(s) , who proved to me on the basis of satisfactory evidence to be the person whose name) is/fie subscribed to the within instrument and acknowledged to me that he/sik/thfiy executed the same in his/hi/410-0r authorized capacity(i0), and that by his/I r/thfir signatureVf on the instrument the person(p< or the entity upon behalf of which the person(p'f acted, executed the instrument. K!R T I I. PATEL I certify under PENALTY OF PERJURY under the laws .' . comm. #1833519 8 of the State of California that the foregoing paragraph is i2 -a N , JBLIC-CALIFORNIA ; true and correct. /` AN CLArCA COUNTY a My U mm Expires Jan. 27,2013 fjl '" WITNESS my hand and offici.I se. Signature Place Notary Seal Above Si.,:tur:Otary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document l� Title or Type of Document: /6'I` (_41t/7 Document Date: /c /c? 9/7%.0// Number of Pages: ` e76-1/6/ ' Signer(s) Other Than Named Above: la/0. 9/// Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual El Individual 0/Corporate Officer—Title(s): !/f/16.1e ' El Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General RIGHT THUMBPRINT El Partner—❑ Limited ❑ General RIGHT THUMBPRINT ❑ Attorney in Fact OF SIGNER Ll Attorney in Fact OF SIGNER ❑ Trustee Top of thumb here Cl TrUStee Top of thumb here ❑ Guardian or Conservator LI Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: a�-m..-rr,-a...».'s'ar:-a ems.-e-..-dc-v e+4 a.-er-e•a._�.-d-.Y_d,-r�--�.-a. _F-e--fir:.d...er.-d--er.-_v -e-er: e-,-e-e-•-a-d•a;, a•,a-e di-,v4-�. ©2007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT , ,-,--`,•-•,:,-,-..,-,:,-,: , ,-,:,-'•,:,- ,-'., ,:• y-; •f •,-•, ,-.,:.,-,:,-,:.,:,,. • •,-Y Y-✓-., Y-•, ,...9 t State of California n S( IJCAJI Cam_ t County of ti On 70.11 GUI . S :.O/ before me, SG,ij 1 t /1) l/ I L , i Date Here Insert Name and Title of the O icer ,i) personally appeared iA I%ck .. S� ,/�ame(s)of Signer(s) ' AJ 9 C who proved to me on the basis of satisfactory - evidence to be the person(a'j whose nameO is/ g subscribed to the within instrument and acknowledged GRACE SCHMIOT �� Commission*1923164 to me that he/sI /tly executed the same in 9 „' Notary Public-California his/IyGr/t i authorized capacity(i , and that by �'- .� z his/Or/t it signature( on the instrument the g `, Wit/ Santa Clara County Comm.Ex fires Feb 21,2015+ person( or the entity upon behalf of which the y tperson(4 acted, executed the instrument. I certify under PENALTY OF PERJURY under the pi laws of the State of California that the foregoing s t paragraph is true and correct. k a WITNESS my hand and official seal. µrV`i�,���^ h Signature: 44 5 t t Place Notary Seal Above Signature of Notary Public 'y OPTIONAL t Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document .. ' C AL a 31 . Title or Type of Document: .! ! _... Document Date: 1)- e . q �1] j r �( Number of Pages: s Signer(s) Other Than Named Above: V I (W� Cil,t/9119---- V C Capacity(ies) Claimed by Signer(s) f Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): Cl Corporate Officer—Title(s): ❑ Individual RIGHT THUMBPRINT 11 Individual RIGHT THUMBPRINT} y OF SIGNER OF SIGNER q ly ❑ Partner—❑Limited ❑General Top of thumb here C1 Partner—❑Limited ❑General Top of thumb here e)J t ❑ Attorney in Fact C1 Attorney in Fact i t ❑ Trustee C1 Trustee I ❑ Guardian or Conservator ❑Guardian or Conservator V El Other: 11 Other: V r - V Signer Is Representing: Signer Is Representing: 5 ©2009 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6E27) Item#5907 PROMISSORY NOTE $360,713.10 December 29, 2011 For value received, Shashi Investment, LLC, a California limited liability company, having its principal place of business at 20660 Stevens Creek Boulevard, #331. Cupertino, California 95014 (hereinafter referred to as "Maker"), promises to pay to the order of the City of Cupertino, California, a municipal corporation, at its offices at 10300 Torre Avenue, Cupertino, CA 95014, Attn: (hereinafter referred to as "Payee"), or at such place as the holder hereof may from time to time designate in writing, the principal sum of Three Hundred Sixty Thousand Seven Hundred Thirteen and 10/100 Dollars ($360,713.10), in lawful money of the United States of America, with no interest thereon (the "Interest Rate"), and to be paid in monthly installments of Three Thousand Dollars ($3,000.00) per month (such amount hereinafter the "Monthly Debt Service Payment Amount"), commencing on the first day of the first month following the date of the final approval of the building permit (the "Occupancy Date") for the hotel to be constructed at 10165 North DeAnza Boulevard, Cupertino (the "Hotel") (i.e., the date the Hotel is permitted for occupancy) and on the first day of each calendar month thereafter (each, a "Payment Date"); each of such payments to be applied (a) to the payment of interest, if any, computed at the Interest Rate; and (b) the balance applied toward the reduction of the principal sum. All amounts of principal and interest not paid shall be due and payable on the first day of the eighteenth month after the Occupancy Date (the "Maturity Date"). All amounts due under this Note shall be payable without setoff, counterclaim or any other deduction whatsoever. 1. Loan. This Note is evidence of that certain loan made by Payee to Maker or affiliates thereof contemporaneously herewith (the "Loan"). This Note is secured by the other Loan Documents (as hereinafter defined). The term "Loan Documents" as used in this Note relates collectively to this Note, that certain Agreement by and among Maker, Payee and Infinite Loop Hotel, LLC of even date herewith relating to the Loan (the "Loan Agreement"), and the guarantees of the principals of Maker, and any and all other documents securing, evidencing, or guaranteeing all or any portion of the Loan or otherwise executed and/or delivered in connection with this Note and the Loan. 2. Due Date; Penalty. If any sum payable under this Note is not paid within ten (10) days after the date on which it is due, Maker shall pay to Payee upon demand an amount equal to interest at the lesser of (i) the Default Rate (as defined in Section 4) or (ii) the maximum rate permitted by applicable law on such unpaid sum in order to defray a portion of the expenses incurred by Payee in handling and processing such delinquent payment and to compensate Payee for the loss of the use of such delinquent payment. If the day when any payment required under this Note is due is not a Business Day (as hereinafter defined), then payment shall be due on the first Business Day thereafter. The term "Business Day" shall mean a day other than (i) a Saturday or Page 'I of 5 Cupertino/Infinite Hotel Note v.2 Sunday, or (ii) any day on which banking and savings and loan institutions in California are authorized or obligated by law or executive order to be closed. Maker recognizes that its default in making any payment as provided herein or in the Deed of Trust as agreed to be paid when due, or the occurrence of any other Event of Default hereunder or under the Deed of Trust or any other Loan Documents, will require Payee to incur additional expense in servicing and administering the Loan, in loss to Payee of the use of the money due and in frustration to Payee in meeting its other financial and loan commitments and that the damages caused thereby would be extremely difficult and impractical to ascertain. Maker agrees (i) that an amount equal to the accrual of interest at the Default Rate is a reasonable estimate of the damage to Payee in the event of a late payment, and (ii) that the accrual of interest at the Default Rate following any other Event of Default is a reasonable estimate of the damage to Payee in the event of such other Event of Default, regardless of whether there has been an acceleration of the Debt. Nothing in this Note shall be construed as an obligation on the part of Payee to accept, at any time, less than the full amount then due hereunder, or as a waiver or limitation of Payee's right to compel prompt performance. 3. Acceleration. The whole of the principal sum of this Note, together with all interest accrued and unpaid thereon and all other sums due under the Loan Documents (all such sums hereinafter collectively referred to as the "Debt"), shall without notice become immediately due and payable at the option of Payee if any payment required in this Note is not paid on the date on which it is due or upon the happening of any other Event of Default (as defined in the Loan Agreement). In the event that it should become necessary to employ counsel to collect or enforce the Debt or to protect or foreclose the security therefor, Maker also shall pay on demand all costs of collection incurred by Payee, including reasonable attorneys' fees and costs reasonably incurred for the services of counsel whether or not suit be brought. 4. Default Rate. Maker does hereby agree that upon the occurrence of an Event of Default (including upon the failure of Maker to pay the Debt in full on the Maturity Date), Payee shall be entitled to receive and Maker shall pay interest on the entire unpaid principal sum and any other amounts due at a rate (the "Default Rate") equal to eight percent (8%) per annum, compounded annually. The Default Rate shall be computed from the occurrence of the Event of Default until the date Maker cures the Event of Default and such cure is accepted by Payee. This charge shall be added to the Debt and shall be secured by the Deed of Trust. This paragraph, however, shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Payee by reason of the occurrence of any Event of Default. 5. Prepayment. This Note may be prepaid prior to the Maturity Date without penalty. Page 2 of 5 Cupertino/Infinite Hotel Note v.2 6. Compliance with Law. It is expressly stipulated and agreed to be the intent of Maker and Payee at all times to comply with California state law or applicable United States federal law and that this paragraph shall control every other covenant and agreement in this Note and the other Loan Documents. 7. No Amendment. This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Maker or Payee, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. Whenever used, the singular number shall include the plural, the plural the singular, and the words "Payee" and "Maker" shall include their respective successors, assigns, heirs, executors and administrators. If Maker consists of more than one person or party, the obligations and liabilities of each such person or party shall be joint and several. 8. No Waiver. Only to the extent permitted by law, Maker and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, protest, notice of protest, notice of nonpayment, notice of intent to accelerate the maturity hereof and of acceleration. No release of any security for the Debt or any person liable for payment of the Debt, no extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of the Loan Documents made by agreement between Payee and any other person or party shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Maker, and any other person or party who may become liable under the Loan Documents for the payment of all or any part of the Debt. 9. Representations. Maker represents that Maker has full power, authority and legal right to execute, deliver and perform its obligations pursuant to this Note, the Deed of Trust and the other Loan Documents and that this Note, the Deed of Trust and the other Loan Documents constitute valid and binding obligations of Maker. 10. Notices. All notices or other communications required or permitted to be given pursuant hereto shall be given in the manner specified in the Deed of Trust directed to the parties at their respective addresses as provided therein. 11. California Law. This Note shall be governed by and construed in accordance with the internal laws of California without regard to principles of conflicts of law, and with the applicable laws of the United States of America. 12. Defined Terms. Any capitalized term used in this Note and not defined herein shall have the meaning given to such term in the Deed of Trust. (Signature page follows) Page :3of5 Cupertino/Infinite Hotel Note v.2 Maker has duly executed this Note the day and year first above written. MAKER: SHASHI INVESTMENT, LLC, a California limited liability c(.4 pany By: \.\-k- • Dipesh Gupta, i anager SEE ATTACHED CALIFORNIA NOTARIZATION Page 4 of 5 Cupertino/Infinite Hotel Note v.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT - .ca,- 0.�..-,�P,,. v,,,.,- tea,,,=.-- State of California County of 1•47A On 0/9 3C-c- 601/ before me, /<I/L7/ -L Arecei 4r;Ney ,045,u L Date Here Insert me and Title of the r fficer personally appeared //7er-S/-/ c U 4 $ et-/-41-Ai/Jo/ 6.U,' 74 Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) jd/are subscribed to the within instrument and acknowledged to me that t /s7�e/they executed the same in Ill's/h9etheir authorized capacity(ies), and that by 0/h9�/their signature(s) on the instrument the person(s), or t'he entity upon behalf of '"�' KIRTI I. PATEL which the person(s) acted, executed the instrument. COMM, #1833519 - Er NC-ARY r'JBLC-CALIFORNIA I certify under PENALTY OF PERJURY under the laws el.. SANTA CLARA COuNTV [ of the State of California that the foregoing paragraph is A FOP`- My Comm. xp��res Jan. 27,2013 true and correct. WITNESS my hand and offi .al '. I� „” Signature A/, Place Notary Seal Above S,nat� - otary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: GLP 4'/t ot^t 7Et Document Date: l� c � �/ Number of Pages: ' l/et V ' Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General RIGHTTHUMBPRINT [� Partner—El Limited ❑ General RIGHTTHUMBPRINT ❑ Attorney in Fact OF SIGNER [J Attorney in Fact OF SIGNER y Top of thumb here Top of thumb here ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: r>_d-�d-e+-a«-�-d-�>�.•d�.-ea d-esa-o���•�_ _d.-� _�_d. -�=-�--_�s _.-�-�_d.�-_ -« -�,-tea-era�- a e..�--mss�r�,-� 02007 National Notary Association•9350 De Soto Ave.,P.O Box 2402•Chatsworth,CA 91 313-2402•www.NationalNotaryorg Item#5907 Reorder:Call Toll-Free 1-800-876-6827 GUARANTEE THIS DOCUMENT AFFECTS AND WAIVES IMPORTANT RIGHTS OF THE PERSONS AND ENTITIES SIGNING IT PREAMBLE I/We, the undersigned guarantor(s) ("we"), acknowledge that The City of Cupertino, California ("Lender") has agreed to make a loan or extend credit accommodations ("Loan") to Shashi Investment, LLC, a California limited liability company (whether acting on behalf of itself or any estate created by the commencement of a case under Title 11 of the United States Code or any successor statute thereto (the "Bankruptcy Code") or any other insolvency, bankruptcy, reorganization or liquidation proceeding, or by any trustee under the Bankruptcy Code, liquidator, sequestrator or receiver of Borrower or Borrower's property or similar person duly appointed pursuant to any law generally governing any insolvency, bankruptcy, reorganization, liquidation, receivership or like proceeding, all such persons hereinafter being referred to as the "Borrower"), in the amount of Three Hundred Sixty Thousand Seven Hundred Thirteen and 10/100 Dollars ($360,713.10), evidenced by a note or other document or instrument executed by Borrower, and any modifications, extensions, renewals or replacements thereof("note"). We also acknowledge that Lender may have examined, among other things, Borrower's creditworthiness and ability to repay the Loan and our creditworthiness and ability to pay Borrower's obligations under the Loan Documents hereinafter described, that we will benefit by Lender making the Loan to Borrower and that this Guarantee is delivered to Lender in order to induce it to make the Loan. All references to "Loan Documents" in this Guarantee shall mean the Note, this Guarantee, any security agreement, deed of trust or mortgage securing the Note or this Guarantee, and any other documents or instruments relating to any such documents signed by Borrower or by any guarantor or pledgor, and any modifications, extensions, renewals or replacements of any of them. We hereby acknowledge receipt of good, adequate and valuable consideration, and we hereby unconditionally and irrevocably guarantee the full and prompt payment of all principal, interest and other sums owed under the Loan Documents at the times and according to the terms expressed therein and the payment of all other sums expended by Lender or the trustee named in any deed of trust securing any one or more Loan Documents. Our liability hereunder shall be IN THE FULL AMOUNT owed to Lender and any trustee, including any interest, default interest, costs and fees (including, without limitation, reasonable attorneys' fees) that would have accrued under the Loan Documents but for the commencement of a case under the Bankruptcy Code or any other law governing insolvency, bankruptcy, reorganization, liquidation or like proceeding, plus interest thereon as provided in the Note, plus the attorneys' fees, costs and other expenses incurred by Lender in the enforcement of this Guarantee. -1- Cupertino/Infinite Loop Guaranty v.2 BY SIGNING THIS GUARANTEE, WE ALSO AGREE THAT: 1. Changes Do Not Affect Liability Lender may without notice to us and in its absolute discretion without prejudice to it or in any way limiting our liability under this Guarantee, (a) grant extensions of time, renewals or other indulgences and modifications to Borrower or any other party under any of the Loan Documents, (b) change the rate of interest under the Note, (c) change, amend or modify the Loan Documents, (d) authorize the sale, exchange, release or subordination of any security or collateral for the Note, whether real or personal property, (e) take additional security for the Note, whether real or personal property, (f) discharge or release any party or parties liable under the Loan Documents, (g) foreclose or otherwise realize on any security or collateral for the Note, regardless of the effect upon our subrogation, contribution or reimbursement rights against Borrower or any other guarantor or pledgor, (h) accept or make compositions or other arrangements or file or refrain from filing a claim in any bankruptcy proceeding of Borrower or any other guarantor or pledgor, (i) make other or additional loans to Borrower in such amount and at such times as Lender may determine, (j) credit payments in such manner and order of priority to principal, interest or other obligations as Lender may determine in its discretion, and (k) otherwise deal with Borrower or any other guarantor or party related to the Loan or any security or collateral as Lender may determine in its discretion. Without limiting the generality of the foregoing, we hereby waive the rights and benefits under California Civil Code ("CC") Section 2819, and agree that by doing so our liability shall continue even if Lender alters any obligations under the Loan Documents in any respect or Lender's remedies or rights against Borrower are in any way impaired or suspended without our consent. 2. Guarantee of Payment and Performance Our liability under this Guarantee is a guarantee of payment and performance of the Note and not of collectability, and is not conditioned or contingent upon the genuiness, validity, regularity or enforceability of any of the Loan Documents, and we hereby waive any and all benefits and defenses under CC Section 2810 and agree that by doing so we are liable even if Borrower had no liability at the time of execution of the Note or thereafter ceases to be liable. We hereby waive any and all benefits and defenses under CC Section 2809 and agree that by doing so our liability may be larger in amount and more burdensome than that of Borrower. Our liability hereunder shall continue until all sums due under the Loan Documents have been paid in full and shall not be limited or affected in any way by any impairment or any diminution or loss of value of any security or collateral for the Loan, whether caused by hazardous substances or otherwise, Lender's failure to perfect security interest in it or any disability or other defense of Borrower or any other guarantor or pledgor. -2- Cupertino/Infinite Loop Guaranty v.2 3. Waivers of Certain Rights and Defenses Except as provided in the next paragraph, we hereby waive any and all benefits and defenses under CC Sections 2845, 2849 and 2850, including, without limitation, the right to require Lender to (a) proceed against Borrower or any other guarantor or pledgor, (b) proceed against or exhaust any security or collateral Lender may hold, or (c) pursue any other right or remedy for our benefit, and agree that Lender may proceed against us for the obligations guaranteed herein without taking any action against Borrower or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral Lender holds. We agree that Lender may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against Borrower or any other guarantor or pledgor without impairing Lender's rights and remedies in enforcing this Guarantee, under which our liabilities shall remain independent and unconditional. We agree that Lender's exercise of certain of such rights or remedies may affect or eliminate our right of subrogation or recovery against Borrower and that we may incur a partially or totally nonreimbursable liability under this Guarantee. Without limiting the generality of the foregoing, we expressly waive any and all benefits and defenses under (i) California Code of Civil Procedure ("CCP") Section 580a, which would otherwise limit our liability after a nonjudicial foreclosure sale to the difference between the obligations guaranteed herein and the fair market value of the property or interests sold at such nonjudicial foreclosure sale, (ii) CCP Sections 580b and 580d, which would otherwise limit Lender's right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively, and (iii) CCP Section 726 which, among other things, would otherwise require Lender to exhaust all of its security before a personal judgment may be obtained for a deficiency. We waive all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the guarantor's rights of subrogation and reimbursement against the principal by the operation of Section 580d of the Code of Civil Procedure or otherwise. If this Guarantee is secured by real property which we own, Lender and we agree that our waivers pursuant to this Paragraph 3 were meant to apply to the security and collateral provided by Borrower or any other guarantor or pledgor and not the real property securing this Guarantee. With respect to the real property securing this Guarantee which we own, Lender and we agree that we are entitled to all of the benefits of CCP Sections 580a, 580b, 580d and 726 to the extent they are applicable. 4. Additional Waivers We hereby waive diligence and all demands, protests, presentments and notices of every kind or nature, including notices of protest, dishonor, nonpayment, acceptance -3- Cupertino/Infinite Loop Guaranty v.2 of this Guarantee and the creation, renewal, extension, modification or accrual of any of the obligations we have hereby guaranteed. We further waive the right to plead any and all statutes of limitations as a defense to our liability hereunder or the enforcement of this Guarantee. No failure or delay on Lender's part in exercising any power, right or privilege hereunder shall impair any such power, right or privilege or be construed as a waiver of or an acquiescence therein. 5. Guarantee Made with Full Knowledge We have had the opportunity to review the matters discussed and contemplated by the Loan Documents, including the remedies Lender may pursue against Borrower in the event of a default under the Loan Documents, the value of the security or collateral for the Loan, and Borrower's financial condition and ability to perform under the Loan. We understand that a nonjudicial foreclosure upon security received by the Lender from the Borrower will destroy our subrogation rights against the Borrower and create a defense assertable by us against a deficiency judgment sought by the Lender, and we explicitly waive that defense and agree that our liability hereunder will survive any such nonjudicial foreclosure or other recourse by the Lender to any security given to the Lender by the Borrower or by us. We further agree to keep ourselves fully informed on all aspects of Borrower's financial condition and the performance of Borrower's obligations to Lender and that Lender has no duty to disclose to us any information pertaining to Borrower or any security or collateral. If provided in the Loan Documents, we agree that our bankruptcy, insolvency and other actions set forth therein may be events of default under the Loan Documents. Notwithstanding any foreclosure of the lien of the deed of trust or security agreement with respect to any or all real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure, or by an acceptance of a deed in lieu of foreclosure, we shall remain bound under this Guarantee on the indebtedness that is the subject of the Loan Documents and shall be liable to Lender for any part of the indebtedness remaining unpaid after any foreclosure. 6. Subrogation, Reimbursement and Contribution Rights We hereby waive all benefits and defenses under CC Sections 2847, 2848 and 2849 and agree that we shall have no right of subrogation or reimbursement against Borrower, no right of subrogation against any collateral or security provided for in the Loan Documents and no right of contribution against any other guarantor or pledgor unless and until all amounts due under the Loan Documents have been paid in full and Lender has released, transferred or disposed of all of its right, title and interest in any collateral or security. We have been explicitly informed that (1) nonjudicial foreclosure, which would destroy our subrogation rights against the Borrower, would create a -4- Cupertino/Infinite Loop Guaranty v.2 defense assertable by us against a deficiency judgment sought by Lender, and (2) by signing this guaranty, we are waiving that specific defense. To the extent our waiver of these rights of subrogation, reimbursement or contribution as set forth herein are found by a court of competent jurisdiction to be void or voidable for any reason, we agree that our rights of subrogation and reimbursement against Borrower and our right of subrogation against any collateral or security shall be junior and subordinate to Lender's rights against Borrower and to Lender's right, title and interest in such collateral or security, and our right of contribution against any other guarantor or pledgor shall be junior and subordinate to Lender's rights against such other guarantor or pledgor. 7. Guarantee Continues if Payments are Avoided or Recovered from Lender If all or any portion of the obligations guaranteed hereunder are paid or performed, our obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from Lender as a preference, fraudulent transfer or otherwise, irrespective of(a) any notice of revocation given by us prior to such avoidance or recovery, and (b) payment in full of the Loan. 8. Financial Information Upon Lender's request, we will promptly deliver to Lender complete and current financial statements and tax returns and such other financial information about us as Lender may reasonably request. 9. Changes, Waivers, Revocations and Amendments in Writing No terms or provisions of this Guarantee may be changed, waived, revoked or amended without Lender's prior written consent. Should any provision of this Guarantee be determined by a court of competent jurisdiction to be unenforceable, all other provisions shall remain effective. This Guarantee embodies the entire agreement among the parties hereto with respect to the matters set forth herein, and supersedes all prior agreements among the parties with respect to the matters set forth herein. No course of prior dealing among the parties, no usage of trade, and no parole or extrinsic evidence of any nature shall be used to supplement, modify or vary any of the terms hereof. There are no conditions to the full effectiveness of this Guarantee. -5- Cupertino/Infinite Loop Guaranty v.2 10. Attorneys' Fees The prevailing party in any dispute resulting in arbitration, litigation or other proceedings between any guarantor hereunder and Lender shall be entitled to its costs and expenses for such proceedings, including reasonable attorneys' fees. 11. Other Guarantees This Guarantee is in addition to the guarantees of any other guarantors and any and all of our other guarantees of Borrower's indebtedness or liabilities to Lender. This Guarantee shall in no way limit or lessen any other liability, howsoever arising, we may have for the payment of any other indebtedness of Borrower to Lender. 12. Additional Provisions a. If more than one person has signed this Guarantee, it shall be the joint and several obligation of all such persons and we shall hold harmless, defend, protect and indemnify Lender from any actions, causes of action, claims, liabilities, damages, losses, costs, expenses and fees (including attorneys' fees) and all other claims of every nature which may arise as a result of any dispute between or among any of us and any other persons or entities. b. Lender may assign this Guarantee with one or more of the Loan Documents, without in any way affecting our liability under it or them. This Guarantee shall inure to the benefit of Lender and its successors and assigns and shall bind us and our respective heirs, executors, administrators, successors and assigns. c. All notices, requests and demands to be made hereunder shall be in writing (at the addresses set forth below) given by any of the following means: (i) personal service (including service by overnight courier service); (ii) electronic communication, whether by telex, telegram or telecopying (if confirmed in writing sent by personal service or by registered or certified, first class mail, return receipt requested); or (iii) registered or certified, first class mail, return receipt requested. Such addresses may be changed by notice to the other parties given in the same manner as provided above. Any notice, request or demand sent pursuant to either subsection (i) or (ii) hereof shall be deemed received upon such personal service or upon dispatch by electronic means, and, if sent pursuant to subsection (iii) shall be deemed received five (5) days following deposit in the mail. d. If Borrower is a partnership or unincorporated association, our liability shall not be affected by changes in the name of the entity or in its membership. -6- Cupertino/Infinite Loop Guaranty v.2 e. When there is more than one Borrower named herein, any reference to Borrower shall mean any one and all of them and the singular shall include the plural. All obligations of each such Borrower to Lender of whatever nature are hereby guaranteed, including each such Borrower's several as well as joint obligations. 13. Governing Law THIS GUARANTEE SHALL BE ENFORCED AND INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, IRRESPECTIVE OF ITS CONFLICTS OF LAWS RULES. Dated as of December 29, 2011 GUARANTOR -•v‘V-2A Dipesh Gupta SEE ATTACHED CALIFORNIA NOTARIZATION Mani h Gupta� Cupertino/Infinite Loop Guaranty v.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 9S,�Sloi.. „oa - oaMci,C.�DS.�S.mss. �S..css,. - -...ca. - State of California County of �W7 44 C44 41. On 019 Ze-:G. do/1 before me, 1l✓k 71 Z /72 4 A/07 44y / '&-IL , Date Here Insert Name and Title of the Office/ personally appeared - .b/iwe 'fig C V ll Tirl • �e(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s1 whose nam1e) is/a,pe subscribed to the within instrument and acknowledged to me that he/sA/thO executed the same in his/ r/thei(authorized capacity(ipt), and that by his/hf/th • signature(b`f on the instrument the person(, or the entity upon behalf of which the person) acted, executed the instrument. KIRTI I. PATEL I certify under PENALTY OF PERJURY under the laws COMM. #1833519 of the State of California that the foregoing paragraph is NCTA.RY?!JBLIC-CAL FORMA '- ~ SANTA CLARA CC.;NTY ~ true and correct. 4 F'Oa My Comm. Expires Jan,27,2013 WITNESS my hand and offici.l sea• Signature Place Notary Seal Above Sig r at-'otary Public OPTIONAL Air Though the information below is not required by law, it may prove valuable to persons rel g on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: "€.0 A4/.fluidy AkrIc Document Date: l02/0 /'// Number of Pages: iCi1/GC • Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑Individual C Individual Jam" Corporate Officer—Title(s): MCP A' C Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General RIGHTTHUMBPRINT C Partner—❑ Limited ❑ General RIGHTTHUMBPRINT ❑ Attorney in Fact OF SIGNER C Attorney in Fact OF SIGNER Top of thumb here Top of thumb here ❑ Trustee C Trustee ❑ Guardian or Conservator C Guardian or Conservator ❑ Other: C Other: Signer Is Representing: Signer Is Representing: 'err-mr-er-e•.--ero e•-_a'-m•w.-�,-"g-e+a.e�e•;�-.a.-ems-a..-w•,e= v.-e•< -m.-er>-e._w-ems.er-a,©.,e'er e�.W a e* _..a.-a m_•-erg-e' 02007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827