EXHIBIT 10.9
EMPLOYEE LOAN AGREEMENT
THIS EMPLOYEE LOAN AGREEMENT ("Agreement") is entered into as of the
________ day of ______________, 2000, by and between INKTOMI CORPORATION, a
Delaware corporation (the "Company"), and XXXX X. XXXXXX ("Employee") and XXXXX
X. XXXXXXXX, husband and wife (jointly and severally, "Borrowers").
RECITALS
A. Employee is employed by the Company as its Vice President of
World Wide Field Operations.
B. Borrowers have found it necessary to relocate their residence
in order for Employee to become an employee of the Company.
C. The Company and Borrowers desire that the Company lend to
Borrowers the sum of One Million Five Hundred Thousand Dollars ($1,500,000) to
assist Borrowers in purchasing a new principal residence.
NOW, THEREFORE, the Company and Borrowers agree as follows:
AGREEMENT
1. PAYMENT: The Company will lend to Borrowers the amount of One
Million Five Hundred Thousand Dollars ($1,500,000) (the "Loan") which amount
shall be used by Borrowers for the sole purpose of purchasing a new residence
located at 00000 Xxxxxxx Xxxxxx, Xxxx xx Xxxxxxxx, Xxxxxx of Santa Xxxxx, State
of California (the "Property") pursuant to the terms and conditions set forth
herein.
2. CONDITIONS PRECEDENT: The Company's obligation to extend the Loan to
Borrowers pursuant to this Agreement is expressly conditioned upon the
satisfaction of or waiver by the Company of all of the following conditions
precedent, each of which is exclusively for the benefit of the Company:
A. Borrowers shall have executed and delivered to the Company one
(1) fully executed original promissory note in the amount of One Million Five
Hundred Thousand Dollars ($1,500,000) in substantially the same form as EXHIBIT
A attached hereto, with all uncompleted information fully completed
B. Borrowers shall have executed and delivered to the Company one
(1) fully executed, validly acknowledged deed of trust on the Property securing
the Note in substantially the same form as EXHIBIT B attached hereto, with all
uncompleted information fully completed (the "Deed of Trust").
-1-
C. Lender shall have received from Fidelity National Title Company
a title insurance policy insuring the Deed of Trust in the amount of the Note as
a lien on the Property, subordinate only to a Seven Hundred Fifty Thousand
Dollar ($750,000) deed of trust for the benefit of Bank of American ("BofA") and
the exceptions to title described in Items Nos. 1, 2 (as to non-delinquent taxes
only), 3, 6, and 7 of that certain Preliminary Report prepared by Fidelity
National Title Company, dated January 26, 2000, at 7:30 a.m., and bearing Order
No. 9000482-A, and including the following title insurance endorsements: 100,
103.7, and 110.9.
3. BORROWERS' REPRESENTATIONS AND WARRANTIES: Borrowers hereby make the
following representations and warranties to the Company, which representations
and warranties shall be true and correct as of the date of the close of escrow
for Borrowers' purchase of the Property, and Borrowers acknowledge that the
Company is relying on such representations in making the Loan:
A. Borrowers have good and marketable title to the Property free
and clear of any security interests, liens or encumbrances securing monetary
obligations other than a deed of trust dated concurrently herewith constituting
a first lien against the Property in favor of BofA, to be recorded in the
Official Records of the County of Santa Xxxxx, State of California, securing a
loan with a principal balance not in excess of Seven Hundred Fifty Thousand
Dollars ($750,000) ("First Deed of Trust").
B. The consent of no other person or entity is required to grant
the Company the security interest in the Property evidenced by the Deed of
Trust.
C. There are no actions, proceedings, claims or disputes pending
or, to Borrowers' knowledge, threatened against or affecting Borrowers or the
Property.
4. BORROWERS' ADDITIONAL OBLIGATIONS:
A. DEED OF TRUST. Borrowers shall take any and all further actions
that may from time to time be required to ensure that the Deed of Trust creates
a valid lien on the Property in favor of the Company, which shall secure the
Note and be junior in priority only to the First Deed of Trust. Borrowers shall
not modify or amend the First Deed of Trust or the loan secured thereby without
the prior written consent of the Company, and in no event shall Borrowers cause
or permit the principal indebtedness secured by the First Deed of Trust to
exceed the amount described in paragraph 3.A. Upon request by Employer, but not
more frequently than once during any calendar year unless Lender believes in
good faith that a title issue exists, Borrowers shall furnish evidence
reasonably satisfactory to the Company that: (i) Borrowers have good and
marketable title to the Property; (ii) the consent of no other person or entity
is required to grant a security interest in the Property to the Company; and
(iii) there are no other deeds of trust, mortgages or encumbrances against the
Property other than the First Deed of Trust. If it should be hereafter
determined that there are defects against title or matters which could result in
defects against title to the Property or that the consent of another person or
entity is required to grant to and perfect in the Company a valid
second-priority lien on the Property, Borrowers shall promptly take all action
necessary to remove such defects and to obtain such consent and grant (or cause
to be granted) and perfect such lien on the Property.
-2-
Failure of Borrowers to use all good faith efforts to comply with the provisions
of this Paragraph 4 or failure of the Deed of Trust to be a valid lien against
the Property, subject only to the lien of the First Deed of Trust, shall be
deemed a Maturity Event, as defined in the Note.
5. REPAYMENT OF LOAN: Borrowers shall pay to the Company the
outstanding principal balance of the Note, together with all accrued, but unpaid
interest thereon, and all other sums due hereunder, under the Note, or under any
other document executed by Borrowers or Employee in connection herewith in
accordance with the term and conditions of this Agreement, the Note or such
other document. Notwithstanding the foregoing or anything to the contrary in the
Note, for the period commencing on the date of the Note and ending on February
28, 2002 ("Allowance Period") and provided the conditions precedent set forth
below are fulfilled, then:
(i) the interest rate payable with respect to the principal
balance of the Note shall be reduced to zero percent (0%); and
(ii) in the event the interest rate reduction pursuant to clause
(i), immediately above, subjects the Borrowers to imputed
state or local net income taxes on the difference between the
stated interest rate of the Note and the reduced interest rate
of the Note, then, on December 31st of 2000, 2001, and 2002
for any portion of the Allowance Period within the calendar
year then ending, the Lender shall pay to the Borrowers an
amount sufficient to pay the Borrowers' federal and state
income taxes imposed upon (i) the increase the Borrowers'
gross income that must be included in the Borrowers' tax
returns for said calendar year solely as a consequence of the
imputation of interest resulting from the interest rate
reduction pursuant to clause (i) above, less (ii) the amount
of any increases in deductions allowable to the Borrowers on
such return as a consequence of said imputation of interest
(such as, for example, the residence mortgage interest
deductions);
(iii) on December 31st of 2000, 2001, and 2002, Lender shall
reimburse to Employee the state and local property taxes
levied upon that portion of the assessed value of the Property
that is in excess of $1,000,000, and less than $2,250,000, for
any portion of the Allowance Period within the calendar year
then ending; and
(iv) in the event the reimbursement of property taxes pursuant to
clause (iii), immediately above, subjects the Borrowers to
state or local net income taxes on the amount of such
reimbursement, then, on December 31st of 2000, 2001, and 2002
for any portion of the Allowance Period within the calendar
year then ending, the Lender shall pay to the Borrowers an
amount sufficient to pay the Borrowers' federal and state
income taxes imposed upon (i) the increase the Borrowers'
gross income that must be included in the Borrowers' tax
returns for said calendar year solely as a consequence of the
reimbursement of property taxes pursuant to clause (iii)
above, less (ii) the amount of any increases in deductions
allowable to the Borrowers on such return as a consequence of
said reimbursement of property taxes.
-3-
The benefits granted to the Borrowers pursuant to clauses (1) through
(iv), above are conditioned upon the following: (a) no "Maturity Event" as
defined in the Note occurs; (b) the Employee continues to be employed by the
Lender (with proration of said benefits for any partial month of employment),
and (c) the Borrowers continue to own and occupy the Property as their principal
place of residence. In the event of any divorce of the Borrowers, the benefits
granted by this Section shall be calculated as if no such divorce occurred and
any sums payable to the Company pursuant to the foregoing shall be paid only to
the Employee.
6. MATURITY EVENT: The Note shall immediately become due and payable,
without notice or demand, upon the occurrence of any "Maturity Event" as defined
in the Note.
7. INTEREST PAYABLE BY BORROWERS: Interest shall accrue on the unpaid
principal amounts of the Note at the rate specified in the Note.
8. ENTIRE AGREEMENT: This Agreement, together with the Note and the
Deed of Trust, constitutes the full and entire understanding and agreement
between the parties hereto with regard to the subject matter hereof. Neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
No waiver of any provision of this Agreement, the Note, or the Deed of Trust
shall be effective unless in writing and the waiver of any one provision shall
not be deemed a waiver of any other provision unless expressly stated in
writing. All rights and remedies of the Company described herein and in any
other documents or instruments evidencing or securing the loan (including,
without limitation, the Note and the Deed of Trust) shall be cumulative and not
restrictive of any other rights or remedies available under any other document
or instrument, at law or in equity.
9. NO COVENANT FOR EMPLOYMENT OR ADVANCES: Employee understands and
acknowledges that this Agreement does not modify Employee's at-will status at
the Company and does not constitute an employment agreement or a promise by the
Company to continue Employee's employment. Either the Company or Employee may
terminate such employment relationship at any time, with or without cause.
10. NOTICES: All notices and other communications required or permitted
hereunder shall be in writing and may be given by (a) personal delivery, (b)
certified mail, postage prepaid, return-receipt requested, (c) courier service,
fully prepaid, or (d) facsimile. Any such notice shall be properly addressed to
the address of the parties set forth on the signature page hereof and shall be
deemed to have been given (i) if personally delivered, when delivered, (ii) if
by certified mail, return-receipt requested, when delivered or refused, (iii) if
by courier service, on the next business day following deposit, cost prepaid,
with Federal Express or similar private carrier, or (iv) if by facsimile,
instantaneously upon confirmation of receipt of facsimile. The Company or
Borrowers may change their address by giving notice of the same in accordance
with this paragraph. The term "business day" shall mean a day on which the
carrier used (Federal Express or other private carrier,
-4-
or the U.S. Postal Service, as applicable) delivers, whether by special request
or in the ordinary course of operations.
11. ASSIGNMENT: Borrowers may not assign any of their rights and/or
duties under this Agreement without the prior written consent of the Company,
which consent shall not be unreasonably withheld. All of the rights and/or
duties of the Company under the Note and the Deed of Trust shall be freely
assignable.
12. INCOME TAX CONSEQUENCES: Borrowers hereby acknowledge that the
Company has made no representation or warranty to Borrowers concerning the
income tax consequences of the loan to Borrowers and Borrowers shall be solely
responsible for ascertaining and bearing such tax consequences.
13. GOVERNING LAW: This Agreement shall be governed in all respects by
the laws of the State of California.
14. HEADINGS: The titles and headings of the various paragraphs hereof
are intended for means of reference and are not intended to place any
construction on the provisions hereof.
15. INVALIDITY: If any provision of this Agreement shall be invalid or
unenforceable the remaining provisions shall not be affected thereby and every
provision hereof shall be valid and enforceable to the fullest extent permitted
by law.
16. COUNTERPARTS: This Agreement may be executed in one (1) or more
separate counterparts, each of which, when so executed, shall be deemed to be an
original. Such counterparts, together, shall constitute one and the same
instrument.
17. MISCELLANEOUS: Time is of the essence of this Agreement, the Note,
the Deed of Trust and any other document executed by Employee or Borrowers in
connection therewith. If any action shall be commenced between the parties with
respect to the Loan, the prevailing party shall be entitled to recover its
reasonable attorneys' fees and expenses. Liability hereunder shall be joint and
several both between Borrowers and among all other persons and entities now or
hereafter liable for all or any part of the Loan.
[Signatures on Next Page]
-5-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
BORROWERS: THE COMPANY:
INKTOMI CORPORATION,
-------------------------------- a Delaware corporation
XXXX X. XXXXXX
By:
-------------------------------
--------------------------------
XXXXX X. XXXXXXXX Its:
------------------------------
Address: Xxxx X. Xxxxxx and Address: Inktomi Corporation
Xxxxx X. Xxxxxxxx 0000 Xxxx Xxxxx Xxx. XX FC2-6
00000 Xxxxxxx Xxxxxx Xxxxxx Xxxx, XX 00000
Xxxxxxxx, XX 00000 Attn:____________________
(408)______________ (650)_____________________
Facsimile Facsimile
Number:________________ Number: (650) _____________
-6-
EXHIBIT A
FORM OF PROMISSORY NOTE
[ATTACHED]
PROMISSORY NOTE
SECURED BY DEED OF TRUST
(HOUSING RELOCATION LOAN - I.R.C.ss.1.7872-5-(T))
$1,500,000.00 ________________, 2000
________________, California
FOR VALUE RECEIVED, the undersigned, XXXX X. XXXXXX ("Employee") and
XXXXX X. XXXXXXXX, husband and wife (jointly and severally, "Borrowers"),
promise to pay to the order of INKTOMI CORPORATION, a Delaware corporation
("Lender"), at 0000 Xxxx Xxxxx Xxx., XX FC2-6, Xxxxxx Xxxx, Xxxxxxxxxx 00000 (or
at such other place as Lender may from time to time designate by written notice
to Borrowers), in lawful money of the United States, the principal sum of One
Million Five Hundred Thousand Dollars ($1,500,000), together with interest
thereon at the rate of six and eight tenths percent (6.8%) per annum.
1. PAYMENT: The principal and interest due pursuant to this Note shall
be paid as follows:
(a) Upon the occurrence of a Maturity Event (as defined herein),
Borrowers shall pay to Lender all amounts due under this Note, including all
unpaid principal and all accrued but unpaid interest on the principal amount
hereof.
(b) Subject to Section 3 below, the entire outstanding principal
balance of this Note, plus any accrued, but unpaid interest thereon, and any
other sum due hereunder shall be due and payable in full on the fourth (4th)
anniversary date of this Note. Notwithstanding the foregoing, if Employee's
employment with Lender is terminated by Lender, with or without cause, then
interest on this Note shall become due and payable in arrears on December 31st
of the year following the year in which the termination became effective, and on
each year thereafter until the fourth (4th) anniversary date of this Note, when
all accrued but unpaid interest shall be payable. (For example, if Lender
terminates Employee's employment effective June 1, 2000, then all accrued
interest shall become due and payable on December 31, 2001 and on each
subsequent December 31st until the maturity date of this Note.)
(c) Principal and interest shall be payable in lawful money of the
United States. Interest shall be calculated on the basis of a 360-day year
consisting of twelve (12) months, each of thirty (30) days, and shall compound
annually. Each payment shall be applied first to accrued interest, then to any
other amounts (other than principal) payable hereunder as designated by Lender,
and then to reduce principal.
(d) All payments made hereunder shall be made by Borrowers free
and clear of, and without deduction for, any and all present and future taxes,
levies, charges, deductions and
-1-
withholdings. Borrowers shall pay upon demand any stamp or other taxes, levies
or charges of any jurisdiction with respect to the execution, delivery,
performance and enforcement of this Note.
2. SECURITY: This Note is secured by that certain Deed of Trust (the
"Deed of Trust") of even date herewith made by Borrowers, as trustors, to First
American Title Insurance Company, as trustee, for the benefit of Lender, as
beneficiary, which shall be recorded in the Official Records of the County of
Santa Xxxxx, State of California, encumbering certain real property commonly
known as 00000 Xxxxxxx Xxxxxxx, Xxxx xx Xxxxxxxx, Xxxxxx of Santa Xxxxx, State
of California (the "Property"), described with particularity in the Deed of
Trust, which Borrowers intend to occupy as their principal place of residence.
3. MATURITY EVENT: Upon the occurrence of a Maturity Event (as
hereinafter defined), the entire unpaid principal balance, together with all
accrued but unpaid interest thereon, and all other sums due hereunder, shall
become immediately due and payable without further demand or notice to
Borrowers. To the extent permitted by law, any of the following events shall be
a "Maturity Event" under this Note and the Deed of Trust:
(a) Borrowers shall fail to pay any amount of the principal or
interest on this Note when due and shall fail to cure such non-payment within
ten (10) days following written notice of such delinquency.
(b) There shall occur any breach or default in the performance of
any obligation of Borrowers or Employee contained in the promissory note payable
by the Borrowers, as payors, to Bank of America, as payee, in the original
principal amount of Seven Hundred Fifty Thousand Dollars ($750,000), executed
concurrently herewith (the "BofA Note"), the deed of trust, security agreements
and/or loan documents executed by Borrower in connection with the BofA Note
(herein collectively with the BofA Note the "First Loan Documents"); provided
that such breach or default will not be deemed a Maturity Event if it is cured
to the satisfaction of the holder of the note and the trustee of the deed of
trust within any cure period expressly provided for in said First Loan
Documents.
(c) There shall occur a breach or default in the performance of
any obligation of Borrowers or Employee contained in the Employee Loan Agreement
(the "Loan Agreement") of even date between Borrowers and Lender, the Second
Deed of Trust, as defined hereinbelow, or any other deed of trust or other
security instrument now or hereafter encumbering the Property which may
hereafter be executed by Borrowers for the purpose of securing this Note.
(d) Borrowers, without the prior written consent of Lender,
voluntarily or by operation of law, sell, convey, assign, further encumber or
otherwise transfer or agree to sell, convey or otherwise transfer, all or any
portion of, or any interest in, the Property.
(e) Borrowers (i) admit in writing their inability to pay debts,
(ii) make an assignment for the benefit of creditors, (iii) file a voluntary
petition in bankruptcy, effect a plan or other arrangement with creditors,
liquidate their assets under arrangement with creditors, or liquidate
-2-
their assets under court supervision, (iv) have an involuntary petition in
bankruptcy filed against them that is not discharged within sixty (60) days
after such petition is filed, or (v) apply for or permit the appointment of a
receiver or trustee or custodian for any of their property or assets which shall
not have been discharged within sixty (60) days after the date of appointment.
(f) The occurrence of the fourth (4th) anniversary of the date of
this Note.
(g) The occurrence of the ninetieth (90th) day following the
termination by Employee of his employment with Lender for any reason (other than
Lender's termination of such employment, with or without cause.
(h) Any representation or warranty of Employee or Borrowers
contained herein, in any agreement entered into between Borrowers and Lender in
connection herewith, or in any First Loan Document shall prove to be false or
misleading in any material respect.
(i) The Second Deed of Trust (as defined herein) is not recorded
against the Property at the closing of the purchase by Borrower of the Property
or at any time ceases to be a valid lien on the Property subject only to the
deed of trust securing the BofA Note.
(j) One (1) year following the death of the Employee.
(k) Borrowers default in their obligation to pay any indebtedness
or to perform any other obligation which is secured by a deed of trust or other
lien on the Property or default under any deed of trust securing such
indebtedness.
(l) The amount of indebtedness secured by any interest in the
Property superior in right to the Second Deed of Trust exceeds Seven Hundred
Fifty Thousand Dollars ($750,000).
4. LATE CHARGE: Because the actual damage to Lender resulting from any
default by Borrowers in the payment of any installment of principal and/or
interest when due is impractical and extremely difficult to ascertain, in
addition to its other rights and remedies, Lender shall be entitled to recover
six percent (6%) of the amount of any such delinquent installment as liquidated
damages if Borrowers fail to pay any installment within ten (10) days after
Borrower receives written notice from Lender of the amount due and owing.
5. BORROWERS' REPRESENTATIONS: Borrowers hereby make the following
representations and warranties to the Lender and acknowledge that Lender is
relying on such representations in making the loan:
(a) Borrowers shall have good and marketable title to the Property
free and clear of any security interests, liens or encumbrances other than (i)
the deed of trust in favor of Bank of America, as beneficiary, securing the BofA
Note, and (ii) the deed of trust in favor of Lender, securing this Note;
-3-
(b) The consent of no other person or entity is required to grant
to Lender the security interest in the Property evidenced by the Second Deed of
Trust.
(c) There are no actions, proceedings, claims or disputes pending
or, to the Borrowers' knowledge, threatened against or affecting the Borrowers
or the Property.
(d) Borrower has delivered to Lender true, correct and complete
copies of all First Loan Documents.
-4-
6. BORROWERS' ADDITIONAL OBLIGATIONS:
Borrowers shall take any and all further actions that may from time
to time be required to ensure that the Second Deed of Trust creates a valid lien
on the Property in favor of the Lender, which shall secure the Note and be
junior in priority only to the deed of trust securing the BofA Note. Borrowers
shall not modify, supplement, or amend any First Loan Document without the prior
written consent of the Company, which consent shall not be unreasonably
withheld, and in no event shall Borrowers cause or permit the principal
indebtedness payable under the First Loan Documents to exceed Seven Hundred
Fifty Thousand Dollars ($750,000). Upon request by Employer, but in no event
more frequently than once during any calendar year, Borrowers shall furnish
evidence reasonably satisfactory to the Lender that: (i) Borrowers have good and
marketable title to the Property; (ii) the consent of no other person or entity
is required to grant a security interest in the Property to the Lender; and
(iii) there is no other deed of trust, mortgage or encumbrance against the
Property other than the deed of trust securing the BofA Note. If it should be
hereafter determined that there are defects against title or matters which could
result in defects against title to the Property, or that the consent of another
person or entity is required to grant to and perfect in the Lender a valid
second-priority lien on the Property, Borrowers shall promptly take all action
necessary to remove such defects and to obtain such consent and grant (or cause
to be granted) and perfect such lien on the Property. Failure of Borrowers to
use all good faith efforts to comply with the provisions of this Paragraph 6 or
failure of the Second Deed of Trust to be a valid lien against the Property,
subject only to the lien of the deed of trust securing the BofA Note, shall be
deemed a Maturity Event.
7. SECOND DEED OF TRUST: As used herein, "Second Deed of Trust" shall
mean the deed of trust constituting a second-priority lien against the Property,
executed by Borrowers, for the benefit of Lender, as beneficiary, to be recorded
in the Official Records of the County of Santa Xxxxx, State of California,
concurrently herewith. The Second Deed of Trust provides, among other things, as
follows:
If the trustor shall sell, convey or alienate said property,
or any part thereof, or any interest therein, or shall be divested of
his title or any interest therein in any manner or way, whether
voluntarily or involuntarily, without the written consent of the
beneficiary being first had and obtained, beneficiary shall have the
right, at its option, except as prohibited by law, to declare any
indebtedness or obligations secured hereby, irrespective of the
maturity date specified in any note evidencing the same, immediately
due and payable.
8. NOTICE: This Note is subject to Section 2924(i) and 2966 of the
California Civil Code which provides that the holder of this Note shall give
written notice to Borrowers or their successors-in-interest, of prescribed
information (as set forth in said Civil Code Sections) at least ninety (90) days
and not more than one hundred and fifty (150) days before any Balloon Payment is
due.
9. ATTORNEYS' FEES: In the event of Borrowers' default hereunder,
Borrowers shall pay all costs of collection, including reasonable attorneys'
fees incurred by the holder hereof on account of such collection, whether or not
suit is filed hereon.
10. WAIVER: The waiver by Lender of any breach of or default under any
term, covenant or condition contained herein or in any other agreement referred
to above shall not be deemed to be a waiver of any subsequent breach of or
default under the same or any other such term, covenant or condition.
11. NO USURY: Borrowers hereby represent and warrant that at no time
shall the proceeds of the indebtedness evidenced hereby be used "primarily for
personal, family, or household purposes" as that term is defined and used in
Article XV of the California Constitution (as amended from time to time).
Anything in this Note to the contrary notwithstanding, it is expressly
stipulated and agreed that the intent of Borrowers and Lender is to comply at
all times with all usury and other laws relating to this Note. If the laws of
the State of California would now or hereafter render usurious, or are revised,
repealed or judicially interpreted so as to render usurious, any amount called
for under this Note, or contracted for, charged or received with respect to the
loan evidenced by this Note, or if any prepayment by Borrowers results in
Borrowers having paid any interest in excess of that permitted by law, then it
is Borrowers' and Lender's express intent that all excess amounts theretofore
collected by Lender be credited to the principal balance of this Note (or, if
this Note has been paid in full, refunded to Borrowers), and the provisions of
this Note immediately be deemed reformed and the amounts therefor collectible
hereunder reduced, without the necessity of execution of any new document, so as
to comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder.
12. PREPAYMENT: Borrowers may prepay all or any portion of this Note at
any time prior to the stated maturity date, with no premium or penalty, and
interest shall thereupon cease on the portion of the principal amount prepaid.
13. GENERAL PROVISIONS: This Note shall be governed by and construed in
accordance with the laws of the State of California. The makers of this Note
hereby waive presentment for payment, protest and demand, notice of protest,
demand and dishonor and nonpayment of this Note, and consent that Lender may
extend the time for payment or otherwise modify the terms of payment or any part
of the whole of the debt evidenced by this Note, at the request of any person
liable hereon, and such consent shall not alter nor diminish the liability of
any person. Borrowers hereby waive the defense of the statute of limitations in
any action on this Note to the extent permitted by law. Time is of the essence
of this Note, the Second Deed of Trust and any other document executed by
Borrowers in connection therewith. Liability hereunder shall be joint and
several both between Borrowers and among all other persons and entities now or
hereafter liable for all or any part of the Loan.
14. THIS NOTE, THE LOAN AGREEMENT, THE DEED OF TRUST, AND ALL RELATED
DOCUMENTATION ARE EXECUTED VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE
ON THE PART OF OR ON BEHALF OF THE PARTIES HERETO, WITH THE FULL INTENT OF
CREATING THE OBLIGATIONS AND SECURITY INTERESTS DESCRIBED HEREIN AND THEREIN.
THE PARTIES ACKNOWLEDGE THAT: (a) THEY HAVE READ SUCH DOCUMENTATION; (b) THEY
HAVE BEEN REPRESENTED IN THE PREPARATION, NEGOTIATION AND EXECUTION OF SUCH
DOCUMENTATION
-2-
BY LEGAL COUNSEL OF THEIR OWN CHOICE; (c) THEY UNDERSTAND THE TERMS AND
CONSEQUENCES OF THIS NOTE, THE LOAN AGREEMENT, THE DEED OF TRUST, AND ALL
RELATED DOCUMENTATION AND THE OBLIGATIONS THEY CREATE; AND (d) THEY ARE FULLY
AWARE OF THE LEGAL AND BINDING EFFECT OF THIS NOTE, THE DEED OF TRUST AND THE
OTHER DOCUMENTS CONTEMPLATED BY THIS AGREEMENT.
[Signatures on next page]
-3-
IN WITNESS WHEREOF, Borrowers have executed this Note as of the day and
year first above written.
---------------------------------------------
XXXX X. XXXXXX
---------------------------------------------
XXXXX X. XXXXXXXX
-4-
EXHIBIT B
FORM OF DEED OF TRUST
[ATTACHED]
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
650 Page Mill Road ---------------------------------------
Xxxx Xxxx, XX 00000 XXXXXX XXXXX RDE # 001
Attn: Real Estate Dept.: DSS SANTA XXXXX COUNTY RECORDER 3/03/2000
Recorded at the request of 8:00 AM
Fidelity National Title Ins.
-------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(THIS DEED OF TRUST CONTAINS AN ACCELERATION CLAUSE)
This DEED OF TRUST, made , between
Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx, husband and wife , herein
called TRUSTOR, whose address is 00000 Xxxxxxx Xxxxxx Xxxxxxxx, XX 00000
(Number and Street) (City) (State)
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called
TRUSTEE, and Inktomi Corporation, a Delaware corporation, herein called
BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in Trust, with Power of Sale, that
property in the Xxxxxxxxxxxxxx Xxxx Xxxxxx xx Xxxxx Xxxxx, Xxxxx xx
Xxxxxxxxxx, described as:
See Exhibit "A" attached hereto and made a part hereof for Legal Description
THIS DEED OF TRUST IS SECOND
AND SUBORDINATE TO THE LIEN
OF THAT CERTAIN DEED OF TRUST
RECORDING CONCURRENTLY
HEREWITH.
together with the rents, issues and profits thereof, subject, however, to the
right, power and authority hereinafter given to and conferred upon Beneficiary
to collect and apply such rents, issues and profits, for the purpose of securing
(1) payment of the sum of $1,500,000 with Interest thereon according to the
terms of a promissory note or notes of even date herewith made by Trustor,
payable to order of Beneficiary, and extensions or renewals thereof, (2) the
performance of each agreement of Trustor incorporated by reference or contained
herein and (3) payment of additional sums and interest thereon which may
hereafter be loaned to Trustor, or his successors or assigns, when evidenced by
a promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property
above described, Trustor expressly makes each and all of the agreements, and
adopts and agrees to perform and be bound by each and all of the terms and
provisions set forth in subdivision A, and it is mutually agreed that each and
all of the terms and provisions set forth in subdivision B of the fictitious
deed of trust recorded in Orange County August 17, 1964, and in all other
counties August 18, 1964, in the book and
at the page of the Official Records in the office of the county recorder of the
county where said property is located, noted below opposite the name of such
county, namely:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1283 556 Kings 658 713 Placer 1028 379 Sierra 38 187
Alpine 3 130-31 Lake 437 110 Plumas 156 1307 Siskiyou 000 000
Xxxxxx 000 000 Lassen 192 367 Riverside 3778 347 Xxxxxx 1287 621
Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2087 427
Calaveras 000 000 Xxxxxx 000 000 San Xxxxxx 300 405 Stanislaus 1970 56
Colusa 323 391 Marin 1849 122 San Bernardino 6213 788 Xxxxxx 685 585
Contra Costa 4884 1 Mariposa 90 453 San Francisco A-604 598 Tehama 000 000
Xxx Xxxxx 000 000 Mendocino 567 99 San Xxxxxxx 2855 283 Trinity 108 595
El Dorado 704 635 Merced 1680 763 San Xxxx Obispo 1311 137 Tulare 2530 108
Fresno 5052 623 Modoc 191 93 San Mateo 4778 178 Tuolumna 177 160
Xxxxx 469 76 Mono 69 302 Santa Xxxxxxx 2065 681 Ventura 2807 237
Humboldt 801 83 Monterey 357 239 Santa Xxxxx 6628 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Xxxx 1538 607 Yuba 000 000
Xxxx 000 000 Nevada 363 94 Shasta 500 633
Xxxx 3758 690 Orange 7182 18 San Diego SERIES 5 Book 1964, page 149774
shall inure to and bind the parties hereto, with respect to the property above
described. Said agreements, terms and provisions contained in said subdivisions
A and B, (identical in all counties, and printed on pages 3 and 4 hereof) are by
the within reference thereto, incorporated herein and made a part of this Deed
of Trust for all purposes as fully as if set forth at length herein, and
Beneficiary may charge for a statement regarding the obligation secured hereby,
provided the charge therefor does not exceed the maximum allowed by law.
If the Trustor shall sell, convey or alienate said property, or any part
thereof, or any interest therein, or shall be divested of his title or any
interest therein in any manner or way, whether voluntarily or involuntarily,
without the written consent of the beneficiary being first had and obtained,
beneficiary shall have the right, at its option, except as prohibited by law, to
declare any indebtedness or obligations secured hereby, irrespective of the
maturity date specified in any note evidencing the same, immediately due and
payable.
The undersigned Trustor, requests that a copy of any notice of default and any
notice of sale hereunder be mailed to him at his address hereinbefore set forth.
See Rider to Deed of Trust, attached hereto and made a part hereof, for
additional terms and conditions
STATE OF CALIFORNIA ) Signature of Trustor
COUNTY OF )ss.
)
---------------
On , before me,
--------------------------- ----------------------------------
Xxxx X. Xxxxxx
------------------------------
personally appeared ----------------------------------
---------- Xxxxx X. Xxxxxxxx
------------------------------,
personally known to me (or proved to me on [NOTARIAL SEAL]
the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged (This area for
to me that he/she/they executed the same official notarial seal)
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.
WITNESS my hand and official seal.
Signature
-------------------------------
(continued on next page)
been given as then required by law, Trustee, without demand on Trustor, shall
sell said property at the time and place fixed by it in said notice of sale,
either as a whole or in separate parcels, and in such order as it may determine,
at public auction to the highest bidder for cash in lawful money of the United
States, payable at time of sale. Trustee may postpone sale of all or any
portion of said property by public time fixed by the preceding postponement.
Trustee shall deliver to such purchaser its deed conveying the property so sold,
but without any covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter
defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sale, Trustee shall apply
the proceeds of sale to payment of: all sums expended under the terms hereof,
not then repaid, with accrued interest at the amount allowed by law in effect at
the date hereof; all other sums then secured hereby; and the remainder, if any,
to the person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may fropm time to time, by instrument in writing, substitute a successor
or successors to any Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in the office of
the recorder of the county or counties where said property is situated, shall be
conclusive proof of proper substitution of such successor Trustee or Trustees,
who shall, without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. Said instrument must contain the name
of the original Trustor, Trustee and Beneficiary hereunder, the book and page
where this Deed is recorded and the name and address of the new Trustee.
(8) That this Deed applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Beneficiary shall mean the owner and holder,
including pledgees, of the note secured hereby, whether or not named as
Beneficiary herein, in this Deed, whenever the context so requires, the
masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
(9) That Trustee accepts this Trust when this Deed, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
-------------
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes, and of
all other indebtedness secured by the foregoing Deed of Trust. Said note or
notes, together with all other indebtedness secured by said Deed of Trust, have
been fully paid and satisfied; and you are hereby requested and directed, on
payment to you of any sums owing to you under the terms of said Deed of Trust,
to cancel said note or notes above mentioned, and all other evidences of
indebtedness secured by said Deed of Trust delivered to you herewith, together
with the said Deed of Trust, and to reconvey, without warranty, to the parties
designated by the terms of said Deed of Trust, all the estate now held by you
under the same.
Dated
----------------------------------
-------------------------------
-------------------------------
PLEASE MAIL DEED OF TRUST,
NOTE AND RECONVEYANCE TO
------------------------------------------------------
DO NOT LOSE OR DESTROY THIS DEED OF TRUST OR THE NOTE WHICH IT SECURES. BOTH
MUST BE DELIVERED TO THE TRUSTEE FOR CANCELLATION BEFORE RECONVEYANCE WILL BE
MADE.
DEED OF TRUST
WITH POWER OF SALE
[LOGO]
FIRST AMERICAN
TITLE INSURANCE
COMPANY
TRUSTEE
EXHIBIT A
Lot 14, as shown on that certain Map entitled Tract No. 8456 which Map was filed
for record in the Office of the Recorder of the County of Santa Xxxxx, State of
California, on April 19, 1996 in Book 675 of Maps at page(s) 37 through 40.
Assessor's Parcel No: 000-00-000
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust
recorded in each county in California as stated in the foregoing Deed of Trust
and incorporated by reference in said Deed of Trust as being a part thereof as
if set forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep said property in good condition and repair; not to remove or
demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or destroyed
thereon and to pay when due all claims for labor performed and materials
furnished therefor; to comply with all laws affecting said property or requiring
any alterations of improvements to be made thereon; not to commit or permit
waste thereof; not to commit, suffer or permit any act upon said property in
violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all
other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance
satisfactory to and with loss payable to Beneficiary. The amount collected
under any fire or other insurance policy may be applied by Beneficiary upon any
indebtedness secured hereby and in such order as Beneficiary may determine, or
at option of Beneficiary the entire amount so collected or any part thereof may
be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to
such notice.
(3) To appear in and defend any action or proceeding purporting to affect
the security hereof or the rights or powers of Beneficiary or Trustee; and to
pay all costs and expenses, including cost of evidence of title and attorney's
fees in a reasonable sum, in any such action or proceeding in which Beneficiary
or Trustee may appear, and in any suit brought by Beneficiary to foreclose this
Deed.
(4) To pay: at least ten days before delinquency all taxes and assessments
affecting said property, including assessments on appurtenant water stock; when
due, all encumbrances, charges and liens, with interest, on said property or any
part thereof, which appear to be prior or superior hereto; all costs, fees and
expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein
provided, then Beneficiary or Trustee, but without obligation so to do and
without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may: make or do the same in such manner and to such extent
as either may deem necessary to protect the security hereof. Beneficiary or
Trustee being authorized to enter upon said property for such purposes; appear
in and defend any action or proceeding purporting to affect the security hereof
or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgment of either
appears to be prior or superior hereto; and, in exercising any such powers, pay
necessary expenses, employ counsel and pay his reasonable fees.
(5) To pay immediately and without demand all sums so expended by
Beneficiary or Trustee, with interest from date of expenditure at the amount
allowed by law in effect at the date hereof, and to pay for any statement
provided for by law in effect at the date hereof regarding the obligation
secured hereby any amount demanded by the Beneficiary not to exceed the maximum
allowed by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for
public use or injury to said property or any part thereof is hereby assigned and
shall be paid to Beneficiary who may apply or release such monies received by
him in the same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due
date, Beneficiary does not waive his right either to require prompt payment when
due of all other sums so secured or to declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor and
without notice, upon written request of Beneficiary and presentation of this
Deed and said note for endorsement, and without affecting the personal liability
of any person for payment of the indebtedness secured hereby, Trustee may:
reconvey any part of said property; consent to the making of any map or plat
thereof; join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed and said note to Trustee
for cancellation and retention or other disposition as Trustee in its sole
discretion may choose and upon payment of its fees, Trustee shall reconvey,
without warranty, the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. The Grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
(5) That as additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said property, reserving
unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to
collect and retain such rents, issues and profits as they become due and
payable. Upon any such default, Beneficiary may at any time without notice,
either in person, by agent, or by a receiver to be appointed by a court, and
without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said property or any part thereof, in
his own name xxx for or otherwise collect such rents, issues, and profits,
including those past due and unpaid, and apply the same, less costs and expenses
of operation and collection, including reasonable attorney's fees, upon any
indebtedness secured hereby, and in such order as Beneficiary may determine. The
entering upon and taking possession of said property, the collection of such
rents, issues and profits and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or invalidate any act
done pursuant to such notice.
(6) That upon default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, Beneficiary may declare all
sums secured hereby immediately due and payable by delivery to Trustee of
written declaration of default and demand for sale and of written notice of
default and of election to cause to be sold said property, which notice Trustee
shall cause to be filed for record. Beneficiary also shall deposit with
Trustee this Deed, said note and all documents evidencing expenditures secured
hereby.
After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of sale having
RIDER TO DEED OF TRUST GIVEN BY
XXXX X. XXXXXX AND XXXXX X. XXXXXXXX, AS TRUSTORS,
TO FIRST AMERICAN TITLE INSURANCE COMPANY, AS TRUSTEE,
FOR THE BENEFIT OF INKTOMI CORPORATION, A DELAWARE CORPORATION AS BENEFICIARY
The following provisions are hereby agreed to and made a part of the Deed
of Trust with Assignment of Rents by Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx, as
Trustors, in favor of First American Title Insurance Company, as Trustee, for
the benefit of Inktomi Corporation, a Delaware corporation, as Beneficiary (the
"Deed of Trust") as if fully set forth therein. Capitalized terms used herein
shall have the same meanings ascribed to them in the Deed of Trust.
1. NOTICES. Any notice, demand or request required or permitted to be
given by either Beneficiary or Trustor pursuant to the terms of the Deed of
Trust shall be in writing and shall be deemed given when delivered personally or
deposited in the U.S. Mail, Certified, First Class with postage prepaid, and
addressed to the parties as follows (or to such other address as the recipient
may from time to time designate in the manner prescribed herein): If to
Beneficiary, at 0000 Xxxx Xxxxx Xxx., XX XX0-0, Xxxxxx Xxxx, XX 00000,
Attention: Legal Department, and if to Trustors, at 00000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000. The address for notices may be modified by
delivery of written notice to the other party and recordation of a supplement by
the party requesting the change in accordance with this Section.
2. OTHER MORTGAGES. Trustors shall fully perform and satisfy all
covenants, conditions and obligations of Trustors under any and all mortgages
and deeds of trust ("Mortgages"), now or hereafter encumbering any portion of
the property encumbered by this Deed of Trust, including, but not limited to,
that certain Deed of Trust of even date herewith by Trustors in favor of Bank of
America securing an original principal amount of Seven Hundred Fifty Thousand
DOllars ($750,000), (the "First Deed of Trust") and Trustors shall not cause or
permit the aggregate indebtedness secured by the First Deed of Trust to exceed
the amount of such indebtedness as of the date hereof. The occurrence of any
default or event of default under any Mortgages and the existence of any
indebtedness in excess of such amount shall each automatically constitute an
immediate, material default under this Deed of Trust and shall entitle
Beneficiary to exercise any and all rights and remedies under this Deed of Trust
without first having given Trustors any notice of, or opportunity to cure, such
default. In the event of any default by Trustor under any such Mortgages,
Beneficiary may, in its discretion, cure such default, and the amounts paid and
costs incurred by Beneficiary in connection with such cure shall be reimbursed
to Beneficiary by Trustor upon demand, with interest thereon from the date
incurred by Beneficiary until repaid at the default rate stated in the Note.
3. LOAN AGREEMENT. Trustors shall fully perform and satisfy all
covenants, conditions and obligations of Trustors under that certain Employee
Loan Agreement entered into concurrently herewith by Trustors and Beneficiary
(the "Loan Agreement"). The occurrence of any "Maturity Event" as defined in
the note secured hereby shall automatically constitute an immediate, material
default under this Deed of Trust (after the occurrence of any notice and the
lapse of any cure period specified in the Loan Agreement) and shall entitle
Beneficiary to exercise any and all rights and
remedies under this Deed of Trust without first having given Trustors any
further notice of, or opportunity to cure, such default.
The Loan Agreement and Note provide, among other things, that if Trustors,
without the prior written consent of Beneficiary, voluntarily or by operation of
law, sell, convey, assign or otherwise transfer or agree to sell, convey or
otherwise transfer, all or any portion of, or any interest in, the Property, the
entire unpaid principal balance of the "Loan" described therein, together with
all accrued but unpaid interest thereon, and all other sums due hereunder, shall
become immediately due and payable without further demand or notice to Trustors.
-----------------------------
Xxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
