EXHIBIT 10.43
LEASE TERMINATION AGREEMENT
BY AND BETWEEN
PARKSIDE TOWERS CO-TENANCY,
a Tenancy-in-Common Between
GATEWAY PHOENIX ASSOCIATES, L.P.,
a California limited partnership
AND
5990 ▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.,
a California limited partnership
("LANDLORD"),
AND
EOP OPERATING LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
("EOP")
AND
INKTOMI CORPORATION,
A DELAWARE CORPORATION
("TENANT")
EXHIBIT 10.43
TABLE OF CONTENTS
Page
1. Capitalized Terms 2
2. Termination of Lease 2
3. Cash Consideration Amounts 3
4. Note, Participation Interest, and Deeds of Trust 4
5. Stock Grant 5
6. Termination Conditions 5
7. Release 7
8. Nature of this Agreement 8
9. Invalidity 8
10. Counterparts 8
11. Entire Agreement 8
12. Governing Law 9
13. Attorneys' Fees 9
14. Authority to Execute Agreement 9
15. Modifications 9
16. Further Assurances 9
17. Notices 9
18. Effect of Agreement 11
EXHIBITS
EXHIBIT A ▇▇▇▇ OF SALE
EXHIBIT B PROMISSORY NOTE
EXHIBIT C NOTE DEED OF TRUST
EXHIBIT D PERMITTED TITLE EXCEPTIONS
EXHIBIT 10.43
LEASE TERMINATION AGREEMENT
This LEASE TERMINATION AGREEMENT ("Agreement") is made and entered into
as of September 5, 2002, by and between PARKSIDE TOWERS CO-TENANCY, a tenancy in
common between GATEWAY PHOENIX ASSOCIATES, L.P., a California limited
partnership, and 5990 ▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P., a California limited
partnership ("LANDLORD"), EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership ("EOP"), and INKTOMI CORPORATION, a Delaware corporation ("TENANT").
R E C I T A L S :
A. Landlord and Tenant entered into that certain First Amended and
Restated Lease Agreement (the "OFFICE LEASE"), dated as of March 10, 2000,
whereby Landlord leased to Tenant and Tenant leased from Landlord approximately
398,460 rentable square feet of space (collectively the "PREMISES") located in
the East Office Building, the West Office Building, and the First Level Office
Space (as more particularly defined in the Lease), in the office project located
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "PROJECT").
B. The Office Lease, as previously amended by that certain First
Amendment to First Amended and Restated Lease Agreement (the "FIRST AMENDMENT")
dated as of May 31, 2001, is herein referred to as the "LEASE".
C. Landlord and Tenant desire to enter into this Agreement in order to
terminate the Lease and to release one another from their respective obligations
thereunder, except as otherwise provided herein. EOP directly or indirectly owns
and controls Landlord, and directly or through controlled affiliates may hold
some interest in the Project or the Lease, and therefore joins in this Agreement
to bind itself as herein provided.
D. Concurrently herewith, Landlord, EOP and Tenant have entered into
that certain Participation and Put Option Agreement (the "PARTICIPATION
AGREEMENT").
E. Concurrently herewith, Tenant has delivered to First American Title
Company (the "ESCROW HOLDER") the "Note", the "Note Deed of Trust", the "▇▇▇▇ of
Sale," and the "Participation Deed of Trust", as those terms are defined in this
Agreement, as required by the terms of this Agreement and the Participation
Agreement. The Note Deed of Trust and the Participation Deed of Trust are
referred to herein collectively as the "RECORDABLE DOCUMENTS".
F. Subject to the satisfaction or waiver of the "Termination
Conditions," as defined in Section 6.1 below, the Escrow Holder will on or
promptly after the "Lease Termination Date," as defined in Section 2 below,
cause the Recordable Documents to be recorded in the Official Records of San
Mateo County.
A G R E E M E N T :
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NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. CAPITALIZED TERMS. All undefined terms when used herein shall have
the same respective meanings as are given such terms in the Lease unless
expressly provided otherwise in this Agreement.
2. TERMINATION OF LEASE. The Lease shall terminate and be of no further
force or effect effective as of the date of full execution and delivery by
Landlord, EOP and Tenant of this Agreement and the satisfaction or waiver of the
Termination Conditions (the "LEASE TERMINATION DATE").
2.1 SURRENDER OF PREMISES. Tenant shall vacate the Premises and
surrender and deliver exclusive possession thereof to Landlord on or before the
Lease Termination Date. Tenant shall surrender possession of the Premises, and
Landlord shall accept such surrender, in the same physical condition as exists
on the date of this Agreement, absolutely "AS IS" and "WITH ALL FAULTS."
Landlord acknowledges that it constructed the Project, and that Landlord is
relying solely on its own investigation, evaluation and analysis of the Premises
in connection with this Agreement, save and except for Tenant's express
representations, warranties and covenants in this Agreement. Effective on the
Lease Termination Date, Tenant relinquishes any claim to ownership or
reimbursement with respect to any of the "Base Building Changes", as that term
is defined in Section 1 of the First Amendment. Tenant further agrees that,
subject to satisfaction or waiver of the Termination Conditions, Landlord shall
have the right to retain the two (2) HVAC chillers and associated cooling towers
which were purchased for use at the Premises, and are currently stored off-site
(the "HVAC CHILLERS"). Tenant will transfer ownership of such HVAC Chillers to
Landlord, effective on the Lease Termination Date, by delivery of a ▇▇▇▇ of sale
(the "▇▇▇▇ OF SALE") with respect to the HVAC Chillers, in the form attached
hereto as EXHIBIT A, also on an absolute "AS IS" and "WITH ALL FAULTS" basis,
with no representation, warranty or covenant except as set forth in this
Agreement or the ▇▇▇▇ of Sale. Tenant represents to Landlord that as of the
Termination Date, there are no storage or other costs outstanding with respect
to the HVAC chillers. Landlord shall bear all costs of storing the chillers
after the Lease Termination Date, as well as costs of moving and installing the
chillers.
2.2 CONTINUING LIABILITY. Notwithstanding the termination of the
Lease and the release of liability pursuant to Section 7 of this Agreement,
Tenant shall remain liable, with respect to the period of its tenancy prior to
the Lease Termination Date, for the performance of all of its obligations under
Section 10.2 and Section 6.3 of the Lease.
2.3 REPRESENTATIONS.
2.3.1 By Tenant. Tenant represents and warrants to
Landlord that (i) Tenant has not heretofore assigned or otherwise transferred
any portion of its interest in the Lease, or sublet or granted occupancy rights
to any portion of the Premises; (ii) no other person, firm or entity claiming
by, through or under Tenant has any right, title or interest in or to the
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Lease, the Premises or the claims being released by Tenant under Section 7.1
below; (iii) Tenant has the full right, legal power and actual authority to
enter into this Agreement and the "Operative Documents," as defined in Section
11 below, and to terminate Tenant's lease of the Premises; and (iv) as of the
date hereof there are no, and as of the Lease Termination Date there shall not
be any, mechanic's liens or other liens encumbering all or any portion of the
Project by virtue of any act or omission by or on behalf of Tenant.
2.3.2 By Landlord. Landlord and EOP each represents and
warrants to Tenant that (i) Landlord and EOP have not heretofore assigned or
otherwise transferred all or any portion of their interest in the Lease, the
Premises or the Project; (ii) no other person, firm or entity claiming by,
through or under Landlord or EOP has any right, title or interest in or to the
Lease, the Premises, the Project or the claims being released by Landlord and
EOP under Section 7.3 below; and (iii) Landlord and EOP have the full right,
legal power and actual authority to enter into this Agreement and the Operative
Documents and to terminate the Lease.
2.3.3 Survival. Notwithstanding the termination of the
Lease and the release of liability provided for herein, the representations and
warranties set forth in this Section 2.3 shall survive the Lease Termination
Date and each shall be liable for any material inaccuracy or breach thereof.
2.3.4 BASE RENT; ADDITIONAL RENT. Tenant has previously
paid Base Rent, and estimated Operating Costs and Taxes attributable to the
month of August, 2002, in the amount of $1,663,855.11 (collectively, the "AUGUST
RENT AMOUNTS"). Notwithstanding the fact that the Lease Termination Date occurs
after August 1, 2002, the amount of the "Cash Termination Payment", as defined
in Section 3.1, below, required to be paid by Tenant, shall be reduced by the
amount of the August Rent Amounts.
3. CASH CONSIDERATION AMOUNTS. The payments and agreements set forth in
this Section 3 are referred to herein as the "CASH CONSIDERATION AMOUNTS".
3.1 TERMINATION PAYMENT. Upon the satisfaction or waiver of all
Termination Conditions, excluding, however, any condition requiring the payment
called for by this Section 3.1, and excluding the "LC Condition", as that term
is defined in Section 6.2(ii), Tenant shall pay to Landlord, in immediately
available funds, the amount of $12,000,000.00, as reduced by the August Rent
Amounts under Section 2.3.4 above (the "CASH TERMINATION PAYMENT"). The Cash
Termination Payment shall be made on or before the Lease Termination Date by
bank wire transfer to Landlord's account as follows:
Bank of America
Dallas, TX
Bank ABA Number: ▇▇▇▇▇▇▇▇▇
Account Name: EOP Operating Limited Partnership
Account Number: 3750783137
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3.2 SURRENDER OF CASH SECURITY DEPOSIT. As of the Lease
Termination Date, Landlord shall be entitled to retain, without liability to
Tenant, and Tenant hereby relinquishes to Landlord the cash portion of the
"SECURITY DEPOSIT", in the amount of $1,521,709.00, which Landlord holds in
accordance with the terms of Section 4 of the Lease, together with any interest
accrued thereon and not paid to Tenant as of the date hereof.
3.3 ALLOWANCE. As of the Lease Termination Date, Tenant
relinquishes any claim to, and Landlord shall have no liability to Tenant with
respect to, the undisbursed portions of the "ALLOWANCE" granted to Tenant under
Section 2.3 of Exhibit B to the Lease. Tenant acknowledges that Landlord has
previously funded approximately $441,223.00 of the Allowance.
3.4 LETTER OF CREDIT. Landlord and Tenant hereby acknowledge and
agree that, in accordance with the terms of Section 36 of the Lease, Landlord
currently holds that certain Irrevocable Standby Letter of Credit No.
SVB01IS3483, in the amount of $16,478,291.00 (the "LETTER OF CREDIT"), issued by
Silicon Valley Bank (the "LC LENDER"). Landlord shall have the right to draw
down upon the entire amount of the Letter of Credit, and on the Lease
Termination Date the proceeds of such draw shall become the property of
Landlord, and thereafter Tenant shall have no right to any reimbursement of the
proceeds of the Letter of Credit. Tenant shall cooperate with Landlord in order
to allow Landlord to draw upon the Letter of Credit by confirming to the LC
Lender that Landlord has the right to draw on the Letter of Credit, and by
taking any other reasonable actions necessary to facilitate the draw on the
Letter of Credit. Any costs or fees charged by the LC Lender in connection with
the Landlord's draw upon the Letter of Credit shall be paid by Tenant. If
Landlord receives the amount being drawn under the Letter of Credit prior to the
Lease Termination Date, the same shall be held by Landlord pursuant to the terms
of the Lease. If this Agreement is terminated under Section 6.5 below, the
disposition of the Letter of Credit proceeds shall be governed exclusively by
the Lease.
4. NOTE, PARTICIPATION INTEREST, AND DEEDS OF TRUST.
4.1 DELIVERY OF DOCUMENTS. On or before the Lease Termination
Date, Tenant shall deliver to Landlord, through the Escrow Holder, the following
documents.
(i) A properly executed promissory note (the "NOTE"), in
the amount of Twenty One Million Five Hundred Thousand Dollars ($21,500,000.00),
in the form attached hereto as EXHIBIT B.
(ii) The Participation Agreement.
(iii) A deed of trust (the "NOTE DEED OF TRUST") in the
form attached hereto as EXHIBIT C, securing payment of the Note, executed by and
binding on Tenant and properly notarized, which will as of the Lease Termination
Date encumber Tenant's fee title in the "Bayside Project", as defined in Section
4.2. below.
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(iv) A deed of trust (the "PARTICIPATION DEED OF TRUST")
in the form attached to the Participation Agreement, executed by and binding on
Tenant and properly notarized, which will as of the Lease Termination Date
encumber Tenant's fee title in the Bayside Project.
4.2 BAYSIDE PROJECT. Tenant is the fee simple owner of the
property commonly known as Bayside Towers and located at 4000 and ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "BAYSIDE PROJECT"). A legal
description of the Bayside Project is attached to or included in the Note Deed
of Trust.
4.3 RECORDATION OF RECORDABLE DOCUMENTS. On the Lease Termination
Date, the parties shall instruct the Escrow Holder to record the Recordable
Documents, with the Participation Deed of Trust being subject and subordinate to
the Note Deed of Trust, and such Recordable Documents being subject only to the
title exceptions set forth in the proforma title policy attached hereto as
EXHIBIT D (the "PERMITTED TITLE EXCEPTIONS").
5. STOCK GRANT. Concurrently herewith, Tenant and Landlord have entered
into that certain Common Stock Purchase Agreement, and that certain Registration
Rights Agreement (collectively, the "SECURITIES PURCHASE AGREEMENT"), pursuant
to which Tenant shall agree to immediately grant to Landlord Five Million
(5,000,000) shares of Tenant's publicly traded common stock on the terms and
conditions of the Securities Purchase Agreement.
6. TERMINATION CONDITIONS.
6.1 CONDITIONS APPLICABLE. The conditions set forth in this
Section 6 (individually, a "TERMINATION CONDITION" and collectively, the
"TERMINATION CONDITIONS") must be satisfied or waived in order to cause the
occurrence of the Lease Termination Date.
6.2 CONDITIONS BENEFITING LANDLORD. The following Termination
Conditions must be satisfied, or waived by Landlord, in order to cause the
occurrence of the Lease Termination Date:
(i) Landlord must have received the Cash Termination
Payment;
(ii) The LC Lender must have honored Landlord's draw
request and paid the Letter of Credit proceeds to Landlord (the "LC CONDITION");
(iii) Tenant must have executed, acknowledged (where
required) and delivered to Landlord the ▇▇▇▇ of Sale, the Note, the
Participation Agreement, the Note Deed of Trust, the Participation Deed of
Trust, and the Securities Purchase Agreement;
(iv) First American Title Company must be prepared to
issue, subject only to Landlord's payment of the premium(s) therefor, one or
more Lender's title insurance policies insuring (i) in the amount of $21,500,000
that the Note Deed of Trust encumbers Tenant's fee title in the Bayside Project,
subject only to the Permitted Title
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Exceptions, and (ii) in the amount of $2,500,000 that the Participation Deed of
Trust encumbers Tenant's fee title in the Bayside Project upon the terms and
conditions set forth in Exhibit D attached hereto, and subject only to the Note
Deed of Trust and the Permitted Exceptions;
(v) Tenant must have delivered to Landlord the evidence of
corporate authority required under Section 14 below; and
(vi) The representations and warranties of Tenant under
Section 2.3.1 above must be true and correct an all material respects as of the
Lease Termination Date.
6.3 CONDITIONS BENEFITING TENANT. The following Termination
Conditions must be satisfied, or waived by Tenant, in order to cause the
occurrence of the Lease Termination Date:
(i) Landlord and/or EOP, as applicable, must have executed
and delivered to Tenant the Participation Agreement and the Securities Purchase
Agreement;
(ii) The representations and warranties of Landlord and
EOP under Section 2.3.2 above must be true and correct in all material respects
as of the Lease Termination Date.
6.4 WAIVER. Each party may, upon written notice to the other,
waive any Termination Condition which benefits such party.
6.5 THE LC CONDITION. If, despite the commercially reasonable
efforts of Tenant under Section 3.4, above, the LC Condition has not been met on
or before the date which is seven (7) business days after the full execution and
delivery of this Agreement (the "LC DRAW Date"), Landlord shall have the right,
by written notice to Tenant within five (5) business days after the expiration
of the foregoing 7-business day period, to elect either (i) to terminate this
Agreement by written notice to Tenant of such termination, or (ii) to waive the
LC Condition (without waiving Landlord's rights to continue to pursue the draw
of the Letter of Credit, and without releasing Tenant's obligations under
Section 3.4, above) and cause the Lease Termination Date to occur. If this
Agreement is terminated by Landlord as set forth above, the terms of this
Agreement and the Operative Documents likewise shall terminate and be of no
further force or effect, Landlord and EOP shall return to Tenant the Cash
Termination Payment (not including the August Rent Amounts, and provided that
Landlord shall be entitled to retain, in addition to the August Rent Amounts,
the amount of $1,663,855.11, which amount shall be credited against Base Rent
and estimated Operating Costs and Taxes attributable to the month of September,
2002) if the same has been paid, and any other consideration given under the
Operative Documents (including, without limitation, the shares of Tenant's
common stock under the Securities Purchase Agreement), and the parties shall be
released of all further obligations under this Agreement. If the LC Condition
has not been met on or before the LC Draw Date, and if Landlord elects to waive
the LC Condition as provided in item (ii), above, then the Note shall be deemed
automatically increased by $16,478,291.00, and, thereafter, any amounts
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received by Landlord from the LC Lender under the Letter of Credit shall serve
to reduce the principal balance due under the Note.
7. RELEASE.
7.1 TENANT RELEASE. For valuable consideration, and the mutual
covenants and agreements contained herein, Tenant, on behalf of itself, and its
predecessors, guarantors, successors and assigns, fully and forever releases
each of Landlord and EOP, and their respective affiliates, directors, officers,
shareholders, employees, agents, attorneys, investment advisors, portfolio
managers, trustees, ancillary trustees, beneficiaries and their affiliates,
successors and assigns, and their respective partners, shareholders, officers,
directors and employees and all persons acting by, through, under or in concert
with them, or any of them (collectively "LANDLORD RELEASEE"), of and from any
and all manner of action or actions, cause or causes of action, in law or in
equity, suits, debts, liens, contracts, agreements, promises, liability, claims,
demands, damages, losses, costs or expenses of any nature whatsoever, known or
unknown, fixed or contingent, which Tenant has as of the Lease Termination Date
or may thereafter have against Landlord, EOP or any Landlord Releasee, by reason
of, arising out of, based upon or relating to Landlord's and EOP's obligations
under the Lease, but excluding any obligations arising under this Agreement or
the Operative Documents.
7.2 TENANT WAIVERS. Tenant hereby certifies that it has read and
understood the provisions of California Civil Code, Section 1542 and has
consulted or has had the opportunity to consult with its own counsel regarding
same. Tenant hereby waives any and all rights under California Civil Code,
Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Tenant additionally hereby waives any rights under the provisions of California
Civil Code Section 1950.7, without such waiver constituting an admission that
the same would apply in any instance, and Tenant agrees that the terms of such
Section shall have no applicability to any of the payments made by Tenant under
this Agreement.
7.3 LANDLORD'S AND EOP'S RELEASE. For valuable consideration, and
the mutual covenants and agreements contained herein, Landlord and EOP, on
behalf of themselves, and their respective predecessors, successors and assigns,
fully and forever releases Tenant, and its affiliates, directors, officers,
shareholders, employees, agents, attorneys, investment advisors, portfolio
managers, trustees, ancillary trustees, beneficiaries and their affiliates,
successors and assigns, and their respective partners, shareholders, officers,
directors and employees and all persons acting by, through, under or in concert
with them, or any of them (collectively "TENANT RELEASEE"), of and from any and
all manner of action or actions, cause or causes of action, in law or in equity,
suits, debts, liens, contracts, agreements, promises, liability, claims,
demands, damages, losses, costs or expenses of any nature whatsoever, known or
unknown, fixed or
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contingent, which Landlord or EOP has as of the Lease Termination Date or may
hereafter have against Tenant, or any Tenant Releasee, by reason of, arising out
of, based upon or relating to Tenant's obligations under the Lease, but
excluding (i) the continuing Lease obligations reserved under Section 2.2 of
this Agreement and (ii) any obligations arising under this Agreement or the
Operative Documents.
7.4 LANDLORD AND EOP WAIVER. Landlord and EOP each hereby
certifies that it has read and understood the provisions of California Civil
Code, Section 1542 and has consulted or has had the opportunity to consult with
its own counsel regarding same. Landlord and EOP waive any and all rights under
California Civil Code, Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
7.5 CONDITIONS TO RELEASES. The releases set forth in Sections
7.1 and 7.3 above, and the waivers in Sections 7.2 and 7.4 above, are expressly
conditioned upon the satisfaction or waiver of all of the Termination
Conditions. If this Agreement is terminated as provided in Section 6.5 above,
the releases and waivers in this Section 7 shall be null and void as if never
made by Landlord, EOP or Tenant.
8. NATURE OF THIS AGREEMENT. It is expressly understood and agreed by
the parties that this Agreement is intended to accomplish the substitution of
contractual obligations so that, from and after the Lease Termination Date, all
liabilities of the parties under the Lease are extinguished (except as otherwise
expressly provided in Section 2.2 above) and the liabilities created by the
Operative Documents are substituted in place thereof.
9. INVALIDITY. Wherever possible, each provision of this Agreement shall
be interpreted in such a manner as to be valid under applicable law, but, if any
provisions of this Agreement shall be invalid or prohibited thereunder, such
invalidity or prohibition shall be construed as if such invalid or prohibited
provisions had not been inserted herein and shall not affect the remainder of
such provision or the remaining provisions of this Agreement.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. A facsimile copy of this
Agreement is effective as a signed original.
11. ENTIRE AGREEMENT. This Agreement, the ▇▇▇▇ of Sale, the Note, the
Note Deed of Trust, the Participation Agreement, the Participation Deed of
Trust, and the Securities Purchase Agreement (collectively, the "OPERATIVE
DOCUMENTS") constitute and are intended to constitute the entire agreement of
the parties hereto concerning the subject matter hereof. No covenants,
agreements, representations or warranties of any kind whatsoever have been made
by any party
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hereto except as specifically set forth herein. All prior discussions and
negotiations with respect to the subject matter hereof are superseded by this
Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
13. ATTORNEYS' FEES. If any action is brought by either party against
the other party to interpret or enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the other party reasonable
attorneys' fees, costs and expenses incurred in connection with the prosecution
or defense of such action, whether or not the action is prosecuted to a final
judgment. For purposes of this Agreement, the term "attorneys' fees" shall mean
the reasonable fees and expenses of counsel to the parties hereto, which may
include printing, photostatting, duplicating and other expenses, air freight
charges, and fees billed for law clerks, paralegals and other persons not
admitted to the bar but performing services under the supervision of an
attorney.
14. AUTHORITY TO EXECUTE AGREEMENT. Each individual and entity executing
this Agreement hereby represents and warrants that he, she or it has the
capacity set forth on the signature pages hereof with full power and authority
to bind the party on whose behalf he, she or it is executing this Agreement to
the terms hereof. The parties have read and understand this Agreement and have
had the opportunity to consult with counsel with respect hereto. Prior to the
Lease Termination Date, Tenant shall provide (i) a corporate resolution,
properly certified by the secretary of the corporation, specifically authorizing
Tenant's execution of this Agreement and the Operative Documents, and Tenant's
performance in accordance with the terms thereof, are authorized by action of
the corporation's board of directors or its bylaws and (ii) incumbancy
certificates for the officers executing this Agreement and the Operative
Documents.
15. MODIFICATIONS. This Agreement may not be altered, amended, modified
or otherwise changed in any respect whatsoever, except by a writing duly
executed by all of the parties affected by such modification or by their
authorized representatives. Any modification or waiver of any one provision
shall not constitute waiver or modification of any other provision not expressly
waived or modified.
16. FURTHER ASSURANCES. Landlord, EOP and Tenant hereby agree to execute
such further documents or instruments as may be necessary or appropriate to
carry out the intention of this Agreement.
17. NOTICES. All notices, requests, demands, statements, designations,
approvals or other communications (collectively, "NOTICES") given or required to
be given by either party to the other hereunder or by law shall be in writing,
shall be (A) sent by United States certified or registered mail, postage
prepaid, return receipt requested ("MAIL"), (B) transmitted by telecopy, if such
telecopy is promptly followed by a Notice sent by Mail, (C) delivered by a
nationally recognized overnight courier, or (D) delivered personally. Any Notice
shall be sent, transmitted, or delivered, as the case may be, to Tenant at the
addresses set forth below, or to such other place as Tenant may from time to
time designate in a Notice to Landlord, or to Landlord at the
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addresses set forth below, or to such other places as Landlord may from time to
time designate in a Notice to Tenant. If personally delivered, such Notice shall
be effective upon delivery. If Notice is sent by telex or fax transmission or
other form of electronic transmission, such Notice shall be effective upon
transmission (if prior to 6:00 p.m. in the recipient's time zone. If after 6:00
p.m., the Notice shall be effective at 9:00 a.m. on the next business day after
such transmission). If mailed, Notice shall be deemed given on the third day
after it is deposited in the mail in accordance with the foregoing. Any
correctly addressed Notice that is refused, unclaimed or undelivered because of
an act or omission of the party to be notified shall be considered to be
effective as of the first date that the Notice was refused, unclaimed or
considered undeliverable by the postal authorities, messenger, officer of the
law or overnight delivery service. Any Notice to or from Landlord, where
delivered as herein provided, shall be deemed adequate Notice to or from EOP
under this Agreement and all Operatives Documents to which EOP is a party;
similarly any Notice to or from EOP shall be adequate Notice to or from
Landlord; and any Notice by one such party shall bind the other. As of the date
hereof, any Notices must be sent, transmitted, or delivered, as the case may be,
to the following addresses:
Landlord:
c/o EOP Operating Limited Partnership
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies, at the same address, to
Chief Legal Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and with additional copies to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
1901 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tenant:
Inktomi Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
- 10 -
with copies, to the same address and facsimile number, to
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
And with additional copies to:
Crosby, Heafey, ▇▇▇▇▇ & May
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
18. EFFECT OF AGREEMENT. The terms and provisions of this Agreement
shall be binding upon, and inure to the benefit of, each of the parties hereto,
their respective assignors, officers, directors, agents, heirs, related and
affiliated entities, guarantors, assigns and successors in interest of every
kind and nature whatsoever, as well as their representatives and attorneys.
[The rest of this page intentionally left blank]
- 11 -
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
"LANDLORD"
PARKSIDE TOWERS CO-TENANCY,
a tenancy in common
GATEWAY PHOENIX ASSOCIATES, L.P., 5990 ▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.,
a California limited partnership a California limited partnership
By: Cornerstone Holdings, LLC, By: Cornerstone Holdings, LLC, a
a Delaware limited liability Delaware limited liability
company, its general partner company, its general partner
By: EOP Operating Limited By: EOP Operating Limited
Partnership, a Delaware Partnership, a Delaware
limited partnership, its limited partnership, its
sole member sole member
By: Equity Office Properties By: Equity Office Properties
Trust, a Maryland real Trust,a Maryland real
estate investment trust, estate investment trust,
its general partner its general partner
By: /s/ By: /s/
------------------------ -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President - Senior Vice President -
Development Investments Development Investments
"EOP"
EOP OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership,
By: Equity Office Properties Trust,
a Maryland real estate investment trust,
its general partner
By: /s/
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President -
Development Investments
- 12 -
"TENANT"
INKTOMI CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Its: Chief Financial Officer
--------------------------------
- 13 -
EXHIBIT A
▇▇▇▇ OF SALE
For valuable consideration, receipt of which is acknowledged, INKTOMI
CORPORATION, a Delaware corporation, grants, sells, transfers and assigns to
PARKSIDE TOWERS CO-TENANCY, a tenancy in common between GATEWAY PHOENIX
ASSOCIATES, L.P., a California limited partnership, and 5990 ▇▇▇▇▇▇▇▇▇
ASSOCIATES, L.P., a California limited partnership, the two (2) HVAC chiller
units and cooling towers identified in Schedule 1 attached hereto and
incorporated herein by this reference (the "Equipment").
The undersigned warrants that it holds good title to the Equipment and the right
to convey the Equipment. The Equipment is conveyed "as is," "where is," "with
all faults" and without any other warranty or representation, express or
implied, of any nature or sort, including, without limitation, any warranty of
merchantability, fitness of use for a particular purpose, or otherwise.
Dated: September 5, 2002
INKTOMI CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Its: Chief Financial Officer
-------------------------------------
SCHEDULE 1 TO EXHIBIT A
DESCRIPTION OF THE EQUIPMENT
1. 550-ton York centrifugal chiller and cooling tower.
2. 400-ton York centrifugal chiller and cooling tower.
EXHIBIT B
PROMISSORY NOTE
NOTE SECURED BY FIRST LIEN DEED OF TRUST
$21,500,000.00 Foster City, California Dated: September 5, 2002
FOR VALUE RECEIVED, the undersigned INKTOMI CORPORATION, a Delaware
corporation ("Maker"), agrees and promises to pay to the order of PARKSIDE
TOWERS CO-TENANCY, a tenancy-in-common between GATEWAY PHOENIX ASSOCIATES, L.P.,
a California limited partnership, and 5990 ▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P., a
California limited partnership (collectively, "Lender"), at such place or places
as the Lender or other holder hereof may from time to time designate in writing,
the principal sum of Twenty One Million Five Hundred Thousand Dollars
($21,500,000.00). Maker agrees that such principal sum may be increased by
$16,478,291.00, to a total initial principal balance of $37,978,291.00, pursuant
to the terms of Section 6.5 of that certain "Lease Termination Agreement" among
Holder, Maker, and EOP Operating Limited Partnership ("EOP"), dated of even date
herewith. Holder hereby agrees that the principal balance of this Note may be
reduced by up to $1,125,000.00 (the "In Lieu Deposit Amount") in the event of a
default by EOP or its assignee under that certain "Put Purchase Agreement" as
defined in that certain "Participation Agreement" among Holder, Maker and EOP,
and dated of even date herewith, if the "Buyer", as defined in the Put Purchase
Agreement elects not to pay the Deposit. Additionally, in the event such
reduction of the principal balance by the In Lieu Deposit Amount occurs, no
interest shall be deemed to have accrued on such In Lieu Deposit Amount for the
period between the "Agreement Date", as defined in the Put Purchase Agreement,
and the date of such reduction.
Five Million Dollars ($5,000,000.00) of the principal balance hereunder
shall be paid to Lender on or before October 1, 2002 (the "Initial Principal
Payment"). A final installment covering the entire remaining principal balance
and interest accrued thereon shall be due and payable on the date (the "Maturity
Date") which is the earlier of (i) January 21, 2003 (provided that if Maker
exercises the "Put Option", as provided in the Participation Agreement, such
Maturity Date shall be extended to be the date of the Closing of the sale under
the Put Purchase Agreement, or the date of termination of the Put Purchase
Agreement, subject to the possible further extension of the Maturity Date to
June 30, 2003, pursuant to Section 4.5 of the Participation Agreement), and (ii)
the date a "Liquidity Event", as that term is defined in the Participation
Agreement, occurs.
If Maker timely makes the Initial Principal Payment, no interest shall
be deemed to have accrued on such amount, and no interest shall commence to
accrue upon the remaining outstanding principal balance of this Note until
January 1, 2003, at which time interest shall commence to accrue on the
outstanding principal balance hereof from time to time remaining unpaid until
maturity at the rate of six percent (6.00%) per annum (the "Interest Rate").. If
Maker fails to make the Initial Principal Payment as set forth herein, the total
principal balance of this Note, including the Initial Principal Payment shall be
deemed to have retroactively accrued interest from the date of this Note, and
shall continue to accrue interest until paid, at the
"Default Rate", defined below, and the entire outstanding principal balance
hereof shall, at the election of the Lender or other holder hereof, become
immediately due and payable. Notwithstanding the foregoing, with respect to the
payment of the Initial Principal Payment only, Lender shall not accelerate the
entire outstanding principal balance of this Note unless and until Maker has
failed to cure such delinquency by October 8, 2002.
Maker shall pay accrued interest under this Note, at the Interest Rate
or Default Rate as the case may be, in arrears, on or before the first of each
month commencing after the date interest begins to accrue hereon. Each payment
shall be made by wire transfer payable to Lender and sent to the following
account:
Bank of America
Dallas, TX
Bank ABA Number: ▇▇▇▇▇▇▇▇▇
Account Name: EOP Operating Limited Partnership
Account Number: 3750783137
The principal evidenced hereby may be prepaid in whole or in part at any
time without penalty or premium.
All sums due under this Note and that certain First Lien Leasehold and
Fee Deed of Trust With Assignment of Rents and Fixture Filing (the "Deed of
Trust") securing same are payable at the place or places as above stated in
legal tender of the United States of America current on the dates such sums or
payments are respectively due. Any remittances by check or draft shall be
credited on the date of receipt subject to the condition that such check or
draft may be handled for collection in accordance with the practice of the
collecting bank or banks and any receipt issued therefor shall be void unless
the amount due is actually received by the Lender or other holder hereof.
If any installment payment herein provided for, or any part thereof, is
not paid when due, each and every such defaulted installment, or part thereof,
shall bear simple interest at rate (the "Default Rate") which is the lesser of
(i) of ten percent (10%) per annum in excess of the then current interest rate
of this Note, and (ii) the maximum rate permitted by applicable law, from its
due date until date of payment.
During the existence of any default or delinquency under the terms of
this Note or under the terms of the Deed of Trust or other instruments given as
a security for and which secure this Note, the Lender or other holder hereof is
hereby expressly authorized to apply all payments made on this Note to the
payment of such part of any delinquency as it may elect.
If default be made in the payment of the whole or any part of any of the
several installments of this Note when due, then, or at any time thereafter
during the continuance of any such default, the entire unpaid principal balance
of this Note together with any interest accrued thereon, shall, at the election
of the Lender or other holder hereof, and without notice of such election and
without demand or presentment, become immediately due and payable at the place
of payment aforesaid, and the principal balance together with any interest
accrued thereon, so accelerated and declared due as aforesaid, shall thereafter
bear simple interest at the Default Rate until paid.
If any default be made as hereinabove set forth, the failure of the
Lender or other holder hereof promptly to exercise its right to declare the
indebtedness remaining unpaid hereunder to be immediately due and payable or the
acceptance of one or more installments from any person thereafter, shall not
constitute a waiver of such right while any default continues nor a waiver of
such right in connection with any future default.
The Deed of Trust of even date herewith which secures the obligations of
this Note contains provisions which restrict the right to transfer or further
encumber the property described in said Deed of Trust.
Maker hereby waives diligence, demand, presentment for payment, and
notice of whatever kind or nature. Without discharging or in any way affecting
the liability of the undersigned, the undersigned hereby consents to any and all
extensions of this Note as Lender may in its sole discretion grant from time to
time, to the release of all or any part of the security for the payment hereof
and to the release of any party liable for repayment of the obligations
hereunder. If more than one person or entity is executing this Note then all of
the obligations herein contained shall be considered the joint and several
obligations of each of the undersigned.
This Note shall be governed by the laws of the State of California,
except to the extent that Federal laws may preempt the laws of the State of
California.
In the event that this Note is placed in the hands of an attorney at law
for collection after maturity or upon default or in the event that proceedings
at law or in equity are instituted in connection herewith, or in the event that
this Note is placed in the hands of an attorney at law to enforce any of the
rights or the agreements contained herein, Maker shall pay all costs of
collecting or attempting to collect this Note or protecting or enforcing such
rights, including, without limitation, reasonable attorneys' fees.
This Note is subject to the limitation that in no event shall interest
or any other amount paid or agreed to be paid to Lender for the use, forbearance
or detention of money to be advanced hereunder exceed the highest lawful rate
permissible under applicable usury laws. If fulfillment of any provision hereof
shall be deemed by a court of competent and final jurisdiction to violate any
applicable usury restrictions then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity, and any amount received in
excess of such limit shall be applied to reduce the unpaid principal balance
hereof and not to the payment of interest.
"MAKER"
INKTOMI CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Its: Chief Financial Officer
---------------------------------------
EXHIBIT C
NOTE DEED OF TRUST
EXHIBIT 10.43
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
ALLEN, MATKINS, ▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇
1901 Avenue of the Stars
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
--------------------------------------------------------------------------------
(Above Space For Recorder's Use Only)
FIRST LIEN DEED OF TRUST WITH
ASSIGNMENT OF RENTS AND FIXTURE FILING
THIS FIRST LIEN DEED OF TRUST ("Deed of Trust") is made as of September
5, 2002, by Inktomi Corporation, a Delaware corporation ("Trustor"), whose
address is ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, in favor of First
American Title Insurance ("Trustee"), whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and PARKSIDE TOWERS CO-TENANCY, a tenancy
in common between GATEWAY PHOENIX ASSOCIATES, L.P., a California limited
partnership, and 5990 ▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P., a California limited
partnership ("Beneficiary"), whose address is set forth in Paragraph 7.14 below.
▇.
▇▇▇▇▇ IN TRUST
1.01 Trustor irrevocably grants, conveys, transfers and assigns to
Trustee, in trust, with power of sale and right of entry and possession, all
right, title and interest which Trustor now has or may hereafter acquire in and
to that certain real property (the "Subject Property") located at 4000 and ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as more particularly described on Exhibit
"A" attached hereto and incorporated herein by reference, together with all
easements and other rights now or hereafter located thereon or appurtenant
thereto, all buildings situated on the Subject Property, together with all
appurtenances and all other existing or subsequently erected improvements in,
under or upon the Subject Property, all development rights or credits and air
rights, all fixtures, all additions and accretions thereto, and any greater
estate in the Subject Property or any part thereof now owned or hereafter
acquired by Trustor. Trustor makes the foregoing grant to Trustee to hold the
Subject Property in trust for the benefit of Beneficiary, and for the purpose
and upon the terms and conditions hereinafter set forth.
II.
ASSIGNMENT OF RENTS
2.01 Trustor absolutely and irrevocably assigns to Beneficiary the
rents, issues, deposits and profits of the Subject Property, together with the
immediate and continuing right to collect and receive the same, for the purposes
and upon the terms and conditions hereinafter set
-1-
forth. The foregoing assignment shall not impose upon Beneficiary any duty to
produce rents from the Subject Property, and said assignment shall not cause
Beneficiary to be a "mortgagee in possession" for any purpose.
III.
FIXTURE FILING
3.01 This Deed of Trust encumbers, and Trustor hereby grants Beneficiary
a security interest in, all personal property of any kind whatsoever, which is
now or becomes a "fixture" and which is used or will be used in construction of,
or is or will be placed upon or is derived from or used in any connection with
the use, occupancy or enjoyment of, the Subject Property. "Fixtures" shall
include all articles of personal property, furniture and furnishings which are
so related to the Subject Property such that an interest arises in them under
the real estate laws of the State of California. To the extent of the existence
of personal property encumbered by the Deed of Trust, this Deed of Trust
constitutes a security agreement and is intended to create a security interest
in such personal property in favor of Beneficiary and to constitute a "fixture
filing" in accordance with the provisions of Section 9313 of the Uniform
Commercial Code in effect in the State of California. This Deed of Trust shall
be self-operative with respect to such personal property, but Trustor agrees to
execute and deliver on demand such security agreements, financing statements and
other instruments as Beneficiary may request in order to impose the lien hereof
more specifically upon any of such property.
IV.
OBLIGATIONS SECURED
Trustor makes the foregoing grant and assignment for the purpose of
securing the following obligations which Trustor covenants to pay and perform
promptly in accordance with their terms:
4.01 Payment to Beneficiary of all indebtedness evidenced by and arising
under that certain Note Secured by First Lien Deed of Trust (the "Note"), dated
as of the date hereof, payable to Beneficiary or its order, in the principal
amount of Twenty One Million Five Hundred Thousand Dollars ($21,500,000.00)
(which principal amount may be increased by $16,478,291.00 to a total of
$37,978,291.00 pursuant to the terms of the Note), which Note is incorporated
herein by this reference, together with interest thereon, and any modifications,
extensions or renewals thereof (including, but without limitation (i)
modifications of the required principal and/or interest payment dates, deferring
or accelerating said payment dates in whole or in part, and/or (ii)
modifications, extensions or renewals at a different rate of interest), whether
or not any such modification, extension or renewal is evidenced by a new or
additional promissory note or notes;
4.02 Payment to Beneficiary of all indebtedness or such further sums
and/or performance of such further obligations as Trustor may undertake to pay
and/or perform (whether as principal, surety or guarantor) for the benefit of
Beneficiary, its successors or
-2-
assigns, when said borrowings and/or obligations are evidenced by a writing or
writings reciting that they are so secured; and
4.03 Performance of each agreement of Trustor herein contained or
contained in the Note, and the payment of each fee, cost and expense by Trustor
as herein set forth.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE PARTIES AGREE AS
FOLLOWS:
V.
RIGHTS AND DUTIES OF THE PARTIES.
5.01 Warranties by Trustor. Trustor is a corporation duly organized and
existing under the laws of the State of Delaware and qualified to do business in
the State of California. Trustor warrants that Trustor is the lawful owner of
the Subject Property in fee simple, without limitation on its right to encumber.
5.02 Taxes and Assessments. Trustor shall pay or cause to be paid prior
to delinquency all real property taxes, assessments, levies and charges imposed
by any public or quasi-public authority or utility company which are or may
become a lien upon the Subject Property, any part thereof or interest therein.
Trustor shall also pay when due all real property taxes, assessments, levies and
charges imposed by any public authority upon Beneficiary by reason of its
interest in the Subject Property created hereby; provided, however, that Trustor
shall have no obligation to pay or discharge taxes which may be imposed from
time to time upon Beneficiary and which are measured by and imposed upon
Beneficiary's net income. Upon written request of Beneficiary, Trustor shall
provide Beneficiary with evidence of such payment. Trustor shall have the right
to contest in good faith any such real property taxes, assessments, levies or
charges provided that it does so diligently and without prejudice to
Beneficiary.
As used herein, the term "real property taxes" shall include any form of
assessment, possessory interest tax, license fee, license tax, business license
fee, business license tax, commercial rental tax, levy, charge, penalty, tax or
similar imposition imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement or special assessment
district thereof, as against any legal or equitable interest of Trustor in the
Subject Property, including, but not limited to, the following:
(a) Any assessment, tax, fee, levy or charge in substitution, partially
or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real property tax. It is the intention
of Trustor and Beneficiary that all such new and increased assessments,
taxes, fees, levies and charges and all similar assessments, taxes,
fees, levies and charges be included within the definition of real
property taxes for the purposes of this Deed of Trust;
(b) Any assessment, tax, fee, levy or charge allocable to the operation
of or measured by the area of the Subject Property, including, without
limitation, any gross income tax or excise tax levied in lieu of real
property taxes by the state, city or federal government, or any
political subdivision thereof, with respect to the
-3-
possession, leasing, operating, management, maintenance, alteration,
repair, use or occupancy of the Subject Property, or any portion
thereof; and
(c) Any assessment, tax, fee, levy or charge upon this transaction or
any document creating or transferring any interest or an estate in the
Subject Property.
5.03 Impounds for Insurance Premiums and Taxes. After the occurrence of
an Event of Default, at Beneficiary's option, Trustor shall pay to Beneficiary
monthly, on or before the fifth (5th) date of each month, 1/12 of such amount as
Beneficiary from time to time estimates will be required to pay all taxes
required to be paid by Paragraph 5.02 and insurance premiums for insurance
required by Paragraph 5.04. Beneficiary's estimates shall be based on the
amounts actually payable or, if unknown, on the amounts actually paid for the
year preceding that for which such payments are being made. Any deficiencies
shall be promptly paid by Trustor to Beneficiary on demand. Trustor shall
transmit bills for the taxes and insurance premiums as soon as received. When
Beneficiary has received from Trustor or on its account funds sufficient to pay
the same, Beneficiary shall pay such bills. If the amount paid by Trustor in any
year exceeds the aggregate required, such excess shall be applied to impound
payments for the succeeding year. Beneficiary shall not be a trustee of funds in
said account and may commingle such funds with its general assets without any
obligation to pay interest thereon or account for any earnings, income or
interest on such funds.
5.04 Insurance. Trustor shall at all times provide, maintain and keep in
force (i) commercial general public liability in the amount of at least
$5,000,000.00 and property damage coverage with a broad form coverage
endorsement and also breach of warranty coverage; (ii) protection against fire,
"extended coverage" and other "all risk" perils, including earthquake, and, if
the improvements are located in a flood hazard area, flood insurance on the
improvements, all in an amount equal to the full replacement value of all real
and personal property and improvements as determined by Beneficiary; (iii) rent
loss insurance in the amount of gross pro forma income for twelve (12) months;
(iv) insurance against loss or damage from leakage of sprinkler systems, air
conditioning equipment or other equipment now or hereafter installed in or on
the Subject Property; (v) during the course of any construction of or repairs to
the improvements or personal property, builders course of construction and
completed value insuring each name insured against "all risks of physical loss"
and worker's compensation insurance and any other employee benefit insurance
required by law, for all employees of Trustor engaged on or with respect to the
Subject Property in such amount as is reasonably satisfactory to Beneficiary, or
if such limits are established by law, in such amounts; and (vi) such other
insurance as Beneficiary may reasonably require insuring against loss which at
the time is commonly insured against and generally available at commercially
reasonable rates in the case of premises similarly situated, with due regard
being given to the height and type of improvements, the personal property and
the location, construction, use and occupancy thereof.
5.05 Terms of Insurance. All policies of insurance required by the terms
of this Deed of Trust, or otherwise carried by Trustor and applicable to the
Property (except the employee benefit and public liability insurance which shall
name Beneficiary as an additional insured) shall contain a lender's loss payable
endorsement for the benefit of Beneficiary, which shall provide that (i) all
insurance proceeds shall be paid to Beneficiary and Beneficiary shall be
authorized and empowered by Trustor to settle, adjust or compromise any claims
for loss, damage or destruction under such policies of insurance, (ii) any loss
covered by such insurance
-4-
shall be payable by the insurer in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor, its agents or employees, the
named insured, or any owner, tenant, or occupant of the Subject Property which
might otherwise result in forfeiture of said insurance, (iii) the insurer waives
all rights of setoff, counterclaim or deduction against Trustor, and (iv) should
legal title to and beneficial ownership of the Subject Property become vested in
Beneficiary, the insurance provided by such policies shall continue for the term
thereof for the benefit of Beneficiary. All required insurance shall provide (i)
a waiver of subrogation endorsement in a form satisfactory to Beneficiary; (ii)
the insurance afforded all parties named as insured shall be primary insurance
and shall not participate with, nor be in excess over, any other valid and
collectible insurance available to Beneficiary; (iii) any other insurance
obtained by any named insured shall not be called upon to contribute until the
limits of the policies required hereunder are exhausted; (iv) the insurance
required hereunder cannot be cancelled or materially amended or altered without
at least thirty (30) days prior written notice to Beneficiary; and (v) the
insurer shall notify Beneficiary, within thirty (30) days prior to the
expiration of any policy, of Trustor's failure to renew such policy; and (vi)
with respect to the fire and "extended coverage" insurance, a replacement cost
endorsement, an agreed amount endorsement, and an inflation guard endorsement,
all in a form satisfactory to Beneficiary. All insurance required hereunder
shall be issued by companies approved in advance by Beneficiary and rated at
least A-VIII by a current Best's Insurance Guide, and such insurance shall be in
the form and on terms (including but not limited to deductibles, self-insured
retentions, or similar provisions) reasonably approved in advance by
Beneficiary.
5.06 Delivery of Policies, Payment of Premiums. Trustor shall furnish
Beneficiary with a certificate of insurance evidencing the insurance required
hereunder and naming Beneficiary as additional insured. If Trustor elects to
provide any of the required insurance through blanket policies carried by
Trustor and covering more than one location, then Trustor shall furnish
Beneficiary with a certificate of insurance for each such policy setting forth
the coverage, the limits of liability, the aggregate amount of all claims paid
under said policy, the nature of the carrier, the policy number, and the
expiration date. At least thirty (30) days prior to the expiration of each
required insurance policy (without regard to any grace period for nonpayment of
premium), Trustor shall furnish Beneficiary with evidence satisfactory to
Beneficiary of the payment of the premium and the reissuance of a policy
continuing in force without lapse or reduction in coverage.
5.07 Insurance Proceeds. Trustor hereby agrees that after the happening
of any casualty to the Subject Property or any part thereof, Trustor shall give
prompt written notice thereof to Beneficiary.
(a) Trustor hereby assigns its interest in all insurance proceeds to
Beneficiary and authorizes and directs any affected insurance company to
make payment of such proceeds directly to Beneficiary. Trustor shall
obtain Beneficiary's approval, which approval shall not be unreasonably
withheld or delayed, prior to any settlement, adjustment or compromise
of any claims for loss, damage or destruction under any policy or
policies of insurance, and Beneficiary shall have the right to
participate with Trustor in negotiation of any such settlement,
adjustment or compromise. Beneficiary shall also have the right to
appear with Trustor in any action against an insurer based on a claim
for loss, damage or destruction under any policy or policies of
insurance.
-5-
(b) All compensation, awards, proceeds, damages, claims, insurance
recoveries, rights of action and payments which Trustor may receive or
to which Trustor may become entitled with respect to the Subject
Property or any part thereof (herein the "Proceeds") shall be paid over
to the Beneficiary. In the event such loss or damage is less than Fifty
Thousand Dollars ($50,000.00) the Proceeds will be paid to Trustor by
Beneficiary and Trustor agrees to promptly thereafter repair and/or
replace such damage or loss. In the event of a loss greater than Fifty
Thousand Dollars ($50,000.00) ("Major Damage"), Beneficiary shall apply
the Proceeds to the repair, replacement or restoration of the Subject
Property in which event Beneficiary shall disburse the Proceeds in
accordance with the procedures set forth in subparagraph (c) below. If
there are any Proceeds in excess of the amount necessary to repay the
Note and all other amounts secured hereby then such excess Proceeds
shall be paid to Trustor.
(c) Beneficiary shall disburse Proceeds to Trustor in connection with
Major Damage, upon the satisfaction of the following conditions
("Disbursement Conditions"):
(i) Proceeds have been deposited with the Beneficiary;
(ii) Beneficiary shall have been furnished with a reasonable
estimate of the cost of restoration accompanied by a certificate
from a party acceptable to Beneficiary as to such costs and
appropriate final plans and specifications for reconstruction of
the improvements, if necessary, all of which shall be approved
by Beneficiary;
(iii) the improvements so restored or rebuilt shall be of
substantially the same character and value as prior to the
damage or destruction and appropriate for the purposes for which
they were originally erected;
(iv) Trustor shall have furnished Beneficiary with evidence
satisfactory to Beneficiary that all improvements so restored
and/or reconstructed and their use shall fully comply with all
zoning, building and use laws, ordinances and regulations;
(v) If the estimated cost of restoration exceeds the Proceeds
available, Trustor shall have furnished a satisfactory bond of
completion or deposited with Beneficiary such sums as may be
necessary to pay such excess costs;
(vi) Beneficiary shall have received notice within thirty (30)
days after the fire or other hazard or of the condemnation
proceedings specifying the date of such fire or other hazard or
the date the notice of condemnation proceedings was received;
(vii) Trustor shall not then be in default under the Note or
this Deed of Trust,
then the Proceeds, less the actual costs, fees and expenses, if any, incurred in
connection with adjustment of loss and Beneficiary's administrative expenses
relating to the disbursement of the Proceeds shall be applied by Beneficiary to
the payment of all the costs of the aforesaid
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restoration, repairs, replacement, rebuilding or alterations, (all of which are
hereinafter collectively referred to as the "Restoration"), and shall be paid
out by Beneficiary from time to time as such Restoration progresses upon the
written request of Trustor accompanied by the following:
A certificate of an architect licensed in the State of
California acceptable to Beneficiary, dated not more than thirty
(30) days prior to such request, setting forth the following:
(A) That the sum then requested either has been paid, or
is justly due to contractors, subcontractors,
materialmen, engineers, architects or other persons who
have rendered services or furnished materials for the
restoration therein specified or have paid for the same,
the names and addresses of such persons, a brief
description of such services and materials, the several
amounts so paid or due to each of said persons in
respect thereof, that no part of such expenditures has
been or is being made on the basis of any previous or
then pending request for the withdrawal of Proceeds or
has been made out of any of the Proceeds received by
Trustor, and that the sum then requested does not exceed
the value of the services and materials described in the
certificate.
(B) That, except for the amount, if any, stated
(pursuant to the foregoing subclause (A)) in such
certificate to be due for services or materials, there
is no outstanding indebtedness known to the person
signing such certification, after due inquiry, which is
then due for labor, wages, materials, supplies or
services in connection with such restoration.
(C) That the costs, as estimated by the person signing
such certificate, of the Restoration required to be done
subsequent to the date of such certificate in order to
complete and pay for the same, do not exceed the
Proceeds, plus any amount or security approved by
Beneficiary and deposited by Trustor to defray such
costs and remaining in the hands of the Beneficiary
after payment of the sum requested in such certificate.
Upon compliance with the foregoing provisions, Beneficiary
shall, out of Proceeds (and the amount of security approved by
Beneficiary, if any, deposited by Trustor to defray the costs of
the Restoration), pay or cause to be paid to Trustor or the
persons named (pursuant to Subclause (A) above) in such
certificate the respective amounts (subject to subparagraph (e)
below) stated therein to have been paid by Trustor or to be due
to them, as the case may be.
(d) If the Proceeds at the time held by the Beneficiary, less the actual
costs, fees and expenses, if any, incurred in connection with the
adjustment of the loss and the Beneficiary's administrative expenses
relating to such loss and the disbursement of the Proceeds, shall be, in
Beneficiary's reasonable judgment insufficient to pay the entire cost of
the Restoration, Trustor shall deposit with the Beneficiary any such
deficiency prior to disbursement of any additional portion of the
Proceeds.
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(e) No payment made prior to the final completion of the Restoration
shall exceed ninety percent (90%) of the value of the work performed
from time to time, and at all times the undisbursed balance of said
Proceeds remaining in the hands of the Beneficiary shall be at least
sufficient to pay for the cost of completion of the Restoration free and
clear of liens.
(f) Final payment shall be upon an architect's certificate of completion
in accordance with the final plans and specifications and compliance
with all zoning, building, subdivision and other governmental laws,
ordinances, rules, and regulations, and the filing of a Notice of
Completion and the receipt of Beneficiary of final lien releases for
such work or the expiration of the period provided under California law
for the filing of mechanic's and materialmen's liens. Beneficiary may at
its option require an Endorsement to its title insurance policy insuring
the continued priority of the lien of this Deed of Trust as to all sums
advanced hereunder. The cost of such endorsement will be paid by
Trustor.
(g) In the event of a "Condemnation" (as defined below), upon completion
of the Restoration in a good and workmanlike manner in accordance
herewith, and provided that Beneficiary has received satisfactory
evidence that the Restoration has been paid for in full and the Subject
Property is free and clear of all liens related to or in connection with
the Restoration, any balance of the Proceeds at the time held by the
Beneficiary (after reimbursement to Beneficiary of all costs and
expenses of the Beneficiary, including administrative expenses, in
connection with recovery of the same and disbursement of such Proceeds
for the Restoration), if any, shall be applied as follows: (i) to the
extent that such balance of the Proceeds is equal to or less than the
amount, if any, by which the value of the Subject Property prior to such
damage or destruction exceeds the value of the Subject Property after
such Restoration (for these purposes, the value of the Subject Property
shall be determined by Beneficiary in its discretion), then the portion
of the balance of the Proceeds equal to such excess amount shall be
applied to the payment or prepayment of the principal balance of the
indebtedness outstanding under the Note in such order as Beneficiary may
determine, and any amounts so applied shall reduce the indebtedness
secured hereby pro tanto; and (ii) to the extent that the balance of the
Proceeds exceeds such excess amount, such excess portion of the balance
of the Proceeds shall, at Beneficiary's option, be applied so as to
reduce the indebtedness secured hereby or be paid to Trustor.
(h) Subject to Beneficiary releasing all available proceeds in
accordance with the provisions of this Deed of Trust, nothing herein
contained shall be deemed to excuse Trustor from repairing or
maintaining the Subject Property as provided herein or restoring all
damage or destruction to the Subject Property, regardless of whether or
not there are insurance proceeds available or whether any such proceeds
are sufficient in amount, and the application or release by the
Beneficiary of any insurance proceeds shall not cure or waive any Event
of Default, as hereinafter defined, or notice of default under this Deed
of Trust or invalidate any other act done by Beneficiary to exercise its
remedies hereunder.
5.08 Condemnation. Should all or any part of the Subject Property or any
interest therein be taken or damaged by reason of any public improvement, by the
exercise of the power of eminent domain (whether by legal proceedings or
otherwise) by any person or entity having the legal power to do so, by a
voluntary sale or transfer either under threat of condemnation or while legal
proceedings for condemnation are pending, by inverse condemnation, or in any
other
-8-
similar manner (collectively a "Condemnation"), or should Trustor receive any
notice or other information regarding a Condemnation (whether threatened or
pending), Trustor shall give prompt written notice thereof to Beneficiary. In
the event of a Condemnation:
(a) Beneficiary shall be entitled to, and is hereby assigned, all
compensation, awards, damages, proceeds, or other payments or relief
resulting therefrom (the "Condemnation Proceeds") to the extent of the
principal balance of the indebtedness secured hereby together with any
unpaid accrued interest thereon and other amounts due under the Note or
this Deed of Trust. Beneficiary shall also be entitled at its option to
appear in, and prosecute in its own name any Condemnation action or
proceedings, and to make any reasonable compromise or settlement thereof
taking into account Trustor's interest in the Subject Property. Trustor
agrees to execute such further assignments of the Condemnation Proceeds
as Beneficiary or Trustee may require. Whether or not Beneficiary
appears in or prosecutes in its own name any such action or proceeding,
Trustor shall be responsible for representing, at its sole cost, its own
interest therein. Trustor hereby specifically, unconditionally, and
irrevocably waives all rights of a property owner under the provisions
of Section 1265.225(a) of the California Code of Civil Procedure or any
successor statute, providing for the allocation of Condemnation Proceeds
between a property owner and a lienholder.
(b) Beneficiary shall have the option to apply all such Condemnation
Proceeds, after deducting therefrom all costs and expenses incurred by
it in connection with obtaining such Condemnation Proceeds, in the same
manner and with the same effect provided for in paragraph 5.07 regarding
the disposition of insurance proceeds. 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.
5.09 Hazardous Materials Compliance, Notices, Inspections and
Indemnification. Trustor shall, and Trustor shall cause all tenants, employees,
agents, contractors and subcontractors of Trustor and any other persons present
on or occupying the Subject Property to, keep and maintain the Subject Property,
including the soil and ground water thereof, in compliance with, and not cause
or permit the Subject Property, including the soil and ground water thereof, to
be in violation of any federal, state or local laws, ordinances or regulations
relating to industrial hygiene or to the environmental conditions thereon
(including but not limited to any "Hazardous Materials Laws" as hereinafter
defined). Except in compliance with all applicable Hazardous Materials Laws,
neither Trustor nor employees, agents, contractors and subcontractors of Trustor
or any other persons occupying or present (including tenants) on the Subject
Property shall use, generate, manufacture, store or dispose of on, under or
about the Subject Property or transport to or from the Subject Property any
flammable explosives, radioactive materials, hazardous wastes, toxic substances
or related materials, including, without limitation, any substances defined as
or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," or "toxic substances" under any Hazardous Materials Laws
(collectively referred to hereinafter as "Hazardous Materials"), except for
ordinary and customary materials used in the normal course of construction,
maintenance or use of the Property, so long a such materials are used and/or
stored in compliance with Hazardous Materials Laws.
-9-
Trustor shall immediately advise Beneficiary in writing of: (i) any
notices (whether such notices are received from the Environmental Protection
Agency, the Occupational Safety and Health Agency, the Department of Health
Services, the State Water Quality Control Board, the Department of Sanitation,
the Department of Public Works or any other federal, state or local governmental
agency or regional office thereof) of violation or potential violation which are
received by Trustor of any applicable federal, state or local laws, ordinances,
or regulations relating to any Hazardous Materials including but not limited to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Hazardous Materials Transportation Act, the Resource
Conservation and Recovery Act, the Hazardous Substances Account Act, the
Hazardous Substances Act, the Occupational Health and Safety Act, the
▇▇▇▇▇▇-Cologne Water Quality Control Act, the Solid Waste Management Act of
1980, the Toxic Pit Cleanup Act, the Underground Tank Act of 1984, and the
California Water Quality Improvement Act (collectively, "Hazardous Materials
Laws"); (ii) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened pursuant to any Hazardous
Materials Laws; (iii) all claims made or threatened in writing by any third
party against Trustor or the Subject Property relating to damage, contribution,
cost recovery compensation, loss or injury resulting from any Hazardous
Materials (the matters set forth in clauses (i), (ii) and (iii) above are
hereinafter referred to as "Hazardous Materials Claims"); and (iv) Trustor's
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of the Subject Property that could cause the Subject Property or
any part thereof to be classified as "border-zone property" under the provisions
of California Health and Safety Code, Sections 25220 et seq. or any regulation
adopted in accordance therewith, or to be otherwise subject to any restrictions
on the ownership, occupancy, transferability or use of the Subject Property
under any Hazardous Materials Laws.
Trustor shall be solely responsible for, and shall indemnify and hold
harmless Beneficiary, its directors, officers, employees, agents, successors and
assigns from and against, any loss, damage, cost, expense or liability directly
or indirectly arising out of or attributable to the use, generation, storage,
release, threatened release, discharge, disposal, or presence (whether prior to
or during the term of the loan secured by this Deed Trust) of Hazardous
Materials on, under or about the Property (whether by Borrower or a predecessor
in title or any employees, agents, contractors or subcontractors of Borrower or
any predecessor in title or any third persons at any time occupying or present,
including tenants, on the Subject Property), including, without limitation: (a)
all foreseeable and unforeseeable consequential damage, including third party
claims; (b) the costs of any required or necessary repair, cleanup or
detoxification of the Subject Property, including the soil and ground water
thereof, and the preparation and implementation of any closure, remedial or
other required plans; (c) damages to any natural resources; and (d) all
reasonable costs and expenses incurred by Beneficiary in connection with clauses
(a), (b) and (c), including but not limited to reasonable attorneys' and
consultants' fees.
Any costs or expenses incurred by Beneficiary for which Trustor is
responsible or for which Trustor has indemnified Beneficiary shall be paid to
Beneficiary on demand, and failing prompt reimbursement, shall be added to the
indebtedness secured by this Deed of Trust and earn interest at the Default Rate
set forth in the Note until paid in full.
-10-
Trustor shall take any and all remedial action necessary in response to
the presence of any Hazardous Materials on, under, or about the Subject
Property, provided that in such event Trustor shall notify Beneficiary as soon
as practicable of any action so taken.
If Beneficiary has reasonable cause (based on written notice) to believe
that a release, or the threat of a release, of any Hazardous Materials exists or
if an Event of Default has occurred and remains uncured, then upon Beneficiary's
request, Trustor shall retain, at Trustor's sole cost and expense, a licensed
geologist, industrial hygienist or an environmental consultant (referred to
hereinafter as the "Consultant") acceptable to Beneficiary to conduct a baseline
investigation of the Property for the presence of Hazardous Materials
("Environmental Audit"). The Environmental Audit shall be performed in a manner
reasonably calculated to discover the presence of Hazardous Materials
contamination; provided, however, such investigation shall be of a scope and
intensity no greater than a baseline investigation conducted in accordance with
the general standards of persons providing such services taking into
consideration the known uses of the Subject Property and property in the
vicinity of the Subject Property and any factors unique to the Subject Property.
The Consultant shall concurrently deliver the results of its investigation in
writing directly to Trustor and Beneficiary without prior consultation with
either party unless conducted in the presence of the other party. Such results
shall be kept confidential by both Trustor and Beneficiary unless legally
compelled or required to disclose such results or disclosure is reasonably
required in order to pursue rights or remedies provided herein or at law.
If Trustor fails to pay for or obtain an Environmental Audit as provided
for herein, Beneficiary may, but shall not be obligated to, obtain the
Environmental Audit, and either demand reimbursement from Trustor or add the
cost thereof to the indebtedness secured by this Deed of Trust, in which case
interest shall accrue on such sum at the Default Rate from the date of demand.
Trustor covenants to reasonably cooperate with the Consultant and to
allow entry and reasonable access to all portions of the Subject Property for
the purpose of Consultant's investigation. Trustor covenants to comply, at its
sole cost and expense, with all recommendations contained in the Environmental
Audit, including any recommendation for additional testing and studies to detect
the presence of Hazardous Materials, if Beneficiary requires the implementation
of the same.
5.10 Liens and Encumbrances. Trustor shall pay or cause to be paid at or
prior to maturity, all obligations secured by or reducible to liens and
encumbrances which shall now or hereafter encumber or appear to encumber the
Subject Property or any part thereof, all claims for work or labor performed, or
materials or supplies furnished, in connection with any work of demolition,
alteration, improvement of or construction upon the Subject Property.
Beneficiary hereby expressly reserves the right to advance any and all funds
necessary to cure any and all such obligations and/or claims after providing
written notice to Trustor and a five (5) day opportunity to cure.
5.11 Maintenance and Preservation of the Subject Property. Trustor
covenants (i) to keep the Subject Property in good condition and repair; (ii)
not to remove or demolish the Subject Property or any part thereof; (iii) to
complete or restore promptly and in good and workmanlike manner the Subject
Property or any part thereof which may be damaged or
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destroyed; (iv) to comply with and not suffer violations of (a) all laws,
ordinances, regulations, standards, and (b) all covenants, conditions,
restrictions and equitable servitudes, whether public or private, of every kind
and character, and (c) all requirements of insurance companies and any bureau or
agency which establishes standards of insurability, which laws, covenants or
requirements affect the Subject Property and pertain to acts committed or
conditions existing thereon, including, but without limitation, such work or
alteration, improvement or demolition as such laws, covenants or requirements
mandate; (v) not to commit or permit waste thereof; (vi) to do all other acts
which from the character or use of the Subject Property may be reasonably
necessary to maintain it in the condition (reasonable wear and tear excepted) as
of the date of this Deed of Trust; (vii) to perform all obligations required to
be performed by Trustor pertaining to the Subject Property, including, but not
limited to, any and all leases or subleases of which Trustor is or shall be the
lessor or sublessor (and in the event of default, all right, title and interest
of Trustor under any such leases or subleases and any and all other agreements
affecting the Subject Property in which Trustor shall have an interest shall be
and hereby are automatically assigned to Beneficiary hereunder, together with
any deposits made in connection therewith); (viii) not to create any deed of
trust or encumbrance upon the Subject Property subsequent hereto; and (ix) to
execute, and where appropriate acknowledge, and deliver such further instruments
as Beneficiary or Trustee deems necessary or appropriate to preserve, continue,
perfect and enjoy the security provided for herein, including, but without
limitation, assignments of Trustor's interest in leases or subleases of the
Subject Property.
5.12 Defense and Notice of Actions. Trustor shall, without liability,
cost or expense to Beneficiary or Trustee, protect, preserve and defend
Trustor's fee interest in and to the Subject Property, the security hereof or
the rights or powers of Beneficiary or Trustee hereunder. Said protection,
preservation and defense shall include protection, preservation and defense
against all adverse claimants to Trustor's interest in the Subject Property
whether or not such claimants or encumbrances assert title paramount to that of
Trustor or claim their interest on the basis of events or conditions arising
subsequent to the date hereof. Trustor shall give Beneficiary and Trustee prompt
notice in writing of the filing of any such action or proceeding.
5.13 Collection of Rents, Issues and Profits. Beneficiary confers upon
Trustor a license to collect and retain the rents, issues and profits of the
Subject Property as they become due and payable, subject, however, to the right
of Beneficiary upon default hereunder to revoke said authority at any time in
its sole discretion and without notice to Trustor. Beneficiary may revoke said
authority and collect and retain the rents, issues and profits of the Subject
Property assigned herein to Beneficiary upon the occurrence of an Event of
Default hereunder or under any of the obligations secured hereby, and without
taking possession of all or any part of the Subject Property, and without
prejudice to or limitation upon any of its additional rights and remedies
granted pursuant hereto or pursuant to the Note or this Deed of Trust.
5.14 Right of Inspection. Subject to the rights of tenants under their
respective leases, Beneficiary, its agents or employees, may enter the Subject
Property at any reasonable time for the purpose of inspecting the Subject
Property and ascertaining Trustor's compliance with the terms hereof.
5.15 Acceptance of Trust, Notice of Indemnification. Trustee accepts
this trust when this Deed of Trust, duly executed and acknowledged, becomes a
public record as provided by
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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 Trustee brings such action.
Trustee shall not be obligated to perform any act required of it hereunder
unless the performance of such act is requested in writing and Trustee is
reasonably indemnified against loss, cost, liability and expense.
5.16 Powers of Trustee. From time to time upon written request of
Beneficiary and presentation of this Deed of Trust for endorsement, and without
affecting the personal liability of any person for payment of any indebtedness
or performance of the obligation secured hereby, Trustee may, without liability
therefor and without notice (i) reconvey all or any part of the Subject
Property; (ii) consent to the making of any map or plat thereof; (iii) join in
granting any easement thereon; (iv) join in any declaration of covenants and
restrictions; or (v) join in any extension agreement or any agreement
subordinating the lien or charge hereof. Trustee or Beneficiary may from time to
time apply to any court of competent jurisdiction for aid and direction in the
execution of the trusts hereunder and the enforcement of the rights and remedies
available hereunder, and Trustee or Beneficiary may obtain orders or decrees
directing or confirming or approving acts in the execution of said trusts and
the enforcement of said remedies. Trustee has no obligation to notify any party
of any pending sale or any action or proceeding unless held or commenced and
maintained by Trustee under this Deed of Trust. Trustor shall pay to Trustee
reasonable compensation and reimbursement for services and expenses in the
administration of the trusts created hereunder, including reasonable attorneys'
fees. Trustor hereby agrees to indemnify Trustee and Beneficiary against all
losses, claims, demands and liability which either may incur, suffer or sustain
in the execution of the trust or trusts created hereunder or in the performance
of any act required or permitted hereunder or by law.
5.17 Substitution of Trustees. From time to time, by a writing signed
and acknowledged by Beneficiary and recorded in the Office of the Recorder of
the County in which the Subject Property is situated, Beneficiary may appoint
another trustee to act in the place and stead of Trustee or any successor. Such
writing shall refer to this Deed of Trust and set forth the date, book and page
of its recordation. The recordation of such instrument of substitution shall
discharge Trustee herein named and shall appoint the new trustee as the trustee
hereunder with the same effect as if originally named Trustee herein. A writing
recorded pursuant to the provisions of this paragraph shall be conclusive proof
of the proper substitution of such new trustee.
5.18 Acceleration Upon Sale or Encumbrance. That the financial stability
and managerial and operational ability of Trustor are a substantial and material
consideration to Beneficiary in its agreement to enter into the transaction
evidenced by this Deed of Trust and the Note is hereby acknowledged by Trustor
and Beneficiary. That the transfer or further encumbrance of the Subject
Property, could significantly and materially alter, impair and reduce
Beneficiary's security for the Note is likewise acknowledged by Trustor and
Beneficiary. In order, therefore, to induce Beneficiary to accept the Note,
except with respect to a transfer which is included in items (i) and (ii) of the
definition of "Authorized Transfer," in Section 3.7 of the Participation
Agreement (a "Permitted Transfer"), Trustor agrees not to transfer or further
encumber the Subject Property, or any portion thereof, or any interest therein,
without the prior written consent of Beneficiary. In the event Trustor, or any
successor in interest of Trustor, shall
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transfer or further encumber the Subject Property or any portion thereof, or any
interest therein, other than by a Permitted Transfer, without first obtaining
the written consent of Beneficiary, all indebtedness secured by this Deed of
Trust, including without limitation the unpaid principal balance due on the
Note, irrespective of the maturity date of the Note, shall, at the option of
Beneficiary and without notice or demand, become immediately due and payable. As
used herein, "transfer" includes the sale, option to sell, transfer or
conveyance of the Subject Property, or any portion thereof, or any interest
therein, or the transfer of any general partnership interests, membership
interests or shares of stock (as applicable) in Trustor, whether voluntary,
involuntary (except by eminent domain or upon death or mental incapacity), by
operation of law or otherwise, except that the transfer of outstanding capital
stock or other listed equity interests by persons or parties through the
"over-the-counter" market or any recognized national or international securities
exchange, shall not be included in determining whether Subject Property has been
transferred.
5.19 Intentionally Left Blank.
5.20 Reconveyance. Upon Beneficiary's written request, and upon
surrender to Trustee for cancellation of this Deed of Trust and any note,
instrument or instruments setting forth all obligations secured hereby, Trustee
shall reconvey, without warranty, the Subject Property or that portion thereof
then held hereunder. The recitals of any matters or facts in any reconveyance
executed hereunder shall be conclusive proof of the truthfulness thereof. To the
extent permitted by law, the reconveyance may describe the grantee as "the
person or persons legally entitled thereto." Neither Beneficiary nor Trustee
shall have any duty to determine the right of persons claiming to be rightful
grantees of any reconveyance. When the Subject Property has been fully
reconveyed, the last such reconveyance shall operate as a reassignment of all
future rents, issues and profits of the Subject Property to the person or
persons legally entitled thereto, unless such reconveyance expressly provides to
the contrary.
VI.
DEFAULT PROVISIONS
The following shall constitute events of default ("Events of Default")
hereunder:
6.01 Payment. Failure of Trustor to make any payment required under this
Deed of Trust or the Note when and as it becomes due and payable.
6.02 Breach of General Covenants. A default by Trustor in the due,
prompt and complete observance and performance of each and every material
obligation, covenant and agreement in the Note or in this Deed of Trust, other
than a default specified in paragraph 6.01 above and the continuation of the
default for a period of thirty (30) days after Trustor's receipt of written
notice by Beneficiary describing the defect in reasonable detail and demanding
its cure, however, if the default is of a type which, for reasons other than
reasons within the reasonable control of Trustor, is not susceptible of cure
within such thirty (30) day period, but is susceptible of cure within a
reasonable period of time, then no Event of Default shall occur under this
paragraph unless Trustor shall fail to commence to cure such default within
thirty (30) day
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period or shall fail to diligently pursue the cure of such default to completion
within a reasonable period of time thereafter.
6.03 Intentionally Omitted.
6.04 Appointment of Receiver. The appointment, pursuant to an order of a
court of competent jurisdiction, of a trustee, receiver or liquidator of the
Subject Property or any part thereof, or of Trustor, unless such appointment is
discharged within ninety (90) days after the date of filing thereof.
6.05 Bankruptcy Filing By Trustor. The filing by Trustor of a petition
in bankruptcy or for an arrangement or for reorganization pursuant to the
Federal Bankruptcy Code or any similar law, federal or state, or the
adjudication of Trustor as a bankrupt or as insolvent by a decree of a court of
competent jurisdiction, or the making of an assignment for the benefit of
creditors, or the admission by Trustor in writing of its inability to pay its
debts generally as they become due, or the giving of consent by Trustor to the
appointment of a receiver or receivers of all or any part of its property,
unless such bankruptcy filing is discharged within ninety (90) days after the
date of filing thereof.
6.06 Bankruptcy Filing by Creditors. The filing by any of the creditors
of Trustor or the reorganization of Trustor pursuant to the Federal Bankruptcy
Code or any similar law, federal or state and the same is not discharged within
ninety (90) days after the date of filing thereof.
6.07 Intentionally Omitted.
6.08 Intentionally Omitted.
6.09 Rights and Remedies. At any time after the occurrence of an Event
of Default hereunder, Beneficiary and/or Trustee shall have the following rights
and remedies, all of which are in addition to any rights and remedies available
to Beneficiary under the Note or this Deed of Trust:
(a) With or without notice, to declare all obligations secured hereby
immediately due and payable;
(b) With or without notice, and without releasing Trustor from any
obligation hereunder, to cure any default of Trustor and, in connection
therewith, to enter upon the Subject Property and to do such acts and
things as Beneficiary or Trustee deem necessary or desirable to protect
the security hereof, including, but without limitation, to appear in and
defend any action or proceeding purporting to affect the security hereof
or the rights or powers of Beneficiary or Trustee hereunder; to pay,
purchase, contest or compromise any encumbrance, charge, lien or claim
of lien which, in the judgment of either Beneficiary or Trustee is prior
or superior hereto, the judgment of Beneficiary or Trustee being
conclusive as between the parties hereto; to pay any premiums or charges
with respect to insurance required to be carried hereunder; and to
employ counsel, accountants, contractors and other appropriate persons
to assist them;
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(c) To commence and maintain an action or actions in any court of
competent jurisdiction to foreclose this instrument as a mortgage or to
obtain specific enforcement of the covenants of Trustor hereunder, and
Trustor agrees that such covenants shall be specifically enforceable by
injunction or any other appropriate equitable remedy and that for the
purposes of any suit brought under this subparagraph, Trustor waives the
defense of laches and any applicable statute of limitations;
(d) To enter upon, possess, manage and operate the Subject Property or
any part thereof; to make, terminate, enforce or modify leases of the
Subject Property upon such terms and conditions as Beneficiary deems
proper; to make repairs, alterations and improvements to the Subject
Property necessary, in Trustee's or Beneficiary's judgment, to protect
or enhance the security hereof. All sums realized by Beneficiary under
this subparagraph, less all costs and expenses incurred by it under this
subparagraph, including reasonable attorneys' fees, and less such sums
as Beneficiary deems appropriate as a reserve to meet future expenses
under this subparagraph, shall be applied on any indebtedness secured
hereby in such order as Beneficiary shall determine. Neither application
of said sums to said indebtedness nor any other action taken by
Beneficiary under this subparagraph shall cure or waive any default or
notice of default hereunder or nullify the effect of any such notice of
default. Beneficiary or Trustee, or any employee or agents of
Beneficiary or Trustee, or a receiver appointed by a court may take any
action or proceeding authorized hereunder or by law without regard to
(i) the adequacy of the security for the indebtedness secured hereunder,
(ii) the existence of a declaration that the indebtedness secured hereby
has been declared immediately due and payable, or (iii) the filing of a
notice of default;
(e) To execute a written notice of such default and of its election to
cause the Subject Property to be sold to satisfy the obligations secured
hereby. Trustee shall give and record such notice as the law then
requires as a condition precedent to a Trustee's sale. When the minimum
period of time required by law after such notice has elapsed, Trustee,
without notice to or demand upon Trustor except as otherwise required by
law, shall sell the Subject Property at the time and place of sale fixed
by it in the notice of sale, either as a whole or in separate parcels
and in such order as it or Beneficiary may determine, at public auction
to the highest bidder for cash, in lawful money of the United States,
payable at time of sale (the obligations hereby secured being the
equivalent of cash for purposes of said sale). Trustor shall have no
right to direct the order in which the Subject Property is sold. Trustee
may if so instructed by Beneficiary postpone sale of all or any portion
of the Subject Property by public announcement at such time and place of
sale, and from time to time thereafter may postpone such sale by public
announcement at such time fixed by the preceding postponement. Trustee
shall deliver to the purchaser at such sale a deed conveying the Subject
Property or portion thereof 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. Trustor
or Beneficiary, but not Trustee, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this
trust, including cost of evidence of title and reasonable attorneys'
fees in connection with the sale, Trustee shall apply the proceeds of
sale to payment of (i) all sums so expended under the terms hereof not
then repaid, with accrued interest at the Default Rate; (ii) the payment
of all other sums then secured hereby in such order as Beneficiary may
direct; and (iii) the remainder, if any, to the person or persons
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legally entitled thereto;
(f) To resort to and realize upon or waive the security hereunder and
any other security now or hereafter held by Beneficiary in such order
and manner as Trustee and Beneficiary or either of them may, in their
sole discretion determine; resort to any or all such security may be
taken concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken non-judicial proceedings,
or both;
(g) With respect to all or any part of the encumbered Property that
constitutes personalty, Beneficiary shall also have all of the rights
and remedies of a secured party under the Commercial Code in effect in
the State of California; and
(h) If this Deed of Trust is foreclosed by judicial action, Beneficiary
will be entitled to a judgment which will provide that if the
foreclosure sale proceeds are insufficient to satisfy the judgment,
execution may issue for any amount by which the unpaid balance of the
obligations secured by this Deed of Trust exceeds the net sale proceeds
payable to Beneficiary. Such judgment will be enforceable against
Trustor.
6.10 Receiver. In addition to the foregoing rights and remedies,
Beneficiary shall upon the occurrence of an Event of Default be entitled to the
appointment of a receiver as a matter of right without regard to whether the
apparent value of the Subject Property exceeds the amount of the secured
indebtedness, and any receiver appointed may serve without bond.
6.11 Payment of Costs, Expenses and Attorneys' Fees. All costs and
expenses incurred by Trustee and Beneficiary pursuant to subparagraphs (a)
through (h), inclusive, of Paragraph 6.09 and Paragraph 6.10 (including, but
without limitation, court costs and attorneys' fees, whether incurred in
litigation or not) shall be payable by Trustor and shall bear interest at a rate
per annum equal to the Default Rate from the date of expenditure until said sums
have been paid. Beneficiary shall be entitled to bid, at the sale of the Subject
Property held pursuant to Paragraph 6.09 above, the amount of said costs,
expenses and interest in addition to the amount of the other obligations hereby
secured as a credit bid, the equivalent of cash.
6.12 Remedies Cumulative. All rights and remedies of Beneficiary and
Trustee hereunder are cumulative and in addition to all rights and remedies
provided by law.
6.13 Releases, Extensions, Modification and Additional Security.
Beneficiary may, without affecting the liability of any person for payment of
any indebtedness secured hereby, make any agreement or take any action extending
the maturity or otherwise altering the terms or increasing the amount of any
indebtedness secured hereby, and accept additional security or release all or a
portion of the Subject Property and/or other security held to secure the
indebtedness secured hereby.
6.14 Failure of Trustor to Comply With Deed of Trust. Should Trustor
fail to make any payment or do any act required by this Deed of Trust, or should
there be any action or proceeding (including, without limitation, any judicial
or nonjudicial proceeding to foreclose the lien of a junior or senior mortgage
or deed of trust) affecting or purporting to affect the Subject Property, this
Deed of Trust, Beneficiary's security for the performance of Trustor's
obligations
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under the Note, or the rights or powers of Beneficiary or Trustee under the Note
or this Deed of Trust, Beneficiary or Trustee may (but are not obligated to):
(a) make any such payment or do any such act in such manner and to such extent
as either deems necessary to preserve or protect the Subject Property, this Deed
of Trust, or Beneficiary's security for the performance of Trustor's obligations
under the Note, Beneficiary being authorized to enter upon the Subject Property
for any such purpose; and (b) in exercising any such power, pay necessary
expenses, employ attorneys and pay reasonable attorneys' fees incurred in
connection with the exercise of such power without notice to or demand upon
Trustor and without releasing Trustor from any obligation under this Deed of
Trust.
VII.
MISCELLANEOUS PROVISIONS
7.01 Non-Waiver. By accepting payment of any sum secured hereby after
its due date or late performance of any obligation secured hereby, Beneficiary
shall not waive its right against any person obligated directly or indirectly
hereunder or on any obligation hereby secured or to declare default for failure
to make such prompt payment. No exercise of any right or remedy by Beneficiary
or Trustee hereunder shall constitute a waiver of any other right or remedy
herein contained or provided by law.
7.02 Execution of Documents. Trustor agrees, upon demand by Beneficiary
or Trustee, to execute any and all documents and instruments required to
effectuate the provisions hereof.
7.03 Statements of Conditions. From time to time as required by law,
Beneficiary shall furnish to Trustor such statement as may be required
concerning the condition of the obligations secured hereby. Beneficiary shall be
entitled to the payment of a fee, not to exceed the maximum fee allowed by law,
for any such statement.
7.04 Obligations of Trustor, Joint and Several. If more than one person
has executed this Deed of Trust as Trustor, the obligations of all such persons
hereunder shall be joint and several.
7.05 Beneficiary Defined. The word "Beneficiary" hereunder means the
beneficiary named herein or any future owner or holder, including pledgee, of
any note, notes or instrument secured hereby.
7.06 Rules of Construction. When the identity of the parties hereto or
other circumstances make it appropriate, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural. Specific
enumeration of rights, power and remedies of Trustee and Beneficiary and of acts
which they may do and of acts Trustor must do and acts Trustor must not do shall
not exclude or limit the general. The headings of each paragraph are for
information and convenience and do not limit or construe the contents of any
provision hereof.
7.07 Severability. If any term of this Deed of Trust, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this
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Deed of Trust, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Deed of Trust shall be valid and enforceable to
the fullest extent permitted by law.
7.08 Successors in Interest. The terms, covenants and conditions herein
contained shall be binding upon and inure to the benefit of the heirs,
successors and assigns of the parties hereto.
7.09 Modification and Extensions. References to the Note or this Deed of
Trust in this document shall be deemed to include all modifications, extensions
and renewals thereof. No such modification, extension or renewal shall be valid
or binding unless in writing and executed by both Trustor and Beneficiary.
7.10 Interpretation. The provisions of this Deed of Trust shall be
governed by and construed in accordance with the laws of the state in which the
Subject Property is located, except to the extent that Federal laws preempt the
laws of such state.
7.11 Notices. All written notices expressly provided hereunder to be
given by Beneficiary to Trustor and all notices and demands of any kind or
nature whatsoever which Trustor may be required or may desire to give to or
serve on Beneficiary shall be in writing and shall be served by personal
delivery or registered mail, return receipt requested at the address set forth
on the cover page hereof or in Paragraph 7.13, below.
7.12 Mailing of Notices of Default. Pursuant to California Government
Code Section 27321.5(b), Trustor hereby requests that a copy of any Notice of
Default as may be required by law be mailed to it at its address herein
contained.
7.13 Addresses for Notices to Beneficiary.
c/o EOP Operating Limited Partnership
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
with copies, at the same address, to
Chief Legal Counsel
and with additional copies to:
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
1901 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
day and year set forth above.
"TRUSTOR"
INKTOMI CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Its: Chief Financial Officer
----------------------------------------
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EXHIBIT "A"
(Legal Description)
Real property in the City of ▇▇▇▇▇▇ City, County of San
Mateo, State of California, described as follows:
PARCEL ONE:
Parcel I as created by that certain ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇-▇▇-▇▇▇, 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ (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 non-tangent 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 14'
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;
EXHIBIT "A"
-1-
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
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇;
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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇-▇▇▇, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ (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 the 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
65.03 feet to the True Point of Beginning.
PARCEL THREE:
Parcel III as created by that certain ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇-▇▇▇, recorded October 19, 1998 as Document No.
98169031, Official Records of San Mateo County and further
described as follows:
EXHIBIT "A"
-2-
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 (13) 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
EXHIBIT "A"
-3-
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ (200
feet wide);
Thence along said Northwesterly line South 42 degrees 11'
46" West, 1024.01 feet to the most Southwesterly corner of
said parcel of land designated, "PARCEL 1C" in that
certain Final Order of Condemnation, recorded May 12, 1967
in Book 5306 of Official 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, 662.49 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 ▇▇. ▇▇-▇▇, ▇▇▇▇▇ ▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, 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,
EXHIBIT "A"
-4-
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 I.
The above easement is appurtenant to Parcels I and II
above and was created by that certain Easement Agreement
recorded July 15, 1998 as Document No. 98111669, Official
Records.
APN: ▇▇▇-▇▇▇-▇▇▇, -300, -320 & -340
EXHIBIT "A"
-5-
STATE OF California )
---------------------------
) ss.
COUNTY OF San Mateo )
---------------------------
On September 5, 2002, before me, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Brazil, a Notary Public
in and for said state, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 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.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Brazil
---------------------------------------
Notary Public in and for said State
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EXHIBIT D
PERMITTED TITLE EXCEPTIONS