Exhibit 10.12
RECORDING REQUESTED BY,
AND WHEN RECORDED, MAIL TO:
SANWA BANK CALIFORNIA
MOUNTAIN VIEW OFFICE
601 SHOWERS DRIVE
P.O. BOX 670
MOUNTAIN VIEW, CA 94040
ATTN:
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DEED OF TRUST (NON-CONSTRUCTION) & ASSIGNMENT OF RENTS
THIS DEED OF TRUST (the "Deed of Trust") is made this 22nd day of August, 1994,
by and between ISE LABS, INC., a California Corporation (the "TRUSTOR") whose
address is 2095 Ringwood Avenue, San Jose, CA 95131, FIRST BANCORP, a California
corporation (the "TRUSTEE") and SANWA BANK CALIFORNIA, a California corporation
(the "BENEFICIARY").
WITNESSETH
THAT THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE TRUSTEE, its
successors and assigns, IN TRUST, WITH POWER OF SALE:
All that property now or hereafter acquired in Santa Clara County, State of
California, described in the attached Exhibit "A" (herein referred to as the
"Property");
TOGETHER WITH, and including, without limitation: all of the buildings and
improvements now or hereafter erected on the Property; all of the easements,
rights, rights-of-way, privileges, franchises and appurtenances now or hereafter
belonging to, or in any way appertaining, or in any way being a means of access,
to said Property; all rents, issues, profits, royalties, revenue, income and
other benefits of or arising from the use or enjoyment of all or any portion of
the Property or the buildings and improvements now or hereafter erected thereon
(subject however to the right, reserved to the TRUSTOR, to collect, receive and
retain such rents, issues, profits, royalties, revenue, income and other
benefits prior to any default hereunder or under the note referenced below or
other evidence of debt secured hereby); all gas, oil, water and mineral rights,
profits and stock now or hereafter derived from, appurtenant to, or pertaining
to the Property (and any and all shares of stock evidencing the same); all crops
now or hereafter grown on the Property; and all equipment, machinery, appliances
and fixtures (including replacements and additions thereto) now or hereafter
erected thereon; and
All of the foregoing shall be deemed to be and shall remain a part of the
Property encumbered by this Deed of Trust, and all of the foregoing, together
with the Property, are hereinafter referred to as the "Premises";
FOR THE PURPOSE OF SECURING, in such order of priority as the BENEFICIARY, in
its absolute discretion, may determine:
1. Payment of an indebtedness in the principal sum of $2,520,000.00 as
evidenced by a certain promissory note dated August 22, 1994, executed by ISE
LABS, INC. and payable to the BENEFICIARY or order (herein referred to as the
"Note"), and any and all amendments, modifications, extensions or renewals of
the Note (whether evidenced by the Note or otherwise); together with the payment
of interest on such indebtedness and the payment of all other sums (with
interest as therein provided) according to the terms of the Note (and any and
all amendments, modifications, extensions, or renewals thereof);
2. Payment of all other sums, with interest as herein provided, becoming due or
payable, under the provisions of this Deed of Trust, to the TRUSTEE or the
BENEFICIARY;
3. Due, prompt and complete observance, performance and discharge of each and
every condition, obligation, covenant and agreement contained in this Deed of
Trust, the Note and any document or instrument modifying or amending this Deed
of Trust or the Note or otherwise evidencing, securing or pertaining to the
indebtedness evidenced by the Note;
4. Payment of such additional sums (with interest thereon) as may hereafter be
borrowed from the BENEFICIARY, or its successors or assigns, by the TRUSTOR or
the then record owner of the Premises and evidenced by one or more instruments
(other than the Note) which are by their terms secured by this Deed of Trust.
TO PROTECT AND MAINTAIN THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR AGREES:
1. Payment of Obligations When Due. The TRUSTOR shall promptly pay, when due
and in lawful money of the United States of America which shall be legal tender
for public and private debts at the time of payment, each and every indebtedness
and obligation for which this Deed of Trust has been given as security as
provided hereinabove; and the TRUSTOR shall promptly perform, observe and
discharge each and every condition, obligation, covenant and agreement for which
this Deed of Trust has been given as security provided herein.
2. Maintenance of Premises. The TRUSTOR shall maintain and keep the Premises in
good condition and repair and shall not commit or permit waste of the whole or
part of any item consisting of a part of the Premises. The TRUSTOR shall not
alter, remove or demolish any buildings, improvements, machinery, equipment,
appliances or fixtures nor or hereafter on the Property without the prior
written consent of the BENEFICIARY.
The TRUSTOR shall promptly repair, replace or restore (in good, workmanlike
manner and in compliance with all laws, ordinances, governmental rules and
regulations, easements, agreements, covenants, conditions and restrictions
affecting the Premises) all buildings, improvements, machinery, equipment,
appliances
and fixtures now or hereafter on the Property, in the event of damage to or
destruction of such buildings, improvements, machinery, equipment, appliances
and fixtures.
The TRUSTOR shall not commit, suffer or permit any act upon the Premises in
violation of law, ordinance, governmental rules and regulations, easements,
agreements, covenants, conditions and restrictions affecting the Premises or use
of the Premises.
The TRUSTOR shall cultivate, irrigate, fertilize, fumigate, spray, prune and do
any other acts which from the character or use of the Property may be reasonably
necessary.
In the performance of all acts required of the TRUSTOR under the above
paragraphs describing maintenance of the Premises, the TRUSTOR shall promptly
pay when due all expenses incurred therefor and shall promptly pay, discharge or
otherwise release all claims for labor performed and materials furnished
therefor.
3. Environmental Compliance.
A. Definitions. For purposes of this section, the following terms are
defined as follows:
(i) "Environmental Claims" shall mean all claims, however asserted, by
any governmental authority or other person alleging potential liability
or responsibility for violation of any Environmental Law or for release
or injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural
resources damage, or otherwise alleging liability or responsibility for
damages (punitive or otherwise), cleanup, removal, remedial or response
costs, restitution, civil or criminal penalties, injunctive relief, or
other type of relief, resulting from or based upon (i) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden,
accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Materials at, in or from the
Property, or (ii) any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
(ii) "Environmental Laws" shall mean all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
governmental authorities, in each case relating to environmental, health,
safety and land use matters; including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the Clean
Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act, the
Toxic Substances Control Act, the Emergency Planning and Community Right-
to-Know Act, the California Hazardous Waste Control Law, the California
Solid Waste Management, Resource, Recovery and Recycling Act, the
California Water Code and the California Health and Safety Code.
(iii) "Hazardous Materials" shall mean all those substances which are
regulated by, or which may form the basis of liability under any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or waste.
B. Environmental Representations and Warranties. The TRUSTOR hereby
represents and warrants that the operations and activities of the TRUSTOR on
or at the Premises comply, and during the term of this Deed of Trust will at
all times comply, in all respects with all Environmental Laws; the TRUSTOR
has obtained licenses, permits, authorizations and registrations required
under any Environmental Law ("Environmental Permits") and necessary for its
ordinary operations on or at the Premises, all such Environmental Permits
are in good standing, and the TRUSTOR is in compliance with all material
terms and conditions of such Environmental Permits; neither the TRUSTOR nor
the Property or operations are subject to any outstanding written order from
or agreement with any governmental authority nor subject to any judicial or
docketed administrative proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Material; there are no Hazardous Materials
or other conditions or circumstances existing, or arising from operations
prior to the date of this Deed of Trust, with respect to the Property that
would reasonably be expected to give rise to Environmental Claims. In
addition, (i) the TRUSTOR does not have or maintain on the Premises any
underground storage tanks which are not properly registered or permitted
under applicable Environmental Laws or which are leaking or disposing of
Hazardous Materials off-site, and (ii) the TRUSTOR has notified all of its
employees of the existence, if any, of any health hazard arising from the
conditions of their employment on or at the Premises and have met all
notification requirements under Title III of CERCLA and all other
Environmental Laws.
C. Environmental Compliance. The TRUSTOR shall:
(i) Conduct its operations on or at the Premises and keep and maintain
the Property in compliance with all Environmental Laws.
(ii) Give prompt written notice to the BENEFICIARY, but in no event
later than 10 days after becoming aware, of the following: (a) any
enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened against the TRUSTOR or any of its
affiliates or the Property pursuant to any applicable Environmental Laws,
(b) all other Environmental Claims in connection with the Property, and
(c) any environmental or similar condition or any real property adjoining
or in the vicinity of the Property that could reasonably be anticipated
to cause such the Property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of the
Property under any Environmental Laws.
(iii) Upon the written request of BENEFICIARY, the TRUSTOR shall submit
to the BENEFICIARY, at the TRUSTOR's sole cost and expense, at reasonable
intervals, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue
identified in any notice required pursuant to this Section.
(iv) At all times indemnify and hold harmless the BENEFICIARY from and
against any and all liability arising out of any Environmental Claims.
4. Insurance. The TRUSTOR shall provide, maintain and keep policies of insurance
(with companies and in form, content, policy limits and terms satisfactory to
the BENEFICIARY, with loss payable to the BENEFICIARY) insuring the Premises
against: fire (with an extended coverage endorsement), public liability, loss of
rents or business interruption, flood damage (if the Property is located in a
flood hazard area and if such insurance is available) and such other hazards and
coverages, including earthquake, as the BENEFICIARY from time to time may
reasonably require.
The TRUSTOR shall promptly pay when due all premiums for such insurance, shall
deliver copies of all such insurance policies, renewals of such policies and
premium receipts therefor to the BENEFICIARY, and shall do all things necessary
to obtain prompt settlement or disposition of any claim or loss covered under
such policies.
All such policies shall name the BENEFICIARY as an additional insured and shall
include such endorsements as the BENEFICIARY shall deem necessary to protect its
interest in the Premises. All such policies shall not be cancelable nor subject
to substantial change without at least thirty (30) days' prior written notice
to, and approval by, the BENEFICIARY, and the BENEFICIARY shall receive at least
thirty (30) days' prior written notice of the termination of any such policy.
Without waiving or curing any default in the performance of any obligation under
this Deed of Trust and/or without waiving notice of any such default, the
BENEFICIARY may, in its absolute discretion: apply the proceeds of such
insurance upon any indebtedness or obligation secured under this Deed of Trust;
and/or, in such order, in such manner and according to such terms and conditions
as the BENEFICIARY may determine, release all or portions of such proceeds to
the TRUSTOR for the repair, replacement, or restoration of the Premises.
5. Payment of Taxes and Assessments. The TRUSTOR shall pay and discharge, at
least ten (10) days prior to delinquency: all taxes, assessments and charges of
every kind and nature (including real personal property taxes); all general and
special assessments, including common area maintenance assessments and
assessments on appurtenant water stock; all levies and all permit, inspection
and license fees; all water and sewer rents, connection fees and charges and all
other public and private charges whether of a like or different nature) imposed
upon or assessed against the TRUSTOR or the Premises, or any part thereof or
upon the revenues, rents, issues, income, or profits thereof or upon the
inventory of goods maintained or stored thereon or therein. The TRUSTOR shall,
within ten (10) days following such payment or discharge and upon the request of
the BENEFICIARY, provide the BENEFICIARY with receipts therefor.
Notwithstanding the foregoing, the TRUSTOR shall have the right to contest the
validity or amount of any such tax, assessment or charge; provided that the
validity or amount thereof is contested diligently and in good faith and
provided further that the TRUSTOR shall protect the Premises against any lien
arising out of any such tax, assessment or charge, or out of any such contest
thereof, by obtaining a bond, in form, substance, amount, and issued by a
surety, satisfactory to the BENEFICIARY.
6. Litigation. The TRUSTOR shall appear in and defend any action or proceeding
purporting to affect the security of this Deed of Trust and/or the rights and/or
powers of the BENEFICIARY and/or the TRUSTEE hereunder, and the TRUSTOR shall
pay all costs and expenses (including costs of evidence of title and attorneys'
fees) in any action or proceeding in which the BENEFICIARY or the TRUSTEE may so
appear and/or in any suit brought by the BENEFICIARY to foreclose this Deed of
Trust, to enforce any obligation secured by this Deed of Trust and/or prevent
the breach thereof.
7. Performance of Obligations by Beneficiary or Trustee. Should the TRUSTOR fail
to make any payment, perform any obligation or do any act set forth in or
secured by this Deed of Trust, the BENEFICIARY or the TRUSTEE (at the request of
the BENEFICIARY), without obligation to do so, without notice to or demand upon
the TRUSTOR and without releasing the TRUSTOR from making such future payments,
performing such future obligations or doing such future acts, may make such
payment, perform such obligation or do such act in such manner and to such
extent as the BENEFICIARY or the TRUSTEE may deem necessary to protect the
security of this Deed of Trust. For any and all such purposes, the BENEFICIARY
and/or the TRUSTEE are authorized to enter upon the Premises, and, if the
Premises consists of agricultural property, the BENEFICIARY and/or the TRUSTEE
are authorized to prepare for harvest, harvest, remove, and sell any crops that
may be growing upon the Premises and apply the proceeds thereof to the
indebtedness secured by this Deed of Trust.
Without limiting the foregoing, the BENEFICIARY or the TRUSTEE may pay,
purchase, contest or compromise any encumbrance, charge or lien which, in the
sole judgment of the BENEFICIARY or the TRUSTEE, appears to be prior or superior
to this Deed of Trust. In exercising any such power, the BENEFICIARY or the
TRUSTEE may pay all necessary expenses incurred therefor and employ legal
counsel and pay its fees.
The TRUSTOR agrees to and shall pay, immediately without demand, all sums so
expended by the BENEFICIARY or the TRUSTEE, with interest, from the date of
expenditure, at a rate which is three percent (3%) per annum in excess of the
rate otherwise payable on such date according to the terms of the Note.
8. Condemnation. Any Award of damages or other form of compensation awarded in
connection with any condemnation for public use of, or injury to, the Property
and/or the buildings and improvements now or hereafter erected thereon (or any
part thereof) are hereby assigned and shall be paid directly to the BENEFICIARY,
to be used, held, paid, applied or released in the absolute discretion of the
BENEFICIARY and without regard to the adequacy of its security, in the same
manner and with the same effect as provided herein for the disposition of
insurance proceeds. In this regard, the TRUSTOR hereby waives the benefit of any
statute, rule or law which may be contrary thereto, and the TRUSTOR hereby
agrees to execute such further assignments therefor as the BENEFICIARY may
require.
9. Acceptance of Late and Partial Payments. The acceptance by the BENEFICIARY of
the payment of any sum secured by this Deed of Trust after its due date shall
not constitute a waiver of the right to require prompt payment when due of all
other and future sums so secured, or to declare a default as herein provided for
any failure to so pay, or to proceed with foreclosure or sale for any other
default then existing. The acceptance by the BENEFICIARY of the payment of a
portion of any sum secured by this Deed of Trust at such time that such sum in
its entirety is due and payable shall neither cure nor excuse the default caused
by failure to pay the whole of such installment or affect any notice of default
recorded prior to such acceptance, unless such notice of default is expressly
revoked in writing by the BENEFICIARY. Such acceptance shall not constitute a
waiver of the BENEFICIARY's rights to require full payment when due of all other
and future sums so secured.
10. General Rights of the Beneficiary and the Trustee. At any time or from time
to time, without liability therefor, without notice and without affecting the
liability of any person (including the TRUSTOR) for the payment of any
indebtedness, or the performance of any obligation secured by this Deed of Trust
or the lien of this Deed of Trust on the Premises or any portion thereof:
A. The BENEFICIARY may: (i) release any person liable for the payment
of any such indebtedness or for the performance of any such obligation;
(ii) extend the time or otherwise alter the terms of payment of any such
indebtedness; (iii) accept additional security therefor of any kind,
including deeds of trust and mortgages; and/or (iv) alter, substitute
and/or release any portion of the Premises securing such indebtedness;
B. The TRUSTEE may: (i) upon the written consent of the BENEFICIARY,
consent to the making of any map or plot of the Property; (ii) join in
granting any easements or creating any restrictions on the Property and/or
(iii) join in any extension agreement or any agreement subordinating the
lien or charge of this Deed of Trust.
11. Reconveyance of this Deed of Trust. Upon written request of the BENEFICIARY
stating that all indebtedness secured by this Deed of Trust has been paid, upon
surrender of this Deed of Trust and all instruments or documents evidencing such
indebtedness to the TRUSTEE for cancellation and retention and upon payment to
the TRUSTEE of its fees, costs and expenses incurred or to be incurred thereby,
the TRUSTEE shall reconvey, without warranty, the Premises then held hereunder.
The recitals in such reconveyance of any matters or facts shall be conclusive
proof of the truthfulness thereof. The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto".
12. Assignment of Rents. The TRUSTOR absolutely and unconditionally hereby
assigns, transfers, conveys, and sets over to the BENEFICIARY all of the rents,
royalties, issues, profits, revenue, income, and other benefits of the Premises
arising from the use or enjoyment of all or any portion thereof or from any
lease or agreement pertaining thereto (hereinafter collectively referred to as
the "Rents"); reserving to the TRUSTOR only the right, prior to any default by
the TRUSTOR hereunder, to collect, receive and retain the Rents as they become
due and payable, but not otherwise. The TRUSTOR shall, at the request of the
BENEFICIARY, execute such further assignments to the BENEFICIARY of any or all
such leases, agreements and Rents as the BENEFICIARY may require.
Upon any such default by the TRUSTOR hereunder, the BENEFICIARY may, at any time
and without notice (either in person, by agent or representative, or by a
receiver appointed by a court) and without regard to the adequacy of any
security for the indebtedness and/or obligations secured by this Deed of Trust:
enter upon and take possession of the Premises or any part thereof, in its own
name or in the name of the TRUSTOR; sue for or otherwise collect the Rents
(including those past due and unpaid) and apply such Rents (less costs and
expenses of operations and collection, including attorneys' fees and expenses)
to the payment of such indebtedness secured under this Deed of Trust in such
order and proportions as the BENEFICIARY in its absolute discretion may
determine. The entering upon and taking possession of the Premises and the
collection and application of the Rents shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
13. Sale by Trustee of the Premises. Upon a default in the payment of any
indebtedness, or the performance of any obligation, secured by this Deed of
Trust, or in the event that any representation, covenant or warranty contained
in this Deed of Trust or in any other document evidencing or securing the loan
for which any
such indebtedness is evidenced shall be or become untrue, the BENEFICIARY may
(without notice to or demand upon the TRUSTOR): declare all indebtedness secured
by this Deed of Trust immediately due and payable; and/or execute and record (or
cause the TRUSTEE to execute and record) a notice of default and election to
cause the Premises to be sold to satisfy the indebtedness and obligations
secured hereby; and/or commence an action to foreclose this Deed of Trust and/or
take any other action permitted by law to enforce its rights and remedies
hereunder as it may deem to be appropriate. Upon the recordation of such notice
of default, the BENEFICIARY shall deposit this Deed of Trust and all notes and
documents evidencing such indebtedness and/or such obligations with the TRUSTEE.
After the lapse of such time as may then be required by law following the
recordation of the notice of default, and after the notice of the sale of the
Premises has been given by the TRUSTEE as then required by law, the TRUSTEE
(without demand on the TRUSTOR) shall sell the Premises at the time and place
fixed in such notice of sale, either as a whole or in separate parcels, and in
such order as the TRUSTEE may determine, at public auction to the highest bidder
for cash in lawful money of the United States of America, payable at the time of
sale. The TRUSTEE may postpone the sale of all or any portion of the Premises by
public announcement at such time and place of sale and from time to time
thereafter may postpone such sale by public announcement at the time and place
fixed by the preceding postponement.
The TRUSTEE shall deliver to the purchaser a deed conveying the Premises (or
such 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.
Any person, including the TRUSTOR, the TRUSTEE, or the BENEFICIARY, may purchase
at such sale.
Upon such sale by the TRUSTEE, and after deducting all costs, expenses, and fees
of the TRUSTEE and of this Trust (including the cost of evidence of title in
connection with the sale), the TRUSTEE shall apply the proceeds from the sale to
the payment of: the indebtedness and obligations secured by this Deed of Trust,
whether evidenced by the Note or otherwise; sums representing advances made or
expenditures made and incurred by, and not then repaid to, the BENEFICIARY or
the TRUSTEE under this Deed of Trust or under any document evidencing or
securing any indebtedness secured hereby, together with accrued interest thereon
at the rate specified in the section of this Deed of Trust entitled "Performance
of Obligations by Beneficiary or Trustee"; all other sums then secured by this
Deed of Trust, together with interest as provided in any document pertaining
thereto; and the remainder, if any, to the person or persons legally entitled
thereto.
If this Deed of Trust or the Note secured hereby provides for any charge for
prepayment of any indebtedness secured hereby, the TRUSTOR agrees to pay said
charge if any of such indebtedness shall be paid prior to the normal due date
thereof stated in such Note or in this Deed of Trust; this result shall obtain
even if and notwithstanding the TRUSTOR shall have defaulted in the payment
thereof or in the performance of any obligation hereunder, and the BENEFICIARY,
by reason of such default, shall have declared all indebtedness secured hereby
immediately due and payable.
14. Acceleration of Indebtedness Upon Sale of the Premises. In the event the
TRUSTOR, or any successor in interest to the TRUSTOR in the Premises secured by
this Deed of Trust, sells, conveys, alienates, assigns, transfers, or disposes
of the Premises, or any part thereof or any interest therein, or becomes
divested of its title or any interest therein in any manner or way, or enters
into a master lease covering all or any portion thereof or an undivided interest
therein, whether voluntary, involuntary, or otherwise, or enters into an
agreement to do so, without the prior written consent of the BENEFICIARY, then
the BENEFICIARY may, at its election, declare the Note and such other
indebtedness and obligations secured by this Deed of Trust, irrespective of the
maturity date specified in the Note or in any written agreement pertaining to
the Note and/or such other indebtedness and obligations, immediately due and
payable without notice. No waiver of this right shall be effective unless in
writing. Consent by the BENEFICIARY to one such transaction shall not constitute
or be deemed to be a waiver of the rights of the BENEFICIARY provided herein, or
a waiver of the requirement of the prior written consent of the BENEFICIARY, as
to future or succeeding transactions.
15. Acceleration of Indebtedness Upon Change in Ownership, Control, or
Membership of Trustor. If the TRUSTOR is a corporation, trust, limited or
general partnership, or joint venture, and there shall occur a sale, conveyance,
transfer, disposition or encumbrance (whether voluntary or involuntary, or
otherwise), or should an agreement be entered into to do so, with respect to
more than ten percent (10%) of the issued and outstanding capital stock of the
TRUSTOR (if a corporation), of the beneficial interest of the TRUSTOR (if a
trust), or of any general or limited partnership or joint venture interest (if
the TRUSTOR is a general or limited partnership or joint venture), or if there
shall occur a change in any general partner or joint venturer, or a change
affecting the ownership, control, or membership of the TRUSTOR (if the TRUSTOR
is a general or limited partnership or a joint venture), then the BENEFICIARY
may, at its election, declare the Note and such other indebtedness and
obligations secured by this Deed of Trust, irrespective of the maturity date
specified in the Note or in any written agreement pertaining to the Note and/or
such other indebtedness and obligations, immediately due and payable, without
notice, unless the BENEFICIARY shall have given its prior written consent
thereto. Consent to one such transaction shall not constitute or be deemed to be
a waiver of the right to require such consent as to future or succeeding
transactions.
16. Acceleration of Indebtedness Upon an Event of Bankruptcy or Insolvency. The
TRUSTOR agrees that the BENEFICIARY may, at its election, declare the Note and
such other indebtedness and obligations secured by this Deed of Trust,
irrespective of the maturity date specified in the Note or in any written
agreement pertaining to the Note and/or such other indebtedness and obligations,
immediately due and payable, without notice: if any proceeding under the
Bankruptcy Code, or under any present or future federal, state or other statute,
law or regulation pertaining to bankruptcy, insolvency or other relief for
debtors shall be instituted by or against the TRUSTOR or any other person who
may be liable (by way of guaranty, assumption, endorsement or otherwise) upon
the Note and/or such other indebtedness and obligations secured hereby; and/or
if a receiver, trustee or custodian shall be appointed for the TRUSTOR or such
other person shall make an assignment for the benefit of creditors and if such
proceeding or receiver, trustee or custodian shall not be dismissed, or such
assignment shall not be voided, within sixty (60) days of such institution,
appointment or making.
17. Successor Trustees. The BENEFICIARY, acting alone, may, from time to time,
by instrument in writing, substitute a successor or successors to any Trustee
named herein or acting hereunder. Such instrument, executed, acknowledged and
recorded in the manner required by law, shall be conclusive proof of proper
substitution of such successor Trustee or Trustees, who shall (without
conveyance from the preceding Trustee) succeed to all of the title, estate,
rights, powers and duties of such preceding Trustee. Such instrument must
contain the name of the original Trustor, Trustee and Beneficiary hereunder, the
book and page where this Deed of Trust is recorded and the name and address of
the new Trustee. If a notice of default has been recorded, this power of
substitution cannot be exercised until after the costs, fees, and expenses of
the then acting Trustee have been paid to such Trustee, who shall endorse
receipt thereof upon such instrument or substitution.
18. Cumulative Remedies; Additional Security. No remedy herein conferred upon or
reserved to the parties to this Deed of Trust is intended to be exclusive of any
other remedy provided herein or by law. Each such remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the TRUSTEE
or the BENEFICIARY in the exercising of any right or power accruing upon any
event of default hereunder shall impair such right or power or any other right
or power, nor shall such delay or omission be construed or deemed to be a waiver
of any default or any acquiescence therein.
If there exists additional security for the indebtedness and obligations secured
by this Deed of Trust, the BENEFICIARY, it its election and without limiting or
affecting any of its rights or remedies hereunder, may exercise any of the
rights and remedies to which the BENEFICIARY may be entitled hereunder--either
concurrently with whatever rights or remedies the BENEFICIARY may have in
connection with such other security or in such order and in such manner as the
BENEFICIARY may deem fit--without waiving any rights or remedies with respect to
any other security.
19. Partial Invalidity of this Deed of Trust. In the event any one or more of
the provisions of this Deed of Trust, the Note, or any other document evidencing
the indebtedness and obligations secured hereby shall for any reason be held to
be invalid, illegal and/or unenforceable in any respect, such invalidity,
illegality and/or unenforceability shall not affect any other provision of this
Deed of Trust, the Note, or any such other document, and such other provisions
shall remain binding and
enforceable and shall continue in effect.
20. Application of California Law. This Deed of Trust has been executed and
delivered in the State of California and is to be construed, enforced and
governed according to and by the laws of California.
21. Miscellaneous Provisions.
A. This Deed of Trust applies to, inures to the benefit of and binds all
parties hereto and their respective heirs, legatees, devisees,
administrators, executors, successors and assigns. The term "Beneficiary"
as used herein shall mean the owner and holder, including pledgees, of the
Note or any other indebtedness secured hereby, whether or not named as the
Beneficiary herein.
B. The headings and captions of the paragraphs of this Deed of Trust are
for reference purposes only and shall not be construed or deemed to define
or limit any of the terms and provisions contained thereunder. Whenever in
this Deed of Trust the context so requires, the gender used includes the
masculine, feminine, and/or neuter and the number so used includes the
singular and/or the plural.
C. Any Trustor who is married hereby expressly agrees that recourse may be
had against such person's separate property, but without thereby creating
any lien or charge thereon for any deficiency after sale of the Premises as
herein provided.
D. The pleading of any statute of limitations as a defense to any and all
indebtedness and/or obligations secured by this Deed of Trust is hereby
waived to the fullest extent permissible by law.
E. In the event of the passage, after the date of this Deed of Trust, of
any law deducting from the value of real property, for tax purposes, any
lien or charge thereon, or changing in any way the laws now existing for
the taxation of deeds of trust or indebtedness secured by deeds of trust
for federal, state or local purposes, or changing the manner of collection
of any such taxes as to affect this Deed of Trust or the indebtedness
secured hereby, the TRUSTOR agrees to pay such tax arising from such new
law; and if the TRUSTOR fails to do so or if it would be illegal for the
TRUSTOR to do so, the BENEFICIARY may, at its election and without demand
or notice, declare the entire indebtedness secured by this Deed of Trust
(together with accrued interest thereon) immediately due and payable.
F. The TRUSTEE accepts this Trust when this Deed of Trust, duly executed
and acknowledged, is made a public record as provided by law. The TRUSTEE
is not obligated to notify any party to this Deed of Trust of a pending
sale under any other deed of trust or of any action or proceeding in which
the TRUSTOR, the BENEFICIARY and/or the TRUSTEE is a party, unless brought
by the TRUSTEE hereunder.
G. The TRUSTOR requests that a copy of any notice of default or any notice
of sale thereunder be mailed to the TRUSTOR at the address first referenced
and set forth herein, or at such other address as the TRUSTOR may, from
time to time, notify the TRUSTEE by certified United States mail.
IN WITNESS WHEREOF, this Deed of Trust is executed as of the date first
hereinabove written.
TRUSTOR:
ISE LABS, INC.
By: /s/ Saeed A. Malik
-----------------------------------
Saeed A. Malik, President
By: /s/ Alex M. Barrios
-----------------------------------
Alex M. Barrios, Vice President
By: /s/ Laurence F. Jorstad
-----------------------------------
Laurence F. Jorstad, Vice President
ATTACH NOTARY ACKNOWLEDGEMENTS
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CERTIFICATE OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss
COUNTY OF SANTA CLARA )
On August 30, 1994 before me, Belinda M. Wortham, Notary Public personally
appeared Saeed A. Malik, Alex M. Barrios and Laurence F. Jorstad proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to be that they executed
the same in their authorized capacity(ies), and that by their signature(s) on
the instrument the person(s), or the [??^^] the instrument.
WITNESS my hand and official seal. [SEAL OF BELINDA M. WORTHAM]
Signature /s/ Belinda M. Wortham
--------------------------
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EXHIBIT "A"
DESCRIPTION OF REAL PROPERTY
DEED OF TRUST
All that real property located in Santa Clara County, California, legally
described as follows:
Order No. 7440703
LEGAL DESCRIPTION
The land referred to in this Report is situated in the State of California, City
of San Jose, County of Santa Clara County Records, and is described as follows:
All of Parcel 1 as shown upon that certain map entitled, "Parcel Map, being
Parcel 8 of that Parcel Map of International Business Park consisting of twelve
sheets recorded January 28, 1977 in Map Book 388, pages 16 thru 27, and Parcel 1
as filed for record January 16, 1980, in Book 457 of maps, at page 34, and lying
within the City of San Jose, California" which map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on May
12, 1981 in Book 484 of maps, at page 12.
Excepting therefrom that portion thereof lying below a depth of 500 feet,
measured vertically from the contour of the surface of said property, as
excepted in the Deed from Southern Pacific Industrial Development Company, a
Texas corporation to Ringwood Avenue, WDT, a California general partnership,
recorded August 1, 1983 in Book H 768 of Official Records, page 300.
Also excepting therefrom the underground water or rights thereto with no right
of surface entry, as quitclaimed to San Jose Water Works, a California
Corporation, recorded on May 22, 1985 in Book J 353, of Official Records, page
153.
Assessors Parcel No. 244-22-025