{"id":41112,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/loan-agreement-microsoft-corp-and-inktomi-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"loan-agreement-microsoft-corp-and-inktomi-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/loan-agreement-microsoft-corp-and-inktomi-corp.html","title":{"rendered":"Loan Agreement &#8211; Microsoft Corp. and Inktomi Corp."},"content":{"rendered":"<pre>\n                                LOAN AGREEMENT\n                                --------------\n                                        \n     This LOAN AGREEMENT, dated as of the later of the two signature dates\nbelow, is made by and among  MICROSOFT CORPORATION (\"Microsoft\"), a Washington\nCorporation, One Microsoft Way, Redmond, Washington 98052-6399 (\"Lender\"), and\nINKTOMI CORPORATION (\"Inktomi\"), a California corporation, 1900 South Norfolk\nStreet, Suite 110, San Mateo, California 94403 (\"Borrower\").\n\n\n                                   RECITALS\n                                   --------\n \n     A.   Borrower develops and markets computer software products, including\nwithout limitation a \"search engine\" software for searching and indexing\ninformation accessible through the Internet.\n\n     B.   Lender develops, manufactures, distributes and markets computer\nsoftware products and services.\n\n     C.   Borrower and Lender desire to enter into a business relationship\npursuant to which, among other things, (i) Borrower would (a) develop software\nfor Lender to implement desired features for a Lender search engine, (b) provide\nsearch results for Lender using Borrower's search engine customized with, among\nother elements, the features developed for Lender, (c) provide software hosting\nand maintenance services for Lender's benefit, and (d) purchase additional\nhardware and software necessary or desirable to service Lender's needs, and (ii)\nLender would make certain payments to Borrower, and provide loans to Borrower to\nfacilitate Borrower's purchase of additional hardware and software necessary or\ndesirable to service Lender's needs.\n\n     D.   This Loan Agreement and a Security Agreement between the parties of\neven date, are intended to set forth the terms and conditions applicable to the\nloan aspects of such business relationship.\n\n     NOW THEREFORE, for and in consideration of the mutual covenants and\nconditions set forth herein, the parties agree as follows:\n\n\n                                  AGREEMENTS\n                                  ----------\n\n     1.   Loan to Borrower. Pursuant to the terms and conditions of that certain\n          ----------------       \nSoftware Hosting Agreement between Borrower and Lender of even date herewith\n(the \"Hosting Agreement\"), Borrower may be required, after consultation with and\napproval by Lender, to purchase additional Hosting Servers, as that term is\ndefined in the Hosting Agreement.  Subject to the terms and conditions of this\nAgreement, Lender shall from time to time make advances (\"Advances\") to Borrower\nduring the period from the date hereof until the termination of this Agreement.\nIn no event shall Lender have any obligation to make Advances to Borrower\nfollowing the occurrence of any Event of Default as defined in section 11 of\nthis Agreement.\n\n                                      -1-\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n     A.  Advances.  Advances shall be made only in amounts separately agreed\n         --------                                                           \nbetween Lender and Borrower to be sufficient to purchase the additional Hosting\nServers required by Lender. Each such Advance shall be evidenced by a promissory\nnote (the \"Promissory Note\") with a term of [*] ([*]) [*] in substantially the\nform of the sample note attached hereto as Exhibit A. The terms of all such\nPromissory Notes are by this reference incorporated in this Agreement. The\nproceeds of each Advance shall only be used by Borrower to purchase the\nadditional Hosting Servers for which that Advance is made.\n\n     B.  Persons Authorized.  Lender is hereby authorized by Borrower to make\n         ------------------                                                  \nAdvances only upon the written requests (including requests made by telex,\ntelegraph or facsimile), of any one of the following persons (the \"Responsible\nOfficers\" and each a \"Responsible Officer\"): Dave Peterschmidt, Jerry Kennelly\nand Randy Gottfried; each of whom is and shall be authorized to request Advances\nand direct the disposition of any Advance until written notice by Borrower of\nthe revocation of such authority is received by Lender. Any Advance shall be\nconclusively presumed to have been made to or for the benefit of Borrower when\nmade in accordance with such a request. Requests for Advances shall be on the\nBorrowing Notice form attached hereto as Exhibit B. Any such Borrowing Notice\nshall be directed to the following Lender representative (or such other person\nas Lender may direct from time to time) for approval prior to disbursement:\nShirish Nadkarni.\n\n     C.  Assumption of Risk.  It is important to Borrower that Borrower have the\n         ------------------                                                     \nprivilege of making requests for Advances by e-mail, telex, telegraph or\nfacsimile. Therefore, to induce Lender to lend funds in response to such\nrequests, and in consideration for Lender's agreement to receive and consider\nsuch requests, BORROWER ASSUMES ALL RISK OF THE VALIDITY, AUTHENTICITY AND\nAUTHORIZATION OF SUCH REQUESTS, WHETHER OR NOT THE INDIVIDUAL MAKING SUCH\nREQUEST HAS AUTHORITY IN FACT TO REQUEST ADVANCES ON BEHALF OF BORROWER. UNLESS\nAN UNAUTHORIZED OR INVALID ADVANCE IS MADE AS A RESULT OF GROSS NEGLIGENCE ON\nTHE PART OF LENDER, LENDER SHALL NOT BE RESPONSIBLE, UNDER PRINCIPLES OF\nCONTRACT, TORT OR OTHERWISE, FOR ANY LOSS SUSTAINED BY BORROWER RESULTING FROM\nANY UNAUTHORIZED OR INVALID ADVANCE, INCLUDING, BUT NOT LIMITED TO, THE AMOUNT\nOF ANY ADVANCE. Borrower agrees to repay any sums, with interest as provided\nherein, that Lender so advances. Borrower agrees to give Lender prompt written\nconfirmation of all e-mail, telex, telegraph or facsimile requests for Advances;\nbut Borrower's failure to do so, or the failure of such confirmation to reach\nLender, shall not affect Borrower's assumption of the risk with respect to such\nAdvance or reduce in any way the obligation of Borrower to repay with interest\nall amounts theretofore or thereafter advanced by Lender pursuant thereto.\n\n     D.  Request for Advance.  Each request for an Advance shall set forth the\n         -------------------                                                  \namount of such Advance and the date such Advance is to be made, such request to\nbe received by Lender by 9:30 a.m., Seattle, WA, USA time ten (10) full business\ndays before such Advance is to be made. Any proposed Advance shall be made and\neffected only on a business day and may be disbursed only after a separate\nPromissory Note for such Advance is properly executed by \n\n                                      -2-\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nBorrower, and delivered to and accepted by Lender. If the date of the proposed\nAdvance is not a business day, such Advance shall be effected on the next\nsucceeding business day. Each request for an Advance shall be irrevocable and\nbinding on Borrower.\n\n     E.  Disbursement of Advances.  Advances made and effected by Lender shall\n         ------------------------                                             \nbe disbursed by wire transfer in immediately available funds to the depository\naccount set forth in Exhibit E hereto, or such other account as Borrower may\ndesignate from time to time by written notice to Lender signed by a Responsible\nOfficer.\n\n     2.  Term and Termination.  This Agreement shall terminate upon the\n         --------------------                                          \ntermination of the Hosting Agreement (\"Maturity Date\"); provided that all rights\nand remedies to which Lender is entitled under this Agreement and at law shall\nsurvive any such termination of the Agreement until all amounts advanced or\notherwise due Lender under this Agreement have been repaid or otherwise\nsatisfied according to the terms of this Agreement.\n\n     3.  Interest.  The outstanding principal balance of the Loan shall bear\n         --------                                                           \ninterest at the lowest appropriate applicable federal rate, as determined by\nMicrosoft, when each Promissory Note (or the New Note described in section 4) is\nissued. All computations of interest shall be based on a 360-day year for the\nactual number of days passed.\n \n     4.  Payment of Principal and Interest.\n         --------------------------------- \n\n          A.   Monthly Payments. Payment of principal and interest for each\n               ----------------\nAdvance shall be made in immediately available funds, by 10:00 a.m., Seattle\ntime, at such location designated by Lender or the holder of the applicable\nPromissory Note, on the date each payment is due as provided in the Promissory\nNote. The payments of principal and interest shall be separately calculated for\neach Advance and shall be payable in immediately available funds on the first\nbusiness day of each month until paid in full. Each installment payment shall be\nin an amount sufficient to cause the principal balance of each Advance to be\nrepaid within three years. Notwithstanding the foregoing, any amounts accrued\nbut not paid at the time of termination of this Agreement shall be payable or\notherwise satisfied in accordance with the following subsections.\n\n          B.   Roll-over or Acceleration. Upon expiration or termination of this\n               -------------------------\nAgreement:\n\n               (i)  If this Agreement is terminated due to the mutual agreement\nof the parties, due to termination of the Hosting Agreement by Lender pursuant\nto section 10.2 of the Hosting Agreement, or due to termination of the Hosting\nAgreement by Borrower pursuant to section 10.1 of the Hosting Agreement, then\nimmediately prior to the effective date of such termination Lender shall cancel\nall outstanding Promissory Notes and Borrower shall simultaneously execute a new\npromissory note (\"New Note\") for all outstanding principal, interest and other\namounts under such Promissory Notes owed or owing to Lender by Borrower on that\ndate, in substantially the form attached as Exhibit C satisfying and replacing\nall outstanding Advances and other amounts due under this Agreement. A New Note\nissued \n\n                                      -3-\n\n \npursuant to this subsection shall carry the same interest rate and be subject to\nthe same terms and conditions as all Advances under this Agreement, except that\nthe term of the New Note shall be two (2) years, and each installment payment\nshall be in an amount sufficient to cause the principal balance of the New Note\nto be repaid within two (2) years. Installment payments for the New Note shall\nbe made in immediately available funds, by 10:00 a.m., Seattle time, at such\nlocation designated by Lender or the holder of the New Note, on the date each\npayment is due as provided in the New Note. Prior to execution of the New Note,\nBorrower shall satisfy all conditions precedent and make all representations and\nwarranties required for Advances under this Agreement.\n\n               (ii) If termination of this Agreement is due to any other reason\n(other than due to a material breach of this Agreement or the Hosting Agreement\nby Lender), such termination shall be considered an Event of Default and subject\nto any and all remedies available to Lender for an Event of Default as provided\nin section 12 of this Agreement.\n\n          C.   Prepayment. Borrower may prepay each Advance in whole or in part,\n               ----------\nat any time without penalty. Any repayments of the amounts due under this Loan\nAgreement shall be made in immediately available funds and shall be applied\nfirst against any amounts owed to Lender under the Security Agreement, then to\nthe payment of past due interest on any outstanding Advance, and any remaining\namount shall reduce the outstanding principal amount of each Advance.\n\n     5.   Overdue Payments; Default Rate. If any amount due under this Agreement\n          ------------------------------   \nis not paid when and as due, such amount shall bear interest from the date such\npayment was due until and including  the date such payment is received by Lender\nat a rate per annum equal to eighteen percent (18 %) per annum (the \"Default\nRate\"), provided that in no event shall the rate of interest exceed that\npermitted by applicable law.\n\n     6.   Security for the Loan.  This Loan is secured by a purchase money\n          ---------------------                                           \nsecurity interest in the Hosting Servers purchased by each Advance, pursuant to\nthe terms of a security agreement of even date (\"Security Agreement\").  Lender\nshall have a first priority security interest in all of the collateral described\nin the Security Agreement (the \"Collateral\").\n\n     7.   Representations and Warranties.  Borrower hereby represents and\n          ------------------------------                                 \nwarrants to Lender as follows:\n\n          A.   Corporate Existence. Borrower is a corporation, duly organized\n               -------------------\nand validly existing, in good standing under the laws of its state of\nincorporation, and is duly authorized and qualified under all applicable laws,\nregulations, ordinances and orders of public authorities to carry on such\nbusiness in any state or county where such qualification is necessary and to own\nand hold property.\n\n          B.   Corporate Power. Borrower has full right, power and authority to\n               ---------------\nenter into and perform this Agreement, each Promissory Note, the New Note, and\nthe Security \n\n                                      -4-\n\n \n(collectively, the \"Documents\"), and to grant all of the rights granted and\nagreed to be granted pursuant to this Agreement and the Documents.\n\n          C.   Authorization. Borrower has taken all necessary corporate action\n               -------------\nto authorize the execution, delivery and performance of this Agreement and the\nother Documents, including but not limited to, all necessary corporate action\nrequired by its articles of incorporation and bylaws.\n\n          D.   No Conflict, Violation or Consent Required. The execution,\n               ------------------------------------------\ndelivery and performance of, and the compliance with the provisions of each of\nthe Documents do not and will not violate any provision of an applicable law or\nany provision of Borrower's articles of incorporation and bylaws, and will not\nconflict with, require consent under any provision of, result in any breach of\nany of the terms, conditions or provisions of, result in the creation or\nimposition of any lien, charge or encumbrance upon any of the properties or\nassets of Borrower pursuant to the terms of, or constitute a default under or\nconflict with, any other indenture, contract, mortgage, deed of trust or other\nagreement or instrument to which Borrower is a party or by which Borrower is\nbound. Borrower shall not enter into other contractual obligations which will\nrestrict or impair its obligations under this Agreement or any other Document.\n\n          E.   Binding Effect. This Agreement constitutes, and the Promissory\n               --------------\nNote and each of the other Documents, when executed and delivered by Borrower,\nwill constitute, valid obligations of Borrower and are binding and enforceable\nagainst Borrower in accordance with their respective terms, except as hereafter\nmay be limited by applicable bankruptcy, insolvency, reorganization, or similar\nlaws affecting the enforcement of creditor's rights and the availability of\nspecific performance.\n\n          F.   Familiarity With Terms. Borrower is fully familiar with all of\n               ----------------------\nthe terms, covenants and conditions of the Documents.\n\n          G.   Legal Proceedings. Except as disclosed on Schedule 1 attached\n               -----------------\nhereto, there is no action, suit or proceeding pending or, to the knowledge of\nBorrower, threatened, at law or in equity or before or by any federal, state,\nmunicipal or other governmental department, commission, board, bureau, agency or\ninstrumentality, domestic or foreign, that might result in a material adverse\nchange in Borrower's ownership or title to any of the Collateral or in its\nfinancial condition or operations. As used in this subsection, the phrase \"to\nthe knowledge of Borrower\" shall mean the current actual knowledge of the\nexecutive officers and directors of Borrower.\n\n          H.   No Governmental Approvals. No registration with or approval of\n               -------------------------\nany governmental agency or commission is necessary for the due execution and\ndelivery of any of the Documents or for the validity or enforceability thereof\nwith respect to any obligation of Borrower hereunder or thereunder, except acts\nto be performed by Lender in order to perfect Lender's security interest in the\nCollateral.\n\n                                      -5-\n\n \n          I.   Liens and Encumbrances. Borrower shall keep the Collateral\n               ----------------------\npurchased with each Advance free and clear of all liens, claims, encumbrances\nand rights of others and at the request of Lender from time to time, shall\nobtain an agreement, in a form satisfactory to Lender in its sole discretion,\nfrom any of its general creditors or lien holders to subordinate their interests\nin the Collateral to Lender's interest pursuant to this Agreement and the\nSecurity Agreement.\n\n          J.   Compliance With Laws. Borrower has complied with all laws,\n               --------------------                                       \nregulations, ordinances and orders which affect in any material respect its\nright to carry on its  operations, perform its obligations under the Documents\nor meet its obligations in the ordinary course of business.\n\n          K.   Outstanding Debt. There exists no default under the provisions of\n               ----------------\nany agreement or instrument evidencing any outstanding indebtedness of Borrower\nand\/or its subsidiaries to any party or any material agreement to which Borrower\nand\/or its subsidiaries is currently a party.\n\n          L.   Disclosure. This Agreement does not contain any untrue statement\n               ----------\nof a material fact and does state all material facts necessary in order to make\nthe statements contained herein not misleading in light of the circumstances\nunder which they were made. There is, to the knowledge of Borrower, no fact that\nwould materially adversely affect its business, prospects, condition, affairs or\noperations or any of its properties or assets.\n\n          M.   No Consents. The execution, delivery and filing of the Security\n               -----------                                                     \nAgreement and any financing statements, and the creation of the lien, mortgage,\nencumbrance, preference or security interest contemplated thereby, will not\nrequire the consent or approval of any person or entity not a party to this\nAgreement.\n\n          N.   Perfection of Liens and Security Interest. As of the date hereof,\n               ----------------------------------------- \nLender will have a valid and perfected first priority lien on and security\ninterest in all of the Collateral (whether now owned or hereafter acquired),\nwhich lien and security interest will be enforceable against the applicable\ngrantor thereof and all third parties and will secure the obligations stated\ntherein. All filings, recordations and other actions necessary under any laws to\nperfect and protect such liens and security interests as first-priority liens\nand security interests in the Collateral have been, or will on the Closing Date\nbe, duly taken.\n\n     8.   Affirmative Covenants. Until all amounts owed under the Documents have\n          ---------------------                                       \nbeen paid in full or otherwise satisfied under the terms of this Agreement,\nBorrower, at its own expense, covenants and agrees at all times to comply with\nthe terms of this paragraph 8.\n\n          A.   Financial Information.\n               --------------------- \n\n               (i)  Borrower shall furnish or cause to be furnished to Lender,\nas soon as practicable and in any event within forty-five (45) days after the\nclose of each fiscal quarter, the following unaudited financial statements of\nBorrower for each such quarter, all in reasonable \n\n                                      -6-\n\n \ndetail and certified by a Responsible Officer of Borrower to be true and\ncorrect: balance sheet, statement of income, and statement of cash flows.\n\n               (ii)   Borrower shall furnish or cause to be furnished to Lender,\nas soon as the same are available, and in any event within ninety (90) days\nafter the end of each of each fiscal year Borrower's consolidated balance sheet,\nstatement of income and a statement of cash flows, all as of the end of such\nfiscal year (together, in each case, where applicable, with the comparable\nfigures for the prior fiscal year), all in reasonable detail. Annual\nconsolidated financial statements shall be prepared and audited (without any\nqualification or exception deemed material by Lender) in accordance with\ngenerally accepted accounting principles applied on a basis consistently\nmaintained throughout the period involved (except as disclosed in the notes to\nthe financial statements) by independent certified public accountants of\nrecognized national standing or otherwise reasonably acceptable to Lender.\n\n               (iii)  Concurrently with the information described in (i) and\n(ii) above, a certificate of a Responsible Officer of Borrower stating that the\nconsolidated financial statements delivered to Lender are properly stated and\nthat there exists no Event of Default, or event which with notice or lapse of\ntime, or both, would constitute an Event of Default, or, if any such event\nexists, specifying the nature and period of existence thereof and what action\nBorrower proposes to take with respect thereto.\n\n               (iv)   Borrower shall also furnish or cause to be furnished, from\ntime to time, such additional financial and other information as Lender may\nreasonably request in order to monitor the financial condition of Borrower.\n\n          B.   Notice of Default. Immediately upon obtaining knowledge of the\n               -----------------                                              \noccurrence of any event that constitutes an Event of Default, or that with\nnotice or lapse of time, or both, would constitute an Event of Default, Borrower\nshall give written notice thereof to Lender, together with a detailed statement\nof the steps being taken by Borrowers to cure such event.\n\n          C.   Maintenance of Existence. Borrower shall cause to be done all\n               ------------------------\nthings necessary to maintain and preserve the corporate existence, rights and\nfranchises of Borrower and shall comply with all related laws applicable to\nBorrower and\/or its subsidiaries.\n\n          D.   Payment of Taxes. Borrower shall pay, indemnify and hold Lender\n               ----------------                                                \nharmless from (i) all taxes, assessments and charges lawfully levied or imposed\nby the United States, any state or local government, any taxing authority or any\npolitical or governmental subdivision of any foreign country on or with respect\nto the Collateral or any part thereof, and (ii) any other claims which, if\nunpaid, might become by law a lien upon Borrower's property; except, and only to\nthe extent that any such taxes, assessments, charges or claims are being\ncontested in good faith (and for the payment of which adequate reserves have\nbeen provided) by appropriate proceedings conducted diligently and in good faith\nso long as such proceedings do not involve a material danger of the sale,\nforfeiture or loss of all or a material portion of the Collateral.\n\n                                      -7-\n\n \n          E.   Maintenance of Property and Leases. Borrower shall keep its\n               ----------------------------------\nproperties in good repair and condition, reasonable wear and tear excepted, and\nfrom time to time make all necessary and proper repairs, renewals, replacements,\nadditions and improvements thereto. Borrower shall at all times comply with the\nprovisions of all leases to which it is a party so as to prevent any loss or\nforfeiture thereof or thereunder.\n\n          F.   Insurance. Borrower shall maintain with responsible companies\n               ---------                                                     \nreasonably acceptable to Lender liability insurance and insurance with respect\nto the Collateral in amounts and covering risks as is customary among companies\nengaged in businesses similar to that of Borrower. Each liability insurance\npolicy maintained pursuant to this paragraph shall name Lender as additional\ninsured. Each such policy other than liability policies shall name Lender as\nnamed insured and loss payee as its interest may appear. The parties agree that\nsuch interest of Lender shall be equal to the total of all amounts owed under\nthe Documents to Lender. Borrower shall maintain insurance against any other\nrisks as is customary among companies engaged in businesses similar to that of\nBorrower. All required insurance shall (a) be in form and amount reasonably\nsatisfactory to Lender and (b) contain a Lender's Loss Payable Endorsement. Each\ninsurer shall agree by endorsement upon the policies issued by it, or by\nindependent instrument furnished to Lender, that it will give Lender thirty (30)\ndays written notice before the policy is materially altered or canceled. The\nproceeds of any public liability policy shall be payable first to Lender to the\nextent of its liability, if any, and the balance shall be payable to Borrower.\nBorrower hereby irrevocably appoints Lender as Borrower's attorney-in-fact to\nmake claim for, receive payment of, and execute and endorse all documents,\nchecks or drafts for loss or damage under any insurance policy.\n\n          G.   Notice of Litigation. Borrower shall promptly notify Lender in\n               --------------------\nwriting of the initiation of any litigation against Borrower that in Borrower's\ngood faith judgment might materially and adversely affect the operations,\nfinancial condition, property or business of Borrower. If any suit is filed\nagainst any of the Collateral or if any of the Collateral is otherwise attached,\nlevied upon or taken in custody by virtue of any legal proceeding in any court,\nBorrower shall promptly notify Lender thereof by telephone, confirmed by letter,\nand within sixty (60) days (unless otherwise consented to in writing by Lender)\ncause the Collateral to be released and promptly notify Lender thereof in the\nmanner aforesaid.\n\n          H.   Accounts and Reports. Borrower shall keep true and accurate\n               --------------------\nrecords and books of account in which full, true and correct entries shall be\nmade of all dealings or transactions in relation to its business and affairs in\naccordance with generally accepted accounting principles.\n\n          I.   Compliance With Laws. Borrower shall duly observe and conform to\n               --------------------\nall valid requirements of governmental authorities relating to the conduct of\nits business or to its property or assets.\n\n          J.   Inspection.  Borrower shall permit Lender or its designated\n               ----------                                                 \nrepresentative, at all reasonable hours upon reasonable advance notice, to visit\nand inspect Borrower's \n\n                                      -8-\n\n \nproperties, offices, facilities and the Collateral, and to examine Borrower's\nbooks of account, solely to monitor the status of the Collateral and financial\ncondition of Borrower. Lender agrees that any such visitation or inspection may\nbe escorted and monitored by Borrower.\n\n          K.   Filing and Execution of Documents. Borrower shall from time to\n               ---------------------------------\ntime do and perform such other and further acts and execute and deliver any and\nall such further instruments as may be required by law or reasonably requested\nby Lender to establish, maintain and protect Lender's security interest in any\nof the Collateral as provided in this Agreement.\n\n          L.   Anti-forfeiture. Borrower shall not have committed or commit any\n               ---------------\nact or omission affording the federal government or any state or local\ngovernment the right of forfeiture as against the property of Borrower or any\npart thereof or any moneys paid in performance of its obligations under this\nAgreement, any Promissory Note or under any of the other Documents. Borrower\ncovenants and agrees not to commit, permit or suffer to exist any act or\nomission affording such right of forfeiture. In furtherance thereof, Borrower\nhereby indemnifies Lender and agrees to defend and hold Lender harmless from and\nagainst any loss, damage or injury by reason of the breach of the covenants and\nagreements or the warranties and representations set forth in the preceding\nsentence. Without limiting the generality of the foregoing, the filing of formal\ncharges or the commencement of proceedings against Borrower, Lender, or all or\nany of the property of any Borrower under any federal or state law for which\nforfeiture of such property or any part thereof or of any moneys paid in\nperformance of any Borrower's obligations under the Documents shall, at the\nelection of Lender, constitute an Event of Default hereunder without notice or\nopportunity to cure.\n\n          M.   Meeting. The Responsible Officers of Borrower (and such other\n               -------\nofficers and employees of Borrower as Lender may reasonably request) shall meet\nat least once per year with Lender's designated representatives to review\nBorrower's consolidated financial statements and such other information\nregarding the operation of Borrower's business as may be reasonably requested by\nLender to monitor the financial condition of Borrower and status of the\nCollateral.\n\n     9.   Negative Covenants.  Until all amounts owed under this Agreement, the\n          ------------------                                                   \nPromissory Note and the other Documents have been paid in full or otherwise\nsatisfied under the terms of this Agreement, Borrower, without the prior written\nconsent of Lender, covenants and agrees that it shall not sell all or any\nportion of the Collateral, nor relocate the Collateral.  Borrower shall not\nencumber the Collateral, assume any debt secured by the Collateral or subject\nthe Collateral to any unpaid charge or claim of any third party. Lender may give\nits prior written consent to any sale or encumbrance of any of the Collateral\nupon the express terms and conditions set forth in such consent of Lender.\n\n     10.  Conditions Precedent to Loan Advances.  Notwithstanding anything\n          -------------------------------------                           \ncontained herein to the contrary, the obligation of Lender to make any Advance\nto Borrower, is expressly conditioned upon the following:\n\n          A.   Representations and Warranties. All representations and\n               ------------------------------\nwarranties of Borrower contained in this Agreement, in the Documents and in any\ncertificate or other \n\n                                      -9-\n\n \ninstrument delivered pursuant to the provisions hereof, or in connection with\nthe transactions contemplated hereby, shall be and remain true and correct in\nall material respects throughout the term of this Agreement, including without\nlimitation on the date of each request for an Advance with the same force and\neffect as though such representations and warranties had been made on the date\nof the Advance.\n\n          B.   Covenants.  Borrower shall have performed and complied with all\n               ---------                                                      \nmaterial terms, covenants and conditions of this Agreement and the Documents to\nbe performed or complied with by it on or before execution of this Agreement or\non or before the date of each Advance, as the case may be.\n\n          C.   No Event of Default. There shall exist no Event of Default, or\n               -------------------\nevent which with notice or lapse of time, or both, would constitute an Event of\nDefault, under this Agreement or the other Documents.\n\n          D.   Subordination of Prior Interests\/Release of Liens. If Lender so\n               -------------------------------------------------               \nrequests, for any prior security interest, lien or encumbrance in the Collateral\nor in the general assets of the Borrower's business, Borrower shall obtain a\nsubordination agreement from its creditor or lien holder in favor Lender or\nshall obtain the release and discharge of such security interest, lien or\nencumbrance, including any financing statement or recorded lien filed to perfect\nsuch interest, lien or encumbrance.\n\n          E.   Delivery of Documentation. Borrower, at its sole cost and\n               -------------------------\nexpense, shall have delivered to Lender the following documents, duly executed\nby the appropriate party, in form and substance satisfactory to Lender:\n\n               (i)   the applicable Promissory Note executed by Borrower prior\nto disbursement of each respective Advance;\n\n               (ii)  the Security Agreement executed by Borrower on the date of\nthis Agreement;\n\n               (iii) the Hosting Agreement executed by Borrower, on the date of\nthis Agreement;\n\n               (iv)  a certificate of Borrower's corporate secretary, to be\ndated as of the date of this Agreement, certifying as true and accurate and in\nfull force and effect as of that date, copies of current resolutions of\nBorrower's Board of Directors authorizing (i) Borrower to enter into and perform\nthis Agreement and to execute, deliver and honor and perform the other\nDocuments, and (ii) the persons who have executed or will execute this\nAgreement, the Promissory Note and the other Documents to do so;\n\n               (v)   a certificate, as of the most recent date practical, of the\nsecretary of state of Borrower's state of incorporation as to the good standing\nof Borrower;\n\n                                      -10-\n\n \n               (vi)   certificates issued in favor of Lender evidencing the\ninsurance policies required by Lender in accordance with Section 8F hereof;\n\n               (vii)  UCC financing statements executed by Borrower, in form and\nsubstance satisfactory to Lender, evidencing Lender's security interest in the\nCollateral designated thereon to be filed in each jurisdiction in which Borrower\nis or may be doing business;\n\n               (viii) officer's certificates executed by a Responsible Officer\nof Borrower, dated the purchase date for each purchase of each item of\nCollateral, certifying that on that date (i) Borrower has good title to all\nCollateral described in the Security Agreement, (ii) no Event of Default, or\nevent which with notice or lapse of time, or both, would constitute an Event of\nDefault, has occurred, and is continuing, and (iii) the representations and\nwarranties contained in the Documents are true and accurate on and as of that\ndate;\n\n               (ix)   such other agreements, certificates or other documents as\nshall be deemed necessary or desirable, in the good faith opinion of Lender or\nits counsel, in order to fully and completely perfect, preserve or protect\nLender's interests hereunder and Lender's security interest in the Collateral;\n\n               (x)    a valid and authorized Borrowing Notice containing a\nrequest for an Advance approved by Lender's designated representative.\n\n     11.  Events of Default.  The occurrence of one or more of the following\n          -----------------                                                 \nevents (herein called \"Events of Default\") shall constitute a default under this\nAgreement.\n\n          A.   Borrower's failure to pay any portion of any installment of\nprincipal or interest due under any Promissory Note or any other amount under\nany of the other Documents when and as the same shall become due and payable as\ntherein or herein expressed, if such failure continues for a period of ten (10)\ndays after Lender has notified Borrower (regardless of whether Borrower actually\nreceives such notice) that such payment has not been received;\n\n          B.   Borrower's failure to comply with and duly and punctually observe\nor perform, any of the covenants of Borrower contained in Sections 8B, 8C, 8D,\n8E and 8H and Section 9 of this Loan Agreement;\n\n          C.   Borrower's failure to maintain insurance as required in\naccordance with Section 8F hereof; which failure shall continue for a period of\nten (10) days after the earlier of the giving of notice of such failure by\nLender to Borrower, or the date Lender is notified of such failure by Borrower\nor should have been so notified pursuant to section 8B hereof.\n\n          D.   Borrower applies for, consents to or acquiesces in the\nappointment of a trustee, receiver, liquidator, assignee, sequestrator or other\nsimilar official for Borrower or for any of Borrower's property, or makes a\ngeneral assignment for the benefit of creditors, or files a petition or an\nanswer seeking reorganization in a proceeding under any bankruptcy law (as now\n\n                                      -11-\n\n \nor hereafter in effect) or a readjustment of its indebtedness or an answer\nadmitting the material allegations of a petition filed against it in any such\nproceeding, or seeks relief under the provisions of any bankruptcy or similar\nlaw; or, in the absence of any of the foregoing, a trustee, receiver,\nliquidator, assignee, sequestrator or other similar official is appointed for\nBorrower or for a substantial part of any of the property of Borrower and is not\ndischarged within sixty (60) days; or any bankruptcy, reorganization, debt\narrangement or other proceeding under any bankruptcy or other insolvency law or\ncommon law or in equity is instituted against Borrower and is not dismissed\nwithin sixty (60) days; or, in the absence of any of the foregoing, if, under\nthe provisions of any law providing for reorganization or winding up which may\napply to Borrower, any court of competent jurisdiction shall assume\njurisdiction, custody or control of Borrower or of any substantial part of any\nof Borrower's property and such jurisdiction, custody or control shall remain in\nforce unrelinquished, unstayed or unterminated for a period of sixty (60) days;\n\n          E.   any material representation or warranty made by Borrower and\ncontained in any of the Documents, or otherwise made by Borrower to Lender,\nproves or becomes untrue in any material respect, provided that any cure period\n(if any) available to remedy the inaccuracy has passed;\n\n          F.   Borrower is in material default in the payment or performance of\nany material obligation under any promissory note, indenture, contract,\nmortgage, deed of trust or other instrument to which Borrower is a party or by\nwhich Borrower is bound and the applicable cure period shall have expired;\n\n          G.   any provision of any Document, including, without limitation, the\nSecurity Agreement, shall for any reason (except for acts to be performed by\nLender) cease to be valid and binding on any signatory thereto, or such\nsignatory shall so allege, or any Security Agreement shall for any reason\n(except for acts to be performed by Lender) cease to create a valid and\nperfected first priority lien, mortgage, encumbrance or security interest except\nto the extent permitted by the terms thereof, in any of the property purported\nto be covered thereby, or the signatory to such Security Agreement shall so\nallege;\n\n          H.   the termination of the Hosting Agreement by Lender due to the\nmaterial breach thereunder by Borrower; or\n\n          I.   Borrower's failure to duly and punctually observe or perform, in\nany material respect, any other of the covenants, conditions or agreements to be\nperformed or observed by Borrower contained in this Agreement or any of the\nDocuments and, except as may otherwise be specifically provided in the\nDocuments, such failure continues for a period of thirty (30) days after the\nearlier of the giving of notice of such failure by Lender to Borrower, or the\ndate Lender is notified of such failure by Borrower or should have been so\nnotified pursuant to section 8B hereof.\n\n          J.   Borrower's material breach under the Hosting Agreement and\/or any\nof the following agreements between the parties (which remains uncured after the\napplicable core \n\n                                      -12-\n\n \nperiod, if any, thereunder): the Software Development Agreement of even date\nherewith; and the Information Services Agreement of even date herewith (and the\nEscrow Agreement referred to therein).\n\n     12.  Remedies.  Upon the occurrence of an Event of Default and while any\n          --------                                                           \nEvent of Default is continuing, Lender may at its option elect to pursue any or\nall of the following remedies, which are cumulative and in addition to any other\nright or remedy provided by applicable law:\n\n          A.   without further demand, protest or notice of any kind to\nBorrower, declare any or all sums and obligations due under the Documents to be\ndue and immediately payable, and upon such declaration the same shall become and\nbe immediately due and payable;\n\n          B.   terminate Lender's commitment to make Advances hereunder;\n\n          C.   If Borrower fails to perform any act that it is required to\nperform under this Agreement or the Security Agreement, Lender may, but shall\nnot be obligated to, perform, or cause to performed, such act, provided that any\nreasonable expense thereby incurred by Lender and any money thereby paid by\nLender, shall be a demand obligation owing by Borrower and Lender shall promptly\nnotify Borrower of the amount of such obligation, which obligation shall bear\ninterest at the Default Rate from the date Lender makes such payment until\nrepaid by Borrower; and Lender shall be subrogated to all rights of the person\nreceiving such payment;\n\n          D.   enforce Lender's rights under the Security Agreement;\n\n          E.   terminate the Hosting Agreement;\n\n          F.   institute one or more legal proceedings at law or in equity for\nthe:\n\n               (i)    specific performance of any covenant, condition, agreement\nor undertaking contained in the Documents, or in aid of the execution of any\npowers granted therein and\/or to recover a judgment for damages for the breach\nhereof, including, without limitation, any amount due under the Documents,\neither by their terms or by virtue of such declaration, and collect the same out\nof any property of Borrower;\n\n               (ii)   foreclosure of its security interest in the Collateral and\nthe sale of all or any part of the Collateral under the judgment or decree of\nany court of competent jurisdiction;\n\n               (iii)  enforcement of such other appropriate legal or equitable\nremedy as may in the opinion of Lender be necessary to protect and enforce\nLender's rights under the Documents;\n\n          G.   assert such other rights and remedies of a secured party and of a\nmortgagee under the laws of the United States or the state of Washington\n(regardless of whether such law or one similar thereto has been enacted in the\njurisdiction where the rights or remedies are asserted), \n\n                                      -13-\n\n \nincluding, without limitation, all rights of a secured party under the UCC,\nwhether or not this Agreement and the transactions contemplated hereby are\ndetermined to be governed by the UCC.\n\n     13.  Costs and Expenses of Collection and Enforcement.  Borrower shall pay\n          ------------------------------------------------                     \nto Lender on demand all reasonable attorneys fees and other costs and expenses\nreasonably incurred by Lender in protecting the Collateral or in exercising\nLender's rights, powers or remedies under this Agreement or the Documents,\ntogether with interest on such sums at the Default Rate from the date when the\ncosts and expenses are incurred until fully paid.  If because of Borrower's\ndefault the Lender consults an attorney regarding the enforcement of any of its\nrights under any Document, or if suit is brought to enforce any Document,\nBorrower promises to pay all costs thereof, including attorneys' fees.  Such\ncosts and attorneys' fees shall include, without limitation, costs and\nattorneys' fees incurred in any appeal, forfeiture proceeding or in any\nproceedings under any present or future federal bankruptcy or state receivership\nlaw.\n\n     14.  Allocation of Proceeds. The (a) proceeds of any sale, (b) proceeds of\n          ----------------------                                                \nany insurance received by Lender under any insurance policy obtained by any\nBorrower hereunder, and (c) any and all other moneys received by Lender with\nrespect to the Documents, the application of which has not elsewhere herein been\nspecifically provided for, shall, except as otherwise specified in any\napplicable Document, be applied as follows\n\n          (i)    first, to the payment of all expenses and charges, including\nexpenses of any sale or retaking, reasonable attorneys' fees, court costs and\nother expenses or advances reasonably made or incurred by Lender, or on Lender's\nbehalf, under the Documents upon an Event of Default, and to the payment of, and\nprovision for adequate indemnity for, any taxes, assessments or liens prior to\nthe lien of Lender;\n\n          (ii)   second, to the payment of all accrued and unpaid interest under\nthe Promissory Notes or New Notes;\n\n          (iii)  third, to the payment of the unpaid principal balance under the\nPromissory Notes or New Note;\n\n          (iv)   fourth, to the payment of all other amounts due to Lender under\nthe Documents; and\n\n          (v)    last, any residue shall be paid to Borrower, or as otherwise\nrequired by law, or, directed by a court having jurisdiction.\n\nIf the proceeds and other sums described in this section 14 are insufficient to\npay in full all amounts due to Lender under the Documents, Borrower shall\nimmediately pay such deficiency to Lender.\n\n     15.  Modifications, Consents and Waivers.  No failure or delay on the part\n          -----------------------------------                                  \nof Lender in exercising any power or right hereunder or under the Promissory\nNotes or New Notes or under any other Document shall operate as a waiver\nthereof, nor shall any single or partial exercise of\n\n                                      -14-\n\n \nany such right or power preclude any other or further exercise thereof or the\nexercise of any other right or power. No amendment, modification or waiver of\nany provision to this Agreement, the Notes or any other Document, nor consent to\nany departure therefrom, shall in any event be effective unless the same shall\nbe in writing and consented to by Lender, and then such amendment, modification,\nwaiver or consent shall be effective only in the specific instance and for the\npurpose for which given. No notice to or demand on Borrower in any case shall\nentitle Borrower to any other or further notice or demand in similar or other\ncircumstances.\n\n     16.  Notices.  All notices and requests in connection with this Agreement,\n          -------                                                              \nthe Promissory Notes, the New Note or any other Document shall be in writing and\nmay be given by personal delivery, registered or certified mail, telegram,\nfacsimile or telex addressed as follows:\n\n                       \n          to Borrower:             Inktomi Corporation                        \n                                   1900 South Norfolk Street, Suite 110       \n                                   San Mateo, California 94403                \n                                                                              \n                                   Attn:  Chief Financial Officer             \n                                                                              \n                                   and to:                                    \n                                                                              \n                                   Inktomi Corporation                        \n                                   1900 South Norfolk Street, Suite 110       \n                                   San Mateo, California 94403                \n                                   Attn:  General Counsel                     \n                                                                              \n                                                                               \n          to Lender:               Microsoft Corporation\n                                   One Microsoft Way                          \n                                   Redmond, WA  98052-6399                    \n                                                                              \n                                   Attn:  Shirish Nadkarni                    \n                                                                              \n                                   and to:                                    \n                                                                              \n                                   Microsoft Corporation                      \n                                   One Microsoft Way, Building 8              \n                                   Redmond, WA  98052-6399                     \n \n                                   Attn: Law &amp; Corporate Affairs, U.S. Legal\n\nor to such other address as the party to receive the notice or request shall\ndesignate by notice to the other.  The effective date of any notice or request\nshall be five (5) days from the date on which it is sent by the addresser if\nmailed, or when delivered to a telegraph company, properly addressed as above\nwith charges prepaid, or when telexed, sent by facsimile or personally\n\n                                      -15-\n\n \ndelivered.  Borrowers hereby agree that such notice shall be deemed to meet any\nrequirements of reasonable notice contained in the UCC.\n\n     17.  Costs and Expenses of Perfecting Security Interests and other Rights.\n          --------------------------------------------------------------------  \nBorrower shall pay in a timely manner all costs and expenses incurred by Lender,\nincluding the reasonable fees and expenses of legal counsel, in connection with\nthe approval, preparation, negotiation, filing, or recording of any financing\nstatements, pledge agreements, waivers, subordination agreements, and\nassignments (as well as any amendments or extensions thereto) reasonably\nrequired to protect or perfect Lender's interest in the Collateral or any other\nrights granted by the Documents.\n\n     18.  Survival of Covenants.  All covenants, agreements, representations and\n          ---------------------                                                 \nwarranties made by Borrower hereunder shall survive the execution and delivery\nof this Agreement and the disbursement of any Advances made pursuant to this\nAgreement.  All statements contained in certificates or other instruments\ndelivered by Borrower pursuant to this Agreement shall constitute\nrepresentations and warranties made by Borrower hereunder, as the case may be.\n\n     19.  Binding Effect and Assignment.  This Agreement, the Promissory Notes\n          -----------------------------                                       \nand all other Documents shall be binding upon and inure to the benefit of\nBorrower and Lender and their respective successors and assigns, except that,\nsubject to Exhibit D hereto, Borrower may not assign or transfer its rights\nhereunder, or delegate its obligations hereunder, without the prior written\nconsent of Lender, which may be withheld in Lender's sole and absolute\ndiscretion. From and after any assignment, transfer or delegation of obligation\nby Lender of its interest hereunder, Lender shall be released from all liability\nto Borrower hereunder arising after the date of such assignment, transfer or\ndelegation of obligation; provided, however, that any assignee of Lender shall\nexpressly assume all of the obligations of Lender hereunder. For purposes of\nthis Agreement, an \"transfer\" under this Section shall be deemed to include,\nwithout limitation, the following: (a) a merger or any other combination of an\nentity with another party (other than a reincorporation of Inktomi from the\nState of California to the State of Delaware), whether or not the entity is the\nsurviving entity; (b) any transaction or series of transactions whereby a third\nparty acquires direct or indirect power to control the management and policies\nof an entity, whether through the acquisition of voting securities, by contract,\nor otherwise; (c) in the case of Inktomi, the sale or other transfer of\nInktomi's search engine business or any other substantial portion of Inktomi's\nassets (whether in a single transaction or series of transactions), or (d) the\ntransfer of any rights or obligations in the course of a liquidation or other\nsimilar reorganization of an entity (other than a reincorporation of Inktomi\nfrom the State of California to the State of Delaware).\n\n     20.  Headings. Article and paragraph headings used in this Agreement are\n          --------                                                            \nfor convenience of reference only and shall not affect the construction of this\nAgreement.\n\n     21.  Severability. The unenforceability or invalidity of any provision or\n          ------------                                                         \nprovisions of this Agreement, the Promissory Notes, the New Note, or any other\nDocument shall not render any other provision or provisions hereof or thereof\nunenforceable or invalid. If any rate of \n\n                                      -16-\n\n \ninterest provided for herein is greater than that permitted under applicable\nlaw, such rate shall be automatically reduced to be the maximum permitted by\nlaw.\n\n     22.  Additional Documents.  Borrower shall at Lender's request, from time\n          --------------------                                                \nto time, at Borrower's sole cost and expense, execute, re-execute, deliver and\nredeliver any and all documents, and do and perform such other and further acts,\nas may reasonably be required by Lender to enable Lender to perfect, preserve\nand protect Lender's security interest in the Collateral and Lender's and\nLender's rights and remedies under this Agreement or granted by law and to carry\nout and effect the intents and purposes of this Agreement.\n\n     23.  Integration. This Agreement and the other Documents shall constitute\n          -----------                                                          \nthe entire agreement between the parties hereto with respect to the subject\nmatter of this Loan Agreement and shall supersede all other agreements, written\nor oral, with respect thereto.  In the event of any conflict between this\nAgreement and the other Documents, the provisions of this Agreement shall\ncontrol.\n\n     24.  Counterparts. This Agreement may be executed in any number of\n          ------------                                                  \ncounterparts, each of which shall be deemed an original if fully executed, but\nall of which shall constitute one and the same document.\n\n     25.  Governing Law. This Agreement shall be governed by and construed in\n          -------------                                                       \naccordance with the laws of the state of Washington.\n\n     26.  Confidentiality.\n          --------------- \n\n          A.   The parties hereby agree that all terms and conditions of that\ncertain Microsoft Corporation Non-Disclosure Agreement between them dated March\n18, 1997, shall govern the disclosure of confidential and proprietary\ninformation made under this Agreement. In this connection, the parties hereby\nagree that the terms of this Agreement and any information provided to Lender\nhereunder shall be treated as confidential in accordance with the terms of said\nNon-Disclosure Agreement.\n\n          B.   Without having first sought and obtained Lender's written\napproval (which Lender may withhold in its sole and absolute discretion),\nBorrower shall not, directly or indirectly, (i) trade upon this transaction or\nany aspect of Borrower's relationship with Lender, or (ii) otherwise deprecate\nMicrosoft technology.\n\n          C.   Neither party will issue any press release or make any public\nannouncement(s) relating in any way whatsoever to this Agreement or the\nrelationship established by this Agreement without the express prior written\nconsent of the other party. However, the parties acknowledge that this\nAgreement, or portions thereof, may be required under applicable law to be\ndisclosed, as part of or an exhibit to a party's required public disclosure\ndocuments. If either party is advised by its legal counsel that such disclosure\nis required, it will notify the other in writing and the parties will jointly\nseek confidential treatment \n\n                                      -17-\n\n \nof this Agreement to the maximum extent reasonably possible, in documents\napproved by both parties and filed with the applicable governmental or\nregulatory authorities.\n\nORAL COMMITMENTS.  NOTICE IS HEREBY GIVEN THAT ORAL AGREEMENTS OR ORAL\n----------------                                                      \nCOMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT\nOF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe day and year first above written.\n\n\n\n\nLender:                                      Borrower:\n\n\n\nMicrosoft Corporation, a Washington          Inktomi Corporation, a California \ncorporation                                  corporation  \n \n \n    \/s\/ Laura Jennings                           \/s\/ David C. Peterschmidt\nBy __________________________                By __________________________\n\n       Vice President                                  CEO\n Its ______________________                     Its ______________________\n \n          July 27, 1997                               July 24, 1997\nDate: ____________________                   Date: ____________________\n \n\n                                      -18-\n\n \n                                   EXHIBIT A\n                                   ---------\n\n\n                                PROMISSORY NOTE\n                                ---------------\n\n\nUS$_________________                                         Seattle, Washington\n                                                                _________, 199__\n\n\nFOR VALUE RECEIVED, the undersigned, INKTOMI CORPORATION (\"Maker\"), hereby\npromises to pay to the order of MICROSOFT CORPORATION (\"Lender\"), at such place\nas Lender may designate in writing from time to time, the principal sum of\n___________________ and No\/100 United States Dollars (US$________________)\ntogether with interest and costs as herein provided.\n\nInterest.  The outstanding principal balance of the Loan shall bear interest at\n--------                                                                       \nthe rate of ____ percent (___%) per annum. All computations of interest shall be\nbased on a 360-day year for the actual number of days passed.\n\nTerm\/Note Maturity Date.  The term of this Note shall be three (3) years.  The\n-----------------------                                                       \nNote Maturity Date shall be __________________, 200_.\n\nLoan Agreement.  This Note is given pursuant to the terms and conditions of the\n--------------                                                                 \nLoan Agreement, dated as of ____________, 1997 between Maker and Lender (the\n\"Loan Agreement\").  Capitalized terms not otherwise defined herein shall have\nthe meaning given to them in the Loan Agreement.\n\nPayments of Principal and Interest.  Maker shall make monthly principal and\n----------------------------------                                         \ninterest payments of ___________________ on the first day of each month during\nthe term of this Note.  Maker shall pay all remaining principal and accrued\ninterest on or before the Note Maturity Date.\n\nPrepayment.  Maker may repay all or any portion of the amount due under this\n----------                                                                  \nNote without premium or penalty.\n\nEvents of Default; Acceleration.  Upon occurrence of an Event of Default, at the\n-------------------------------                                                 \noption of Lender the entire outstanding principal, interest and costs hereunder\nshall be immediately due and payable and shall thereafter bear interest at a\nrate equal to eighteen percent (18%) per annum (the \"Default Rate\"), until\npayment in full of all amounts due to Lender.  Notwithstanding the foregoing,\nthe interest paid under this Note shall never be greater than the maximum rate\nof interest permitted under applicable law.\n\nLiability and Waiver.  Maker hereby waives diligence, presentment, demand,\n--------------------                                                      \nprotest and notice of any kind whatsoever.  The non-exercise by Lender of its\nrights hereunder in any particular instance shall not constitute a waiver\nthereof in that or any subsequent instance.\n\n                                      -19-\n\n \nCosts of Collection.  Maker, together with all sureties, endorsers and\n-------------------                                                   \nguarantors of this Note, jointly and severally promise to pay: (a) all costs and\nexpenses incurred by Lender, including without limitation attorneys' fees, in\nthe event that Lender consults an attorney regarding a default by Borrower, even\nthough suit is not instituted; (b) attorneys' fees, and all other costs,\nexpenses and fees incurred by Lender, including costs on appeal, in the event\nthat suit is instituted on this Note; (c) all costs and expenses provided for in\nthe Loan Agreement or in any other instrument given as security for this Note\nand\/or incurred by or on behalf of Lender in connection with collecting or\notherwise enforcing any right of Lender under this Note, the Loan Agreement or\nany other instrument given as security for this Note; and (d) all costs and\nexpenses, including, without limitation, attorneys' fees, incurred by Lender in\nconnection with any bankruptcy, forfeiture, insolvency or reorganization\nproceeding or receivership in which Maker is involved, including, without\nlimitation, those incurred in making any appearances in any such proceeding or\nin seeking relief from any stay or injunction issued in or arising out of any\nsuch proceeding.\n\nNOTICE.  NOTICE IS HEREBY GIVEN THAT ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN\n------                                                                          \nMONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT\nENFORCEABLE UNDER WASHINGTON LAW.\n\nApplicable Law.  This Note shall be governed by and construed in accordance with\n--------------                                                                  \nthe laws of the State of Washington.\n\n                                  Maker:\n\n                                  Inktomi Corporation, a California corporation \n \n \n                                  By _____________________________\n                                     Its _________________________\n\n                                      -20-\n\n \n                                   Exhibit B\n                                   ---------\n                                        \n                              Notice of Borrowing\n                              -------------------\n\n\nTo:  Microsoft Corporation\n     One Microsoft Way\n     Redmond, Washington 98052-6399\n     ATTN: Shirish Nadkarni\n\n\nThe undersigned, INKTOMI CORPORATION (\"Inktomi\"), hereby refers to the Software\nHosting Agreement and Loan Agreement, both dated July __, 1997, and hereby\nrequests to borrow the sum of $__________ pursuant to said Loan Agreement and\nthat such funds be sent by wire transfer to the account specified in the Loan\nAgreement.\n\nPursuant to said Software Hosting Agreement, you and Inktomi agreed, on or about\n_________________________, that the Microsoft Search Engine would be increased\nto accommodate up to ______________ hits per day, and that Inktomi would\npurchase __________ new Hosting Servers to satisfy such capacity requirement.\nInktomi certifies that all amounts loaned by you in response to this request\nwill be used only to purchase __________ new Hosting Servers for the cluster\nservicing the Microsoft Search Engine.\n\nInktomi further certifies that as of the date hereof: (i) all representations\nand warranties made by Inktomi under said Loan Agreement remain true; (ii)\nInktomi is in full compliance with all of its affirmative covenants under said\nLoan Agreement; and (iii) no event has occurred and is continuing which\nconstitutes an Event of Default under said Loan Agreement.\n\nAll capitalized terms used in this Notice will have the meanings ascribed to\nthem under said Loan Agreement or Software Hosting Agreement (whichever is\napplicable).\n\nINKTOMI CORPORATION\n\n\nBy: _________________________\n\nPrinted Name: _________________________\n\nPrinted Title: _________________________\n\nDate: _________________________\n\n                                      -21-\n\n \n                                   EXHIBIT C\n                                   ---------\n\n                                PROMISSORY NOTE\n                                ---------------\n\n\n\nUS$_________________                                         Seattle, Washington\n                                                                _________, 199__\n\n\nFOR VALUE RECEIVED, the undersigned, INKTOMI CORPORATION (\"Maker\"), hereby\npromises to pay to the order of MICROSOFT CORPORATION (\"Lender\"), at such place\nas Lender may designate in writing from time to time, the principal sum of\n___________________ and No\/100 United States Dollars (US$________________)\ntogether with interest and costs as herein provided.\n\nInterest.  The outstanding principal balance of the Loan shall bear interest at\n--------                                                                       \nthe rate of ____ percent (___%) per annum. All computations of interest shall be\nbased on a 360-day year for the actual number of days passed.\n\nTerm\/Note Maturity Date. The term of this Note shall be two (2) years. The\n-----------------------                                                     \nNote Maturity Date shall be __________________, 200_.\n\nLoan Agreement.  This Note is given pursuant to the terms and conditions of the\n--------------                                                                 \nLoan Agreement, dated as of ____________, 1997 between Maker and Lender (the\n\"Loan Agreement\").  Capitalized terms not otherwise defined herein shall have\nthe meaning given to them in the Loan Agreement.\n\nPayments of Principal and Interest. Maker shall make monthly principal and\n----------------------------------                                         \ninterest payments of ___________________ on the first day of each month during\nthe term of this Note. Maker shall pay all remaining principal and accrued\ninterest on or before the Note Maturity Date.\n\nPrepayment. Maker may repay all or any portion of the amount due under this\n----------                                                                  \nNote without premium or penalty.\n\nEvents of Default; Acceleration.  Upon occurrence of an Event of Default, at the\n-------------------------------                                                 \noption of Lender the entire outstanding principal, interest and costs hereunder\nshall be immediately due and payable and shall thereafter bear interest at a\nrate equal to eighteen percent (18%) per annum (the \"Default Rate\"), until\npayment in full of all amounts due to Lender.  Notwithstanding the foregoing,\nthe interest paid under this Note shall never be greater than the maximum rate\nof interest permitted under applicable law.\n\nLiability and Waiver.  Maker hereby waives diligence, presentment, demand,\n--------------------                                                      \nprotest and notice of any kind whatsoever.  The non-exercise by Lender of its\nrights hereunder in any particular instance shall not constitute a waiver\nthereof in that or any subsequent instance.\n\n                                      -22-\n\n \nCosts of Collection.  Maker, together with all sureties, endorsers and\n-------------------                                                   \nguarantors of this Note, jointly and severally promise to pay: (a) all costs and\nexpenses incurred by Lender, including without limitation attorneys' fees, in\nthe event that Lender consults an attorney regarding a default by Borrower, even\nthough suit is not instituted;  (b) attorneys' fees, and all other costs,\nexpenses and fees incurred by Lender, including costs on appeal, in the event\nthat suit is instituted on this Note;  (c) all costs and expenses provided for\nin the Loan Agreement or in any other instrument given as security for this Note\nand\/or incurred by or on behalf of Lender in connection with collecting or\notherwise enforcing any right of Lender under this Note, the Loan Agreement or\nany other instrument given as security for this Note; and (d) all costs and\nexpenses, including, without limitation, attorneys' fees, incurred by Lender in\nconnection with any bankruptcy, forfeiture, insolvency or reorganization\nproceeding or receivership in which Maker is involved, including, without\nlimitation, those incurred in making any appearances in any such proceeding or\nin seeking relief from any stay or injunction issued in or arising out of any\nsuch proceeding.\n\nNOTICE.  NOTICE IS HEREBY GIVEN THAT ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN\n------                                                                          \nMONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT\nENFORCEABLE UNDER WASHINGTON LAW.\n\nApplicable Law.  This Note shall be governed by and construed in accordance with\n--------------                                                                  \nthe laws of the State of Washington.\n\n\n                                  Maker:\n\n                                  Inktomi Corporation, a California corporation\n \n \n \n                                  By ___________________________\n                                     Its _________________________\n\n                                      -23-\n\n \n                                   EXHIBIT D\n                                   ---------\n\n                              Transfer of Inktomi\n                              -------------------\n                                        \nIf Inktomi requests Microsoft's consent to a transfer as described in clause (a)\nof Section 19 of this Loan Agreement to which this Exhibit D is appended, and\nMicrosoft reasonably withholds its consent to such transfer (an \"Unconsented\nTransfer\"), then Inktomi will nevertheless have the right to transfer this\nAgreement in connection with its proposed Unconsented Transfer subject to the\nfollowing conditions precedent to the Unconsented Transfer:\n\n(i)    Inktomi, at its sole cost and expense, and without any financing supplied\nby Microsoft, will create a separate cluster of Hosting Servers for Microsoft\nrequired to service Microsoft's reasonably anticipated needs for a period of\ntwelve months after the commencement of operation of such new and relocated\ncluster (provided however that Microsoft will purchase, or fund (in accordance\nwith this Loan Agreement) Inktomi's purchase of (whichever Microsoft elects) any\nnew hosting servers beyond the Hosting Servers purchased by Inktomi under the\nSoftware Hosting Agreement of even date herewith necessary to service\nMicrosoft's reasonably anticipated needs as set forth above);\n\n(ii)   Inktomi will relocate, at its sole cost and expense (including, without\nlimitation, indemnifying Microsoft and holding it harmless against any and all\nTaxes that arise as a direct or indirect result of the relocation of the Hosting\nServers), all Hosting Servers referred to in clause (i) to a location designated\nby Microsoft, in its sole discretion;\n\n(iii)  Inktomi, at its sole cost and expense, will provide training to Microsoft\npersonnel to the extent requested by Microsoft, to enable such personnel to use\nand maintain the Microsoft Search Engine, and to create enhancements thereto,\nwith reasonable competence (all as determined by Microsoft in its sole\ndiscretion);\n\n(iv)   Inktomi will grant to Microsoft an irrevocable, non-exclusive, royalty-\nfree license to use the Product (and all required underlying Inktomi Technology)\nsolely in connection with Microsoft's operation of the Microsoft Search Engine\n(which license shall include the right to create enhancements and other\nderivative works based thereon for use in conjunction therewith) for such period\nas Microsoft may require to transition its search engine services to non-Inktomi\ntechnology (the \"Transition Period\"), and Inktomi will waive all royalties\notherwise payable pursuant to the Software Development Agreement and\/or the\nInformation Services Agreement of even date herewith; for the purposes of this\nclause (iv), the Transition Period will commence at such time as Microsoft\nassumes control over said separate cluster and begins itself operating the\nMicrosoft Search Engine, and will continue thereafter for eighteen months (18)\nor until the termination of said Software Development Agreement and Information\nServices Agreement (whichever is longer);\n\n                                      -24-\n\n \n(v)    Inktomi will direct the Escrow Agent to release to Microsoft all\nConfidential Materials held by the Escrow Agent, subject to Microsoft's\nagreement to use such Confidential Materials only in connection with its\nlicensed rights under clause (iv) above;\n\n(vi)   Inktomi will agree to reimburse Microsoft for all reasonable costs\nincurred by Microsoft in transitioning its search engine to non-Inktomi\ntechnology (whether created by Microsoft or by a third party); and\n\n(vii)  Inktomi will cause the applicable proposed assignee, transferee or\ndelegatee of obligation of this Agreement to assume, jointly and severally with\nInktomi, all of Inktomi's obligations hereunder.\n\nMicrosoft will cooperate with Inktomi and use its reasonable best efforts so as\nto enable Inktomi to satisfy the foregoing conditions precedent in a timely\nmanner. Upon satisfaction of the foregoing conditions precedent, said Software\nHosting Agreement shall be deemed terminated pursuant to Section 10.1 thereof.\nUpon expiration of the Transition Period, all rights granted to Microsoft to use\nthe Product (other than Microsoft Technology, Joint Derivative Technology and\nthe Microsoft Derivative Technology) and\/or any Inktomi Technology under the\ntransitional license referred to in clause (iv) or otherwise shall cease, and\nMicrosoft shall immediately return to Inktomi all Confidential Materials (and\nall copies thereof), provided however that, notwithstanding any provision of the\nAncillary Agreements to the contrary, the undertaking by Inktomi to indemnify\nMicrosoft and hold it harmless against Taxes as provided in clause (ii) above\nshall survive any such terminations.\n\nCapitalized terms used in this Exhibit D and not otherwise defined in this Loan\nAgreement shall be defined in the same manner as in the applicable agreement\namong the following agreements between Lender and Borrower of even date\nherewith: Software Development Agreement; Information Services Agreement; and\/or\nSoftware Hosting Agreement.\n\n                                      -25-\n\n \n                                   EXHIBIT E\n                                   ---------\n\n\n                    Inktomi Depository Account Information\n                    --------------------------------------\n\nAll Advances should be sent to Borrower's account by wire transfer as follows,\nunless Borrower notifies Lender in writing signed by a Responsible Officer that\nAdvances henceforth should be sent to a different account:\n\n     Name of Bank:       Silicon Valley Bank\n\n     Address of Bank:    P.O. Box 2607\n                         Santa Clara, CA  95055-2607\n\n     Routing Number:     [*]\n\n     Account Number:     [*]\n\n                                      -26-\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7859,8221],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9560,9567],"class_list":["post-41112","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-inktomi-corp","corporate_contracts_companies-microsoft-corp","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41112","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41112"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41112"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41112"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41112"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}