EXHIBIT 10.42
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT ("Termination Agreement") is made
and entered into as of the 28th day of August, 2002, by and between INKTOMI
CORPORATION, a Delaware corporation, as Lessee (the "Lessee"), WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity except
as otherwise expressly provided herein, but solely as Owner Trustee of the
Inktomi Trust 2000 and Lessor ("WTC") WILMINGTON TRUST FSB, a federal savings
bank, not in its individual capacity except as otherwise expressly provided
herein, but solely as Co-Owner Trustee of the Inktomi Trust 2000 and Lessor
under the Lease ("WTC-FSB"); DEUTSCHE BANK G, NEW YORK BRANCH, a duly licensed
branch of Deutsche Bank AG, a German corporation, as an Investor (together with
any permitted successors and assigns, each an "Investor" and collectively the
"Investors"); DEUTSCHE BANK G, NEW YORK AND/OR CAYMAN ISLANDS BRANCH, as a
Lender (together with the other financial institutions as may from time to time
become lenders, the "Lenders") under the Credit Agreement and as Agent for the
Lenders (in such capacity, the "Agent"); and DEUTSCHE BANK SECURITIES INC. f/k/a
DEUTSCHE BANC ALEX. XXXXX INC., as Arranger (the "Arranger").
RECITALS
The Lessee, WTC, WTC-FSB, the Investors, the Lenders, the Agent and the
Arranger are parties to that certain Participation Agreement, dated as of August
24, 2000 (as amended, restated, supplemented or otherwise modified from time to
time, the "Participation Agreement") and the Lessee and WTC-FSB are parties to
that certain Lease, dated as of August 24, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Lease") pursuant to
which the Participants have provided certain credit facilities to the Lessee
(collectively, the "Facility"). Below is the amount required to be paid by the
Lessee to the Agent (for distribution among the Agent and the Participants in
accordance with the provisions of the Participation Agreement), calculated as of
August 28, 2002 (the "Payoff Calculation Date"), in order to pay off all
outstanding obligations of the Lessee under the Facility and purchase the
Project (defined below).
The Lessee, WTC, WTC-FSB, the Investors, the Lenders, the Agent and the
Arranger entered into that certain Conditional Waiver and Amendment, dated as of
August 13, 2002 pursuant to which the above mentioned parties agreed to, inter
alia, waive the thirty (30) day notice requirement for Lessee's exercise of its
Purchase Option and the waiver of Lessee's obligation to indemnify each
Indemnified Person for any payments Lessee may make in connection with its
termination of the Lease on a day which is not the last day of an Interest
Period.
The parties have previously entered into various agreements more
particularly described herein, in connection with certain real property located
in the County of San Mateo, Foster City, California (the "Project").
The Lessee has exercised the Purchase Option under Section 20.1 of the
Lease pursuant to a Purchase Notice delivered to the Lessor on August 23, 2002
(the "Purchase Notice"). In
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connection with the closing of the purchase of the Project pursuant to the
Purchase Notice, the parties desire to terminate and release certain agreements
and convey the Project to the Lessee upon the satisfaction of the conditions set
forth below.
NOW, THEREFORE, for good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENTS
1. Purchase Calculation. The following is the amount of the Purchase Option
Price required to be paid by the Lessee to the Agent (for distribution among the
Agent and the Participants in accordance with the provisions of the
Participation Agreement), calculated as of the Payoff Calculation Date, in order
to pay off all outstanding obligations of the Lessee under the Facility:
Principal Balance of the Notes: $101,064,000.00
Interest through Payoff Calculation Date: 34,636.19
Principal Balance of Lessor Contributions $12,936,000.00
Lessor Yield through Payoff Calculation 32,436.39
Date: August 28, 2002
Total Through Payoff Calculation Date $114,067,072.58
Date: August 28, 2002
If the payoff sum is not received on the Payoff Calculation Date
interest and yield shall accrue thereon at an annual rate equal to the ABR and
shall continue to accrue as provided in the Participation Agreement from the
Payoff Calculation Date through the date that the payoff sum is actually
received by the Agent. Any payment received by the Agent other than on a
Business Day of the Agent (or after 2:00 pm EST on any Business Day) shall be
deemed not to have been received until the following Business Day. Wire
instructions for delivery of the payoff sum are set forth below:
Bank: Deutsche Bank Trust
ABA Routing #: 000-000-000
Account Name: Deutsche Bank NY Loan Operations
Account #: 60200119
Reference: Inktomi
Attention: Xxxxxx Xxxxxxxxxx
If payment will not be received by the Payoff Calculation Date, a new
calculation of the Purchase Option Price should be requested from the Agent.
2. Additional Fees and Disbursements. In addition to the payment described in
Paragraph 1 above, Lessee agrees to pay the amounts identified on Schedule 1
attached hereto, calculated as of the Payoff Calculation Date. Further, Lessee
agrees to pay any fees or expenses arising subsequent
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to the execution of this Termination Agreement in connection with the
administration of the Operative Agreements or in connection with Lessee's
exercise of the Purchase Option, including but not limited to additional Taxes,
fees, out-of-pocket expenses and disbursements.
3. Termination of Operative Agreements. Upon Agent's receipt of the payment
required in Paragraph 1 above, each of the following agreements, as amended from
time to time (each an "Operative Agreement" and collectively the "Operative
Agreements"), is hereby terminated subject to the provisions of Paragraph 4
below:
(a) PARTICIPATION AGREEMENT, dated as of August 24, 2000, among Lessee,
WTC, WTC-FSB, Investor, Lender and Arranger, as amended by that certain
Amendment to Participation Agreement, dated as of May 7, 2001 and that certain
Second Amendment to Participation Agreement, dated as of October 22, 2001;
(b) LEASE, dated as of August 24, 2000, between Lessee and WTC-FSB;
(c) LEASE SUPPLEMENT NO. 1 - LAND, dated as of August 24, 2000, between
WTC-FSB and Lessee, as assigned to Agent and recorded in the real property
records for San Mateo County, California on August 24, 2000 at Reception No.
2000-105137;
(d) LEASE SUPPLEMENT NO. 2 - IMPROVEMENTS, dated as of August 24, 2000,
between WTC-FSB and Lessee, as assigned to Agent and recorded in the real
property records for San Mateo County, California on August 24, 2000 at
Reception No. 2000-105138;
(e) DEFEASANCE DEPOSIT AGREEMENT, dated as of August 24, 2000, between
Lessee, Agent, WTC and Investor;
(f) ACCOUNT CONTROL AGREEMENT, dated as of August 24, 2000, between
Lessee, Agent and Xxxxxxx Xxxxx Xxxxxx Inc.;
(g) TRUST AGREEMENT, dated as of August 24, 2000, between Investors and
WTC;
(h) CREDIT AGREEMENT, dated as of August 24, 2000, between WTC, Agent
and several Lenders from time to time party thereto.
(i) LAND NOTE in the principal amount of Thirty Three Million Six
Hundred Fifty Nine Thousand Dollars ($33,659,000.00), dated August 24, 2000, by
WTC for the benefit of the Lenders;
(j) IMPROVEMENTS NOTE in the principal amount of Sixty Seven Million
Four Hundred and Five Thousand Dollars ($67,405,000.00), dated August 24, 2000,
by WTC for the benefit of the Lenders;
(k) ASSIGNMENT OF LEASES AND RENTS, dated as of August 24, 2000, between
WTC-FSB and Agent, in the real property records for San Mateo County, California
on August 24, 2000 at Reception No. 2000-105139;
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(l) ASSIGNMENT OF LEASES AND RENTS SUPPLEMENT, dated as of August 24,
2000, between WTC-FSB and Agent, in the real property records for San Mateo
County, California on August 24, 2000 at Reception No. 2000-105140;
(m) DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT, dated as of August 24, 2000, between WTC-FSB, as Grantor, Fidelity
National Title Insurance Company, as Trustee and Agent, as Grantee and recorded
on August 24, 2000 in the real property records for San Mateo County, California
at Reception No. 2000-105141;
4. No Release of Indemnities. Neither Agent, WTC, WTC-FSB, Lenders, Investors or
Arranger waives or releases the Lessee, its subsidiaries and related and
affiliated corporations from any obligations, claims or demands arising from any
indemnification or other provisions contained in any of the Operative Agreements
which, by their respective terms, expressly survive the termination of the
relevant Operative Agreement.
5. Release and Offset of Defeasance Deposit Collateral. Upon confirmation from
Agent of the execution of this Termination Agreement, Xxxxxxx Xxxxx Barney,
Inc., not in its individual capacity but solely as the securities intermediary
of the Account under the Account Control Agreement, shall transfer to Agent, on
the Payoff Calculation Date, such amount of the Defeasance Deposit Collateral as
is necessary to pay the Purchase Option Price, as calculated above.
Additionally, Solomon Xxxxx Xxxxxx shall transfer to McGuireWoods LLP and First
American Title by wire transfer, the amounts set forth on Schedule 1 attached
hereto; provided, however, that $82,500.00 of the payment to First American
Title will be utilized by First American Title for the payment of transfer taxes
incurred in connection with the transactions contemplated in this Termination
Agreement. Any remaining Defeasance Deposit Collateral shall be transferred in
accordance with instructions received from Lessee. Upon such transfers, the
Defeasance Deposit Agreement and the Account Control Agreement shall terminate
as provided in Paragraph 3 and all liens, claims and encumbrances against such
remaining Defeasance Deposit Collateral shall terminate as provided therein.
6. Execution of Additional Documents. Agent, WTC, WTC-FSB, Lender and Investor
each agree, at Lessee's sole cost and expense, to promptly execute such
additional documents and instruments as are set forth on Schedule 2 hereto and
such additional documents and instruments as are reasonably necessary or
desirable to evidence the terminations set forth in Paragraph 3 above.
7. Counterparts. This Termination Agreement may be signed in two or more
counterparts. When at least one such counterpart has been signed by each party,
this Termination Agreement shall be deemed to have been fully executed, each
counterpart shall be deemed to be an original, and all counterparts shall be
deemed to be one and the same agreement.
8. Definitions. Capitalized terms used but not defined herein shall have the
meaning given to them in Annex A to the Participation Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Termination Agreement
to be executed by their respective duly authorized officers as of the day and
year first above written.
INKTOMI CORPORATION, as Lessee
By: /s/
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Name: Xxxxx Xxxxxxxxx
------------------------------------
Title: CFO
-----------------------------------
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee and Lessor
By: /s/
--------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
------------------------------------
Title: Senior Financial Services Officer
-----------------------------------
WILMINGTON TRUST FSB, not in its
individual capacity but solely as
Co-Owner Trustee and Lessor
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Vice President
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DEUTSCHE BANK AG, NEW YORK BRANCH,
as Investor
By: /s/
--------------------------------------
Name: Xxxx X. X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
By: /s/
--------------------------------------
Name: Xxxxxxx X. X'Xxxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH, as a
Lender and as Agent for the Lenders
By: /s/
--------------------------------------
Name: Xxxx X.X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
By: /s/
--------------------------------------
Name: Xxxxxxx X. X'Xxxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
DEUTSCHE BANK SECURITIES INC.
f/k/a DEUTSCHE BANC ALEX. XXXXX INC.,
as Arranger
By: /s/
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Name: Xxxxxx Xxxxxxxxx, Xx.
------------------------------------
Title: Managing Director
-----------------------------------
By: /s/
--------------------------------------
Name: Xxxxx Xxxxx
------------------------------------
Title: Director
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SCHEDULE 1
FEES AND DISBURSEMENTS
1. McGuireWoods LLP, Counsel for the Agent $43,381.90
Wire instructions for delivery of fees to Counsel for the Agent are set
forth below:
BANK OF AMERICA - Xxxxxx & Xxxx Xxxxxxx, Xxxxxxxx, XX 00000
ABA: 000000000
Credit: McGuireWoods Operating Account
Account Number: 000003664964
Reference: (W. Xxxx Xxxxx 2027789/0003)
McGuireWoods Accounting Contact: Xxxxxxx Xxxx (000)-000-0000
Bank Contact: Xxxxxx Xxxxxxxx (000)-000-0000, Opt. 2, Ext. 55143
2. First American Title $157,780.00
Wire instructions for delivery of disbursements for First American Title
as set forth below:
First American Trust Company - Santa Xxx Xxxxxx
000 X. Xxxx Xxxxxx, Xxxxx Xxx, XX 00000
ABA: 122 241 255
Account Name: First American Title Insurance Company Trust Account
Account Number: 20103
Reference: NC333358
Attention: Xxxxxxxxxxx X. Xxxx
Office: 635-10, Special Products
Client: Inktomi
SCHEDULE 2
TERMINATION DOCUMENTS
1. Quitclaim Deed;
2. Termination of Assignment of Leases and Rents;
3. Termination of Lease, Lease Supplement No. 1 -- Land and Lease
Supplement No. 2 - Improvements;
4. Substitution of Trustee and Deed of Full Reconveyance.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Xxxxxx X. Xxxxx, Esq.
Crosby, Heafey, Xxxxx & May
0 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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Space above this line reserved for Recorder's use
QUITCLAIM DEED
The undersigned Grantor declares that Documentary Transfer Tax is not
part of the public records.
FOR VALUE RECEIVED, WILMINGTON TRUST FSB, a federal savings bank, not in
its individual capacity but solely as Co-Owner Trustee appointed pursuant to
that certain Trust Agreement dated as of August 24, 2000 (the "Grantor"), hereby
quitclaims to INKTOMI CORPORATION, a Delaware corporation, all that certain real
property situated in the City of Xxxxxx City, County of San Mateo, State of
California, as legally described on Schedule 1 attached hereto and made a part
hereof (the "Property") together with all of Grantor's right, title and interest
in and to all improvements and structures located thereon and all easements,
appurtenances, rights and privileges of Grantor appertaining to the Property.
IN WITNESS WHEREOF, the undersigned has executed this Quitclaim Deed as
of August 28, 2002.
GRANTOR:
WILMINGTON TRUST FSB, a federal
savings bank, not in its individual capacity
but solely as Co-Owner Trustee appointed
pursuant to that certain Trust Agreement
dated as of August 24, 2000
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
SCHEDULE 1
LEGAL DESCRIPTION
PARCEL ONE:
Parcel I as created by that certain Xxx Xxxx Xxxxxxxxxx Xx. XX-00-000, recorded
October 19, 1998 as Document No. 98169031, Official Records, and further
described as follows:
Commencing at a point on the Northwesterly line of State Xxxxxxx Xxxxx 00 (200
feet wide) being the southwesterly corner of parcel designated "PARCEL 1C" in
that certain Final order of Condemnation, recorded May 12, 1967, in Book 5306 of
Official Records at page 220, Records of San Mateo County, thence along said
northwesterly line, North 42 degrees 11'46" East, 1024.01 feet to the TRUE POINT
OF BEGINNING; Thence North 47 degrees 48' 14" West, 47.50 feet; Thence North 42
degrees 11' 46" East, 55.87 feet; Thence North 19 degrees 14' 15" West, 225.61
feet to a point on a nontangent curve having a radius of 671.00 feet, from which
point a radial line bears North 10 degrees 21' 52" West; Thence northeasterly,
along said curve to the left through a central angle of 8 degrees 52' 23", an
arc distance of 103.91 feet; Thence radial to last said curve, North 19 degrees
12' 15", West, 353.53 feet to a point on the northerly line of Parcel 2 of
Parcel Map No. 39-80, filed for recorded in Book 52 of Parcel Maps at Pages 42
and 43, Records of San Mateo County;
Thence along said northerly line the following seven (7) courses;
1. North 66 degrees 27' 38" East, 74.77 feet;
2. North 62 degrees 34' 48" East, 130.91 feet;
3. North 53 degrees 22' 49" East, 50.09 feet;
4. North 47 degrees 11' 51" East, 125.14 feet;
5. North 32 degrees 12' 03" East, 26.25 feet;
6. North 44 degrees 54' 58" East, 50.19 feet; and
7. North 55 degrees 44' 31" East, 9.79 feet;
Thence leaving said northerly line, South 25 degrees 09' 20" East 136.05 feet;
Thence North 64 degrees 50' 40" East, 22.71 feet; Thence North 42 degrees 27'
02" East, 270.86 feet; Thence North 04 degrees 11' 44" East, 52.00 feet to a
point on the northerly line of said Parcel 2 of Parcel Map No. 39-80;
Thence along said northerly line the following four (4) courses:
1. South 64 degrees 21' 32" East, 27.73 feet;
2. South 85 degrees 48' 16" East, 129.85 feet;
3. North 61 degrees 26' 03" East, 51.24 feet; and
4. North 68 degrees 58' 30" East, 127.02 feet to the most easterly corner
of said Parcel 2 and a point in said northwesterly line of State
Xxxxxxx Xxxxx 00;
Thence southwesterly along said northwesterly line and the southeasterly line of
said Parcel 2 the following three (3) courses;
1. South 42 degrees 27' 02" West, 897.25 feet;
2. South 12 degrees 32' 05" West, 202.07 feet; and
3. South 42 degrees 11' 16" West, 327.25 feet to the True Point of Beginning.
PARCEL TWO:
Parcel II as created by that certain Xxx Xxxx Xxxxxxxxxx Xx. XX00-000, recorded
October 19, 1998 as Document No. 98169031, Official Records of San Mateo County
and further described as follows:
COMMENCING at a point in the Northwesterly right of way line of State Highway
route 92 (200 feet wide) being also the most Easterly corner of Parcel 2 of
Parcel Map No. 39-80, filed for record in Book 52 of Parcel Maps at pages 42 and
43, Records of San Mateo County; thence Westerly along the Northerly line of
said Parcel 2, the following four courses: South 68 degrees 58' 30" West, 127.02
feet; South 61 degrees 26' 03" 51.24 feet; North 85 degrees 48' 16" West 129.85
feet; and North 64 degrees 21' 32" West 27.73 feet to the TRUE POINT OF
BEGINNING; thence South 04 degrees 11' 44" West 52.00 feet; thence South 42
degrees 27' 02" West 270.86 feet; thence South 64 degrees 50' 40" West 22.71
feet; thence North 25 degrees 09' 20" West 136.05 feet, to said Northerly line
of Parcel 2 of Parcel Map No. 39-80; thence along said Northerly line North 55
degrees 44' 31" East 242.00 feet and North 88 degrees 14' 15" East 65.0 feet to
the TRUE POINT OF BEGINNING.
PARCEL THREE:
Parcel III as created by that certain Xxx Xxxx Xxxxxxxxxx Xx. XX00-000, recorded
October 19, 1998 as Document No. 98169031, Official Records of San Mateo County
and further described as follows:
Beginning at a point in the southerly line of East Third Avenue (80 feet wide),
being also the northeasterly corner of Parcel 1 of Parcel Map No. 39-80, file
for record in Book 52 of Parcel Maps at pages 42 and 43, Records of San Mateo
County;
Thence along said southerly line, North 70 degrees 45' 45" East, 5.97 feet to a
point on a non-tangent curve, from which point a radial line bears North 46
degrees 20' 02" East;
Thence easterly, northerly and westerly along the right of way line of East
Third Avenue, along said non-tangent curve to the left, having a radius of 44.50
feet, through a central angle of 264 degrees 20' 35", an arc distance of 205.31
feet to a point of reverse curvature;
Thence westerly, along a reverse curve to the right, having a radius of 49.50
feet, through a central angle 18 degrees 46' 18", an arc distance of 16.22 feet;
Thence, tangent to last said curve, South 70 degrees 45' 45" West 16.24 feet to
a point on the northerly extension of the easterly line of said Parcel 1 of
Parcel Map No. 39-80;
Thence along said extension, North 19 degrees 14' 15" West, 22.10 feet to the
intersection of the northerly line of Third Avenue with said extension of said
easterly line;
Thence along said northerly line, South 70 degrees 45' 45" West, 1,017.61 feet,
to the most westerly corner of said Parcel 2 of said Parcel map No. 39-80;
Thence along the northerly line of said Parcel 2, the following thirteen (3)
courses:
1. North 49 degrees 55' 43" East, 12.25 feet;
2. North 61 degrees 13' 12" East, 271.98 feet;
3. North 65 degrees 58' 42" East, 49.80 feet;
4. South 86 degrees 22' 18" East, 41.20 feet;
5. North 55 degrees 34' 52" East, 64.36 feet;
6. North 67 degrees 59' 17" East, 50.00 feet;
7. North 59 degrees 27' 28" East, 101.12 feet;
8. North 68 degrees 22' 12" East, 300.01 feet;
9. North 67 degrees 59' 17" East, 50.00 feet;
10. North 73 degrees 41' 53" East, 50.25 feet;
11. North 69 degrees 08' 02" East, 450.09 feet;
12. North 60 degrees 01' 10" East, 50.49 feet; and
13. North 66 degrees 27' 38" East, 0.26 feet;
Thence leaving said northerly line of Parcel 2, along a radial line South 19
degrees 14' 15" East 353.53 feet to a point on a radial curve having a radius of
671.00 feet;
Thence westerly along said curve, through a central angle of 8 degrees 52' 23",
an arc distance of 103.91 feet to a point on said curve from which point a
radial line bears North 10 degrees 21' 52" West; Thence South 19 degrees 14' 15"
East, 225.61 feet; Thence South 42 degrees 11' 46" West, 55.87 feet; Thence
South 47 degrees 48' 14" East 47.50 feet to a point in the northwesterly line of
State Xxxxxxx Xxxxx 00 (200 feet wide);
Thence along said northwesterly line South 42 degrees 11' 46" West, 1024.01 feet
to the most southwesterly corner of a parcel of land designated, "PARCEL 1C" in
that certain Final Order of Condemnation, recorded May 12, 1967 in Book 5306 of
Official Records at page 220, Records of San Mateo County, being also a point in
the southeasterly line of Parcel 1 of Parcel Map No. 44-81, filed for record in
Volume 52 of Parcel Maps at Pages 47 and 48, Records of San Mateo County;
Thence along said southeasterly line, North 39 degrees 54' 19" East, 662.9 feet
to the southeasterly corner of Parcel 1 of Parcel Map No. 46-82, filed for
record in Volume 53 of Parcel Maps at Pages 8 and 9, Records of San Mateo
County; Thence along the easterly line of said Parcel 1 of Parcel Map Xx. 00-00,
Xxxxx 00 degrees 14' 15" West, 598.13 feet to the Point of Beginning.
PARCEL FOUR:
A non-exclusive perpetual easement for the purposes of construction, placing,
installing, using, maintaining, operating, reconstructing, replacing, repairing,
renewing and removing an (A) underground eight (8) inch sanitary sewer line,
together with any and all improvements appurtenant to such sewer line and/or any
other improvements required or necessary, to construct, place, install, use,
maintain, operate, reconstruct, replace, repair, renew or remove said sewer line
and its appurtenances, and (B) an underground thirty-six (36) inch storm drain
line, together with any and all improvements appurtenant to such storm drain
line and/or any other improvements required or necessary to construct, place,
install, use, maintain, operate, reconstruct, replace, repair, renew or remove
said storm drain line and its appurtenances, in, through, over, along, across
and under the "Easement Area", more particularly described as follows:
A strip of land, 15 feet in width, situate in Xxxxxx Xxxx, Xxxxxx xx Xxx Xxxxx,
Xxxxx xx Xxxxxxxxxx, being a portion of Parcel 1, as said parcel is shown on
Parcel Map No. 46-82, filed for record November 30, 1982 in Book 53 of Parcel
maps at pages 8 and 9, San Mateo County Records, the southwesterly line of said
strip being described as follows:
Beginning at the southwesterly corner of said Parcel 1, said corner being on the
northeasterly line of Lincoln Centre Drive (60' wide) as shown on said map;
Thence along the southerly line of said Parcel 1, and the northeasterly
prolongation thereof, North 73 degrees 11' 08" East, 530.47 feet to the
northwesterly line of said Parcel 1 and the terminus of said strip.
The northwesterly line of said strip shall be lengthened or shortened to begin
on the southwesterly line of said Parcel 1 and terminate on said northeasterly
line of said Parcel 1. The above easement is appurtenant to PARCELS I & II above
and was created by that certain Easement Agreement recorded July 15, 1998 as
Document No. 98111669, Official Records.
Assessor's Parcel Nos: 000-000-000, 000-000-000, 000-000-000, 000-000-000 and
000-000-000.
State of Delaware
County of New Castle
On August 27, 2002, before me, Xxxxxx X. Xxxx, personally appeared Xxxxx
X. Xxxxxx, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxxx X. Xxxx (Seal)
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Recording Requested By
And when recorded mail to:
Xxxxxxx X. Xxxxxxx
McGuireWoods LLP
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
TERMINATION OF ASSIGNMENT OF LEASES AND RENTS AND
ASSIGNMENT OF LEASES AND RENTS SUPPLEMENT
The undersigned Deutsche Bank AG, New York and/or Cayman Islands Branch, not in
its individual capacity, but solely as "Agent", as the assignee of Lessor's
interest in and to the Lease, pursuant to that (i) Assignment of Leases and
Rents, dated August 24, 2000 between Wilmington Trust FSB, a federal savings
bank (not in its individual capacity but solely as Co-Owner Trustee appointed
pursuant to that certain Trust Agreement dated August 24, 2002 and "Lessor"
under the Lease and Agent, and recorded August 24, 2000, as Instrument
2000-105139, in the Official Records of San Mateo County, State of California,
and (ii) that Assignment of Leases and Rents Supplement, dated August 24, 2000
between Lessor and Agent, and recorded August 24, 2000, as Instrument
2000-105140, in the Official Records of San Mateo County, State of California
does hereby give notice that the indebtedness secured by said assignments has
been fully paid/or satisfied and does hereby terminate, release and discharge
said assignments.
Effective as of 5:00 p.m. PST on the date hereof, Agent hereby releases Lessor,
its parent, subsidiaries, related and affiliated corporations from each and all
of their obligations and any claims and demands of every kind and nature, known
and unknown, suspected and unsuspected, disclosed and undisclosed, arising out
of or in connection with the above referenced assignments; provided, however,
that the Agent does not hereby waive or release Lessor, its parent,
subsidiaries, related and affiliated corporations from any obligations, claims
or demands arising from indemnifications or liabilities contained in the
assignments and released above, which, by their respective terms, expressly
survive the termination of the assignments.
Dated: August 28, 2002
SIGNATURE PAGE TO
TERMINATION OF ASSIGNMENT OF LEASES AND RENTS AND
TERMINATION OF ASSIGNMENT OF LEASES AND RENTS SUPPLEMENT
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH, as a
Lender and as Agent for the Lenders
By: /s/
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Name: Xxxx X. X. Xxxxxx
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Title: Vice President
---------------------------------
By: /s/
------------------------------------
Name: Xxxxxxx X. X'Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
State of NY
---------------------
County of NY
---------------------
On August 27, 2002, before me, Xxxx X. Xxxxxx, personally appeared X.
Xxxxxx and X. X'Xxxxxxxx, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxx X. Xxxxxx (Seal)
Recording Requested By
And when recorded mail to:
Xxxxxxx X. Xxxxxxx
McGuireWoods LLP
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
TERMINATION OF LEASE, LEASE SUPPLEMENT NO. 1 -- LAND
AND LEASE SUPPLEMENT NO. 2 - IMPROVEMENTS
The undersigned Wilmington Trust FSB, a federal savings bank, not in its
individual capacity but solely as "Co-Owner Trustee" appointed pursuant to that
certain Trust Agreement, dated as of August 24, 2000, and "Lessor" under the
Lease, and Inktomi Corporation, a Delaware corporation, as "Lessee," in and
under the provisions of that certain Lease, dated as of August 24, 2000, as
supplemented by (i) that certain Lease Supplement No. 1 - Land, dated August 24,
2000, and recorded August 24, 2000, as Instrument 2000-105137, in the Official
Records of San Mateo County, State of California, and (ii) that certain Lease
Supplement No. 2 - Improvements, dated August 24, 2000, and recorded August 24,
2000, as Instrument 2000-105138, in the Official Records of San Mateo County,
State of California, (the Lease, as amended and supplemented from time to time,
the "Lease"), do hereby give notice of the termination of the Lease pursuant to
the terms set forth in that certain unrecorded Termination and Release Agreement
of even date herewith, the terms of which are incorporated herein by reference.
Deutsche Bank AG, New York and/or Cayman Islands Branch, not in its individual
capacity, but solely as "Agent", as the assignee of Lessor's interest in and to
the Lease and the Lease Supplements, pursuant to that certain Assignment of
Leases and Rents dated August 24, 2000, and recorded August 24, 2000, as
Instrument 2000-105139, in the Official Records of San Mateo County, State of
California, and that certain Assignment of Leases and Rents Supplement dated
August 24, 2000 and recorded August 24, 2000 as Instrument 2000-105140 in the
Official Records of San Mateo County, State of California, does hereby give
notice that the indebtedness secured by said assignment has been fully paid/or
satisfied and does hereby terminate, release and discharge said assignment.
Effective as of 5:00 p.m. PST on the date hereof, Lessor and Agent do each
hereby release Lessee, its parent, subsidiaries, related and affiliated
corporations from each and all of their obligations and any claims and demands
of every kind and nature, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of or in connection with the Lease;
provided, however, that neither Lessor nor Agent waives or releases Lessee, its
parent, subsidiaries, related and affiliated corporations from any obligations,
claims or demands arising from indemnifications or liabilities contained in the
Lease and released above, which, by their respective terms, expressly survive
the termination of the Lease.
Dated: August 28, 2002
SIGNATURE PAGE TO TERMINATION OF LEASE
WILMINGTON TRUST FSB, a federal
savings bank, not in its individual
capacity but solely as Co-Owner
Trustee appointed pursuant to that
certain Trust Agreement dated as
of August 24, 2000 and Lessor
By: /s/
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH, as a
Lender and as Agent for the Lenders
By: /s/
--------------------------------------
Name: Xxxx X. X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
By: /s/
--------------------------------------
Name: Xxxxxxx X. X'Xxxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
INKTOMI CORPORATION,
as Lessee
By: /s/
--------------------------------------
Name: Xxxxx Xxxxxxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
State of Delaware
County of New Castle
On August 27, 2002, before me, Xxxxxx X. Xxxx, personally appeared Xxxxx
X. Xxxxxx, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxxx X. Xxxx (Seal)
------------------------------------------
State of NY
County of NY
On August 27, 2002, before me, Xxxx X. Xxxxxx, personally appeared X.
Xxxxxx and X. X'Xxxxxxxx, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxx X. Xxxxxx (Seal)
State of California
County of San Mateo
On August 27, 2002, before me, Xxxxxx Xxxxxxxx Brazil, personally
appeared Xxxxx Xxxxxxxxx, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxxx Xxxxxxxx Brazil (Seal)
Recording Requested By
And when recorded mail to:
Xxxxxxx X. Xxxxxxx
McGuireWoods LLP
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
SUBSTITUTION OF TRUSTEE
DEED OF FULL RECONVEYANCE
The undersigned DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCH, not in
its individual capacity, but solely as "Agent", Beneficiary, in and under the
provisions of that certain Deed of Trust, Security Agreement, Fixture Filing and
Financing Statement executed by Wilmington Trust FSB, a federal savings bank,
not in its individual capacity but solely as Co-Owner Trustee appointed pursuant
to that certain Trust Agreement, dated as of August 24, 2000, Grantor, to
Fidelity National Title Insurance Company, Trustee for the use and benefit of
Deutsche Bank AG, New York and/or Cayman Islands Branch, not in its individual
capacity, but solely as Agent, original Beneficiary, dated August 24, 2000, and
recorded August 24, 2000, in the Official Records of San Mateo County, State of
California, instrument number 2000-105141, (the "Deed of Trust"), does in
accordance with the provisions of said Deed of Trust, hereby give notice of the
Substitution and Appointment of Deutsche Bank AG, New York and/or Cayman Islands
Branch, not in its individual capacity, but solely as Agent in place and instead
of Fidelity National Title Insurance Company, the Trustee above named, and does
hereby vest in said substituted Trustee, all the rights, title, estate, power,
duty and trusts conferred by said Deed of Trust upon the Trustee therein named.
And whereas the indebtedness secured, to be paid by the Deed of Trust above
mentioned has been fully paid/or satisfied.
NOW THEREFORE, Deutsche Bank AG, New York and/or Cayman Islands Branch, not in
its individual capacity, but solely as Agent as "Substituted Trustee", does
hereby GRANT AND RECONVEY unto the parties entitled thereto without warranty,
all the estate and interest derived to the said Trustee under said Deed of Trust
in the lands therein described, situated in the City of Xxxxxx Xxxx, Xxxxxx xx
Xxx Xxxxx, Xxxxx xx Xxxxxxxxxx. Reference being hereby made specifically to said
Deed of Trust and the record thereof for a particular description of said lands.
Dated: August 28, 2002
SEE ATTACHED FOR SIGNATURES AND NOTARY ACKNOWLEDGEMENT
SUBSTITUTION OF TRUSTEE
AND
DEED OF TRUST FULL RECONVEYANCE
SIGNATURE PAGE
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH, AS AGENT
as Substituted Trustee and as Beneficiary
By: /s/
--------------------------------------
Name: Xxxx X. X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
By: /s/
--------------------------------------
Name: Xxxxxxx X. X'Xxxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
NOTARY ACKNOWLEDGEMENT
STATE OF NY
COUNTY OF NY
On August 27, 2002, before me, the undersigned, a Notary Public in and for said
State, personally appeared X. Xxxxxx and X. X'Xxxxxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signed /s/ Xxxx X. Xxxxxx
