DEED OF TRUST
Published on August 21, 1996
EXHIBIT 4.5
STATE OF TEXAS (S)
(S)
(S) KNOW ALL PERSONS BY THESE PRESENTS
(S)
COUNTY OF TRAVIS (S)
DEED OF TRUST, ASSIGNMENT, SECURITY
AGREEMENT AND FINANCING STATEMENT
THIS DEED OF TRUST, ASSIGNMENT, SECURITY AGREEMENT AND FINANCING STATEMENT
(this "Mortgage") dated to be effective as of August 1, 1996 is executed and
delivered by Grantor to Grantee for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged by Grantor.
RECITALS:
--------
1. Grantor, Bank of America National Trust and Savings Association, as
administrative agent for itself and the banks and financial institutions shown
on the signature pages of the Credit Agreement and any other bank that may
thereafter become a party thereto (such banks and financial institutions,
together with the Bank of America National Trust and Savings Association,
collectively, the "Banks"), and the Banks have entered into the Credit
-----
Agreement, dated as of July 19, 1996, as amended by the First Amendment to
Credit Agreement, dated as of August 7, 1996, covering loans in the aggregate
principal amount of up to $400,000,000.00 (as heretofore amended and as
hereafter amended, modified or restated from time to time, the "Credit
------
Agreement"). Grantor and Indenture Trustee have entered into the Indenture
- ---------
covering the Senior Secured Notes in the aggregate principal amount of
$400,000,000.00.
2. This Mortgage is part of the security for the Secured Indebtedness.
ARTICLE 1 - Certain Definitions; Granting Clauses;
--------------------------------------------------
Secured Indebtedness
--------------------
Section 1.1. Certain Definitions and Reference Terms. Capitalized
---------------------------------------
terms not otherwise defined herein shall have the meaning set forth in the
Credit Agreement or Indenture (as hereinafter defined). In addition to other
terms defined herein, each of the following terms shall have the meaning
assigned to it:
"Agent": Bank of America National Trust and Savings Association, as
-----
administrative agent for itself and the Banks under the Credit Agreement.
"Banks": The Banks as defined in paragraph 1 of the Recitals in this
-----
Mortgage.
-1-
"Collateral Agent": The Collateral Agent as defined in the definition of
----------------
"Grantee" contained in this Mortgage, whose duties and obligations on behalf of
Agent and Indenture Trustee are governed by the Intercreditor Agreement.
"Credit Agreement": The Credit Agreement described in paragraph 1 of the
----------------
Recitals.
"Credit Documents": The Credit Documents as defined in Section 1.4 hereof.
----------------
"Easement Agreement": The Reciprocal Easement Agreement more particularly
------------------
described as item 3 of Exhibit B to this Mortgage.
---------
"Easement Tracts": The real property described as "Easement Tracts" on
---------------
Exhibit A to this Mortgage.
- ---------
"Fab 25 Facilities": The Fab 25 Facilities as defined in Section 1.2(b)
-----------------
hereof.
"Grantee": IBJ Schroder Bank & Trust Company, as collateral agent
-------
("Collateral Agent"), its successors and assigns, for the ratable benefit of (i)
----------------
Bank of America National Trust and Savings Association, as administrative agent
("Agent"), its successors and assigns, for the benefit of itself and the Banks
-----
under the Credit Agreement; and (ii) Indenture Trustee, its successors and
assigns, for the benefit of the Noteholders under the Indenture and any
subsequent Noteholders.
"Grantor": ADVANCED MICRO DEVICES, INC., a Delaware corporation.
-------
"Holders": The Banks, Agent, Indenture Trustee, the Noteholders and any
-------
subsequent holders of all or part of any of the indebtedness secured hereunder.
"Indemnity Agreement": Payment, Reimbursement and Indemnity Agreement dated
-------------------
as of August 1, 1996 by and between Grantor and Collateral Agent, as the same
shall be amended, modified, or restated from time to time.
"Indenture": Indenture dated as of August 1, 1996, by and between Grantor
---------
and Indenture Trustee, as the same may hereafter be amended, modified or
restated from time to time.
"Indenture Trustee": United States Trust Company of New York, a New York
-----------------
trust company, being the Indenture Trustee described in the Indenture, or any
successor or substitute appointed from time to time acting under the Indenture.
"Intercreditor Agreement": Intercreditor and Collateral Agency Agreement
-----------------------
dated as of August 1, 1996, by and among Agent, Indenture Trustee and Collateral
Agent.
"Lease Agreement": The Lease, Option to Purchase and Put Option Agreement
---------------
more particularly described as item 2 of Exhibit B to this Mortgage.
---------
-2-
"Noteholders": The Noteholders as defined in Section 1.4 hereof.
-----------
"Release Tract": The Release Tract as defined in Section 6.25 hereof.
-------------
"Senior Secured Notes": 11% Senior Secured Notes due 2003 issued by
--------------------
Grantor in the aggregate principal amount of $400,000,000.00.
"Security Agreement": The Security Agreement, dated as of August 1, 1996,
------------------
by and between Grantor and Grantee, as the same may hereafter be amended,
modified, or restated from time to time.
"Security Tract": The Security Tract as defined in Section 6.25 hereof.
--------------
"Secured Indebtedness": The Secured Indebtedness as defined in Section 1.4
--------------------
hereof.
"Sublease Agreement": The Sublease Agreement described as item 4 in
------------------
Exhibit B to this Mortgage.
- ---------
"Tenant": The Tenant as defined in item 2 of Exhibit B to this Mortgage.
------ ---------
"Trustee": Shelley W. Austin, a resident of Travis County, Texas, or any
-------
successor or substitute appointed and designated as herein provided from time to
time acting hereunder.
Section 1.2. Mortgaged Property. Grantor does hereby GRANT, BARGAIN,
------------------
SELL, CONVEY, TRANSFER, ASSIGN and SET OVER to Trustee for the benefit of
Grantee (as defined above) the following, whether now owned or hereafter
acquired or created:
(a) the real estate including the fee tracts and the Easement Tracts
(herein called the "Land") described in Exhibit A which is attached hereto and
---- ---------
incorporated herein by reference, and (i) all improvements now or hereafter
situated on the Land (herein together called the "Improvements"); and (ii) all
------------
right, title and interest of Grantor in and to (1) all streets, roads, alleys,
easements, rights-of-way, licenses in and to real property, rights of ingress
and egress, vehicle parking rights and public places, existing or proposed,
abutting, adjacent, used in connection with or pertaining to the Land or the
Improvements; (2) any strips or gores between the Land and abutting or adjacent
properties; and (3) all water and water rights, all wastewater and wastewater
rights, timber, crops and mineral interests on or pertaining to the Land (the
Land, Improvements and other rights, titles and interests referred to in this
clause (a) being herein sometimes collectively called the "Premises");
--------
(b) all equipment, including without limitation machinery, tools,
machine tools, furniture, furnishings and fixtures of every nature, located on
or used in connection with, the Security Tract and the Improvements located
thereon (including without limitation the "Fab 25" integrated circuit
manufacturing facility and related support facilities (collectively, the "Fab 25
------
-3-
Facilities")), all accessions, additions and improvements thereto and
- ----------
substitutions therefor and all parts and equipment which may be attached to or
which are necessary for the operation and use of such personal property, whether
or not the same shall be deemed to be affixed to real property (any and all of
the foregoing being the "Equipment");
---------
(c) (i) purchase orders for Equipment, including all rights
thereunder, whether or not such Equipment has yet been delivered; (ii) warranty
claims for construction of the Fab 25 Facilities or any Equipment therein;
(iii) the as-built plans and specifications for the Fab 25 Facilities;
(iv) governmental licenses and permits for the construction and operation of the
Fab 25 Facilities (but not those for Proprietary Property and Rights, as defined
below); (v) operating manuals supplied by sellers of, and maintenance agreements
for, the Equipment, building heating and air conditioning equipment, and
electrical, plumbing, and mechanical systems for the Fab 25 Facilities; and
(vi) any other general intangibles used specifically in the construction,
ownership or operation of the Fab 25 Facilities, excluding from the property
described in this clause (vi) general intangibles associated with the Equipment
or manufacturing process, other than licenses and other intellectual property
licensed with the Equipment and made available by equipment vendors generally to
purchasers of such equipment (any and all of the foregoing being the "General
-------
Intangibles");
- -----------
(d) (A) contracts and agreements for the sale of the Equipment
(without hereby implying consent to the sale of any Equipment); (B) those
contracts and agreements listed on Schedule 1 of the Security Agreement, which
Schedule 1 is hereby incorporated herein by reference; and (C) ordinary vendor
and service contracts relating to the operation of the Fab 25 Facilities,
including scavenger, landscaping, extermination and cleaning but not raw
materials (the "Contracts");
----------
(e) the Proceeds Account (as defined in the Security Agreement), all
money, cash, cash equivalents, instruments, investments and other securities at
any time on deposit or required hereby to be deposited in the Proceeds Account
(as defined in the Security Agreement);
(f) all casualty insurance policies maintained or required to be
maintained under the Indenture and the Credit Agreement with respect to the
foregoing Mortgaged Property, and all condemnation or eminent domain proceeds
deriving from the Fab 25 Facilities (the properties referred to in clause
(b)-(f) above being herein sometimes collectively called the "Accessories," all
-----------
of which are hereby declared to be permanent accessions to the Land to the
extent permitted under applicable law);
(g) all (i) deposits (including but not limited to Grantor's rights in
security deposits, deposits with respect to utility services to the Premises,
and any deposits or reserves hereunder or under any other Credit Document),
which relate to the Premises; (ii) permits, licenses in and to real property,
franchises, certificates, development rights in and to real property,
commitments and rights for utilities, and other rights and privileges obtained
in connection with the Premises; (iii) leases, rents, royalties, bonuses,
issues, profits, revenues and other benefits of the Premises (without derogation
of Article hereof), whether now or hereafter acquired or whether now due or to
become due; and (iv) oil, gas and other hydrocarbons and other
-4-
minerals produced from or allocated to the Land and all products processed or
obtained therefrom, and the proceeds thereof;
(h) all Improvements and Accessories now or hereafter located on the
Security Tract whether or not added by Tenant, Grantor or any other person; and
(i) all (i) proceeds of or arising from the properties, rights, titles
and interests referred to above in this Section , including but not limited to
proceeds of any sale, lease or other disposition thereof, proceeds of the taking
thereof or of any rights appurtenant thereto, including change of grade of
streets, curb cuts or other rights of access, by eminent domain or transfer in
lieu thereof for public or quasi-public use under any law, and proceeds arising
out of any damage thereto; and (ii) all real property used in connection with
the properties, rights, titles and interests referred to above in this Section
1.2, including but not limited to rights of ingress and egress and remainders,
reversions and reversionary rights or interests; and if the estate of Grantor in
any of the property referred to above in this Section is a leasehold estate,
this conveyance shall include, and the lien and security interest created hereby
shall encumber and extend to, all other or additional title, estates, interests
or rights which are now owned or may hereafter be acquired by Grantor in or to
the property demised under the lease creating the leasehold estate; TO HAVE AND
TO HOLD the foregoing rights, interests and properties, and all rights, estates,
powers and privileges appurtenant thereto (herein, together with the Leases and
Rents under Article III hereof, collectively called the "Mortgaged Property"),
------------------
unto Trustee (and her successors or substitutes in this trust) for the benefit
of Grantee, however, upon the terms, provisions and conditions herein set forth
and subject to the Permitted Encumbrances (hereinafter defined).
Notwithstanding the foregoing, Mortgaged Property under this Mortgage
shall not include any of Grantor's right, title and interest in any of the
following:
(i) all inventory;
(ii) any agreements, contracts, or intangible personal property
assignment of which is prohibited by applicable law or by contract;
(iii) any (A) property or rights commonly referred to as "intellectual
property" or "proprietary rights" or "confidential information", in each case
owned by Grantor (including without limitation, patents, copyrights, trade
secrets, trademarks, symbols, or mask works, know-how, or any general
intangibles constituting any part of Grantor's proprietary technology), or any
media or part thereof (including without limitation documents, recordings,
computer tapes, disks or diskettes and magnetic or other storage media) which
include the foregoing items in this subparagraph (iii) (provided that any
practicably severable part of any medium which does not contain any of the items
in this subparagraph (iii) shall not be excluded from the Mortgaged Property);
and (B) any of the foregoing intellectual property, proprietary rights or
confidential information licensed or obtained by Grantor from another party with
an agreement or expectation of confidentialityor not generally available to
the semiconductor industry. All such excluded
-5-
property shall be referred to herein collectively as the "Proprietary Property
--------------------
and Rights"); provided that the Proprietary Property and Rights shall not
- ---------- -------- ----
include (I) licenses and other intellectual property licensed with the Equipment
and made available by equipment vendors generally to purchasers of such
equipment and (II) the plans and specifications for the buildings included in
the Fab 25 Facilities.
(iv) any agreement or contract to provide Proprietary Property and
Rights to Grantor;
(v) all Improvements and Accessories now or hereafter located on the
Release Tract; and
(vi) the subleasehold estate created under the Sublease Agreement.
The grant of a security interest in the Contracts shall also not
require Grantor or any other party to divulge, supply or reveal any Proprietary
Property and Rights, and shall not allow any other party to divulge, supply or
reveal any Proprietary Property and Rights owned by Grantor.
In the event that the lien of this Mortgage covering the Release Tract
is released by Grantee, pursuant to the provisions of Section 6.25 hereof, the
term "Land" as used in the foregoing Section shall not thereafter include the
fee simple real property constituting the Release Tract (the "Fee Simple Release
Tract"); and any Mortgaged Property that is covered by the lien of this Mortgage
by virtue of being located on or, if a real estate right, appurtenant to the
Land consisting of the Fee Simple Release Tract shall be deemed to be released
from the lien of this Mortgage by the Partial Release of Lien (as defined in
Section 6.25(b) hereof) that releases the Release Tract provided, however, that
-------- -------
the term "Land" shall thereafter continue to cover and include the Easement
Tracts notwithstanding that such Easement Tracts burden the Release Tract.
Section 1.3. Security Interest. Grantor hereby grants to Grantee a
-----------------
security interest in all of the Mortgaged Property which constitutes personal
property or fixtures (herein sometimes collectively called the "Collateral").
----------
In addition to its rights hereunder or otherwise, Grantee shall have all of the
rights of a secured party under the Uniform Commercial Code in effect in the
State of Texas, as amended (the "UCC"), or under the Uniform Commercial Code in
force in any other state to the extent the same is applicable law.
Section 1.4. Notes, Credit Documents, Other Obligations. This
------------------------------------------
Mortgage is made to secure and enforce the payment and performance of the
following notes, securities, obligations, indebtedness and liabilities and all
renewals, extensions, supplements, increases, and modifications thereof in whole
or in part from time to time: (a) all obligations of Grantor to Grantee under
(i) this Mortgage, (ii) the Indemnity Agreement, (iii) the Security Agreement,
and (iv) any other agreement to which Grantor is a party; (b) all obligations of
Grantor to Grantee, Indenture Trustee, and holders under or pursuant to the
Senior Secured Notes (collectively, the "Noteholders") and all other securities
-----------
given in substitution therefor or in modification, supplement, increase, renewal
or extension thereof, in whole or in part; (c) all indebtedness and obligations
of Grantor to the Agent and the Banks under the Credit Agreement (collectively,
the
-6-
"Bank Indebtedness") and all agreements given in substitution therefor or in
-----------------
modification, supplement, increase, renewal or extension thereof, in whole or in
part; (d) all indebtedness and obligations of Grantor to Grantee, Agent,
Indenture Trustee and Holders under the Lease Agreement, the Sublease Agreement,
and the Reciprocal Easement Agreement and to Grantee, Agent, Indenture Trustee
and Holders and any other indemnified parties, under the indemnification
provisions of this Mortgage; and (e) all indebtedness and other obligations owed
by Grantor to Holders, Grantee, or Indenture Trustee, now or hereafter incurred
or arising pursuant to the provisions of the Notes (as hereinafter defined),
this Mortgage, the Credit Agreement, the Indenture, or any other Credit Document
to which Grantor is a party (any notes hereafter issued to the Banks evidencing
the Bank Indebtedness, whether one or more, and the Senior Secured Notes, as
from time to time renewed, extended, supplemented, increased or modified and all
other notes and securities given in substitution therefor, or in modification,
renewal or extension thereof, in whole or in part, being hereinafter
collectively called the "Notes"). The Notes, this Mortgage, the Security
-----
Agreement, the Credit Agreement, the Indenture, and all other documents now or
hereafter evidencing, governing, guaranteeing, securing or otherwise executed in
connection with the loans evidenced by the Notes or the Credit Agreement, as
they or any of them may be from time to time renewed, extended, supplemented,
increased or modified and to which Grantor is a party, are herein sometimes
collectively called the "Credit Documents." The indebtedness and obligations
----------------
referred to in this Section are hereinafter collectively referred to as the
"Secured Indebtedness."
Section 1.5. Maturity and Amount of Secured Indebtedness. The
-------------------------------------------
maturity of the revolving loans governed by the Credit Agreement is three (3)
years from the Loan Availability Date of the Credit Agreement with the
possibility of a one (1) year extension. The maturity of the term loan governed
by the Credit Agreement is four (4) years from the Loan Availability Date of the
Credit Agreement. The maturity of the Senior Secured Notes is August 1, 2003.
The principal amount of the Secured Indebtedness is $800,000,000.00. The total
amount of the Secured Indebtedness is $800,000,000.00, together with any other
sums, including interest, costs, and expenses due and payable to the Holders and
Grantee under this Deed of Trust and the other Credit Documents.
ARTICLE 2 - Representations, Warranties and Covenants
-----------------------------------------
Section 2.1. Grantor represents, warrants, and covenants as follows:
(a) Payment and Performance. Grantor will make due and punctual
-----------------------
payment of the Secured Indebtedness. Grantor will timely and properly perform
and comply with all of the covenants, agreements, and conditions imposed upon it
by this Mortgage and the other Credit Documents to which it is a party and will
not permit a default to occur hereunder or thereunder. Time is of the essence in
this Mortgage.
(b) Title and Permitted Encumbrances. Grantor has, in Grantor's own
--------------------------------
right, and Grantor covenants to maintain, lawful, good and marketable title to
the Mortgaged Property,
-7-
except for such defects in title as could not, individually or in the aggregate,
have a Material Adverse Effect as defined in the Credit Agreement (whether or
not the Credit Agreement is then in effect); and the Mortgaged Property is free
and clear of all liens, charges, claims, security interests, and encumbrances
except for (i) the matters, if any, set forth under the heading "Permitted
Encumbrances" in Exhibit B attached hereto and incorporated herein, which are
---------
Permitted Encumbrances only to the extent the same are valid and subsisting and
affect the Mortgaged Property, (ii) the liens and security interests evidenced
by this Mortgage, and (iii) other liens and security interests permitted under
both the Credit Agreement and the Indenture as "Permitted Liens" or otherwise
(the matters described in the foregoing clauses (i) - (iii) being herein called
the "Permitted Encumbrances"). Grantor, and Grantor's successors and assigns,
----------------------
will warrant and forever defend title to the Mortgaged Property, subject as
aforesaid, to Trustee and her successors or substitutes and assigns, against the
claims and demands of all persons claiming or to claim the same or any part
thereof by, through or under Grantor but not otherwise. Grantor will punctually
pay, perform, observe and keep all covenants, obligations and conditions in or
pursuant to any Permitted Encumbrance and will not modify or permit modification
of any Permitted Encumbrance, except as may be otherwise provided in the Credit
Agreement and the Indenture. Inclusion of any matter as a Permitted Encumbrance
does not constitute approval or waiver by Grantee of any existing or future
violation or other breach thereof by Grantor, by the Mortgaged Property or
otherwise. No part of the Mortgaged Property constitutes all or any part of the
homestead of Grantor. If any right or interest of Grantee in the Mortgaged
Property or any part thereof shall be endangered or questioned or shall be
attacked directly or indirectly, Trustee and Grantee, or either of them (whether
or not named as parties to legal proceedings with respect thereto), are hereby
authorized and empowered to take such steps as in their discretion may be proper
for the defense of any such legal proceedings or the protection of such right or
interest of Grantee, including but not limited to the employment of independent
counsel, the prosecution or defense of litigation, and the compromise or
discharge of adverse claims. All reasonable expenditures so made of every kind
and character shall be a demand obligation (which obligation Grantor hereby
promises to pay within five (5) days of demand) owing by Grantor to Grantee or
Trustee (as the case may be), and the party (Grantee or Trustee, as the case may
be) making such expenditures shall be subrogated to all rights of the person
receiving such payment.
(c) Taxes and Other Impositions. Grantor will pay, or cause to be
---------------------------
paid, all taxes, assessments and other charges or levies imposed upon or against
or with respect to the Mortgaged Property or the ownership, use, occupancy or
enjoyment of any portion thereof, or any utility service thereto, as the same
become due and payable, including but not limited to all ad valorem taxes
assessed against the Mortgaged Property or any part thereof, in accordance with
the terms and provisions of the Credit Agreement and the Indenture.
(d) Insurance. Grantor shall obtain and maintain at Grantor's sole
---------
expense: (1) all-risk insurance with respect to all insurable Mortgaged
Property, against loss or damage by fire, lightning, windstorm, explosion, hail,
tornado and such hazards as are presently included in so-called "all-risk"
coverage and against such other insurable hazards as the Grantee may require, in
an amount not less than 100% of the full replacement cost, including the cost of
debris
-8-
removal, without deduction for depreciation and sufficient to prevent Grantor
and Grantee from becoming a coinsurer; (2) if and to the extent any portion of
the Premises is in a special flood hazard area, a flood insurance policy in an
amount equal to the lesser of the principal face amount of the Notes plus the
maximum amount of the Bank Indebtedness or the maximum amount of flood insurance
available; (3) commercial general public liability insurance, on an "occurrence"
basis, for the benefit of Grantor and Grantee and naming Grantee as an
additional named insured; (4) statutory worker's compensation insurance (or a
substitute type of insurance acceptable to Grantee ) with respect to any work on
or about the Premises; and (5) such other insurance on the Mortgaged Property as
may from time to time reasonably be required by Grantee (including but not
limited to business interruption insurance, boiler and machinery insurance and
earthquake insurance) and against other insurable hazards or casualties which at
the time are commonly insured against in the case of premises similarly
situated, due regard being given to the height, type, construction, location,
use and occupancy of buildings and improvements. All insurance policies shall be
issued and maintained by insurers, in amounts, with deductibles, and in form
satisfactory to Grantee and shall require not less than thirty (30) days' prior
written notice to Grantee of any cancellation or change of coverage.
All insurance policies maintained, or caused to be maintained, by Grantor
with respect to the Mortgaged Property, except for public liability insurance,
shall provide that each such policy shall be primary without right of
contribution from any other insurance that may be carried by Grantor or Grantee
and that all of the provisions thereof, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured. If any insurer which has issued a policy of title, hazard, liability
or other insurance required pursuant to this Mortgage or any other Credit
Document to which Grantor is a party becomes insolvent or the subject of any
bankruptcy, receivership or similar proceeding or if in Grantee's reasonable
opinion the financial responsibility of such insurer is or becomes inadequate,
Grantor shall, in each instance promptly upon the request of Grantee and at
Grantor's expense, obtain and deliver to Grantee a copy of a like policy (or, if
and to the extent permitted by Grantee, a certificate of insurance) issued by
another insurer, which insurer and policy meet the requirements of this Mortgage
or such other Credit Document, as the case may be. Without limiting the
discretion of Grantee with respect to required endorsements to insurance
policies, all such policies for loss of or damage to the Mortgaged Property
shall contain a standard mortgage clause (without contribution) naming Grantee
as mortgagee with loss proceeds payable to Grantee notwithstanding (i) any act,
failure to act or negligence of or violation of any warranty, declaration or
condition contained in any such policy by any named insured; (ii) the occupation
or use of the Mortgaged Property for purposes more hazardous than permitted by
the terms of any such policy; (iii) any foreclosure or other action by Grantee
under the Credit Documents; or (iv) any change in title to or ownership of the
Mortgaged Property or any portion thereof. Such proceeds shall be held by
Grantee for application as provided in the Credit Documents. A copy of each
initial insurance policy and a satisfactory certificate of insurance shall be
delivered to Grantee at the time of execution of this Mortgage, with premiums
fully paid, and a copy of each renewal or substitute policy shall be delivered
to Grantee, with premiums fully paid, as soon as such renewal or replacement is
available. A certificate of insurance evidencing renewal or replacement of the
-9-
policy shall be delivered to Grantee within ten (10) days of termination of the
policy to which such certificate relates. Grantor shall pay all premiums on
policies required hereunder as they become due and payable and promptly deliver
to Grantee evidence satisfactory to Grantee of the timely payment thereof. If
any loss occurs at any time when Grantor has failed to perform Grantor's
covenants and agreements in this paragraph, Grantee shall nevertheless be
entitled to the benefit of all insurance relating to the Mortgaged Property
covering the loss and held by or for Grantor, to the same extent as if it had
been made payable to Grantee. Upon any foreclosure hereof or transfer of title
to the Mortgaged Property in extinguishment of the whole or any part of the
Secured Indebtedness, all of Grantor's right, title and interest in and to all
proceeds relating to the Mortgaged Property payable under the insurance policy
(and any other sums owned by Grantor arising from such policies (including
unearned premiums) shall thereupon vest in the purchaser at foreclosure or other
such transferee, to the extent permissible under such policies. Grantee shall
have the right (but not the obligation) to make proof of loss for, settle and
adjust any claim under, and receive the proceeds of, all insurance for loss of
or damage to the Mortgaged Property, and the reasonable expenses incurred by
Grantee in the adjustment and collection of insurance proceeds shall be a part
of the Secured Indebtedness and shall be due and payable to Grantee on demand.
Grantee shall not be, under any circumstances, liable or responsible for failure
to collect or exercise diligence in the collection of any of such proceeds or
for the obtaining, maintaining or adequacy of any insurance or for failure to
see to the proper application of any amount paid over to Grantor. Any such
proceeds received by Grantee shall be applied as described in the Indenture;
provided, however, that in the event that the Indenture is not then in effect or
- -------- -------
the Notes held by the Noteholders have been paid in full or defeased, the
provisions relating to collateral dispositions contained in the Indenture shall
be deemed to be incorporated herein by reference. The Secured Indebtedness shall
remain in full force and effect and the payment thereof shall not be excused.
Grantor shall at all times comply with the requirements of the insurance
policies required hereunder and of the issuers of such policies and of any board
of fire underwriters or similar body as applicable to or affecting the Mortgaged
Property.
(e) [Intentionally omitted.]
(f) Condemnation. Grantor shall notify Grantee immediately of any
------------
threatened or pending proceeding for condemnation affecting the Mortgaged
Property or arising out of damage to the Mortgaged Property, and Grantor shall,
at Grantor's expense, diligently prosecute any such proceedings. Grantee shall
have the right (but not the obligation) to participate in any such proceeding
and to be represented by counsel of its own choice. Grantee shall be entitled
to receive all sums which may be awarded or become payable to Grantor for the
condemnation of the Mortgaged Property, or any part thereof, for public or
quasi-public use, or by virtue of private sale in lieu thereof, and any sums
which may be awarded or become payable to Grantor for injury or damage to the
Mortgaged Property (collectively, the "Condemnation Proceeds"). Grantor shall,
promptly upon request of Grantee, execute such additional assignments and other
documents as may be necessary from time to time to permit such participation and
to enable Grantee to collect and receipt for any such sums. All Condemnation
Proceeds are hereby assigned to Grantee, and shall be paid and applied as
provided in the Indenture; provided, however, that in
-------- -------
-10-
the event that the Indenture is not then in effect or the Notes held by the
Noteholders have been paid in full or defeased, the provisions relating to
application of Condemnation Proceeds in connection with an Event of Loss
contained in the Indenture shall be deemed to be incorporated herein by
reference. The Secured Indebtedness shall remain in full force and effect and
the payment thereof shall not be excused. Grantee shall not be, under any
circumstances, liable or responsible for failure to collect or to exercise
diligence in the collection of any such sum or for failure to see to the proper
application of any amount paid over to Grantor. Grantee is hereby authorized,
in the name of Grantor, to execute and deliver valid acquittances for, and to
appeal from, any such award, judgment or decree. All reasonable costs and
expenses (including but not limited to reasonable attorneys' fees) incurred by
Grantee in connection with any condemnation shall be a demand obligation owing
by Grantor (which Grantor hereby promises to pay within five (5) days of demand)
to Grantee pursuant to this Mortgage.
(g) Compliance with Legal Requirements. The Mortgaged Property and
----------------------------------
the use, operation and maintenance thereof and all activities thereon do and
shall at all times comply in all material respects with all applicable Legal
Requirements (defined below). The Mortgaged Property is not, and shall not be,
dependent on any other property or premises or any interest therein other than
the Mortgaged Property to fulfill any requirement of any Legal Requirement.
Grantor shall not, by act or omission, permit any building or other improvement
not subject to the lien of this Mortgage to rely on the Mortgaged Property or
any interest therein to fulfill any requirement of any Legal Requirement. No
part of the Mortgaged Property constitutes a nonconforming use under any zoning
law or similar law or ordinance. Grantor has obtained and shall preserve in
force all requisite zoning, utility, building, health and operating permits from
the governmental authorities having jurisdiction over the Mortgaged Property. If
Grantor receives a notice or claim from any person that the Mortgaged Property,
or any use, activity, operation or maintenance thereof or thereon, is not in
compliance with any Legal Requirement, Grantor will promptly furnish a copy of
such notice or claim to Grantee. Grantor has received no notice and has no
knowledge of any such noncompliance. As used in this Mortgage: (i) the term
"Legal Requirement" means "Requirement of Law" as defined in the Credit
-----------------
Agreement; provided, however, that in the event that the Credit Agreement is
-------- -------
not then in effect, the definition of "Requirement of Law" set forth in the
Credit Agreement shall nevertheless be deemed to be incorporated herein by
reference. The term "Legal Requirement" as used herein also includes any
-----------------
covenant, restriction, easement or condition (including, without limitation of
the foregoing, any condition or requirement imposed by any insurance or surety
company), as any of the same now exists or may be changed or amended or come
into effect in the future.
(h) Maintenance, Repair and Restoration. Grantor will keep the
-----------------------------------
Mortgaged Property in such order, repair, operating condition and appearance as
is customary for the type and character of the Improvements operated on the
Mortgaged Property, causing all necessary repairs, renewals, replacements,
additions and improvements to be promptly made, and will not allow any of the
Mortgaged Property to be misused, abused or wasted or to deteriorate, ordinary
wear and tear excepted. Notwithstanding the foregoing, Grantor will not, unless
otherwise permitted under the Credit Agreement and the Indenture, (i) remove
from the Mortgaged Property
-11-
any fixtures or personal property covered by this Mortgage, except such as is
replaced by Grantor by an article of equal suitability and value, owned by
Grantor, free and clear of any lien or security interest (except that created by
this Mortgage or permitted hereunder), or (ii) make any structural alteration to
the Mortgaged Property or any other alteration thereto which impairs the value
thereof.
(i) No Other Liens. Except as otherwise permitted herein or in the
--------------
Credit Documents, Grantor will not, without the prior written consent of
Grantee, create, place or permit to be created or placed, or through any act or
failure to act, acquiesce in the placing of, or allow to remain, any deed of
trust, mortgage, voluntary or involuntary lien, whether statutory,
constitutional or contractual, security interest, encumbrance or charge, or
conditional sale or other title retention document, against or covering the
Mortgaged Property, or any part thereof, other than the Permitted Encumbrances,
regardless of whether the same are expressly or otherwise subordinate to the
lien or security interest created in this Mortgage. Should any of the foregoing
become attached hereafter in any manner to any part of the Mortgaged Property
without the prior written consent of Grantee, Grantor will cause the same to be
promptly discharged and released. Grantor will own all parts of the Mortgaged
Property and, except as otherwise provided in the Credit Documents, will not
acquire any fixtures, equipment or other real property forming a part of the
Mortgaged Property pursuant to a lease, license, security agreement or similar
agreement, whereby any party has or may obtain the right to repossess or remove
same, without the prior written consent of Grantee, or except as otherwise
provided in the Credit Documents. If Grantee consents to the voluntary grant by
Grantor of any lien, security interest, or other encumbrance (hereinafter called
"Subordinate Mortgage") covering any of the Mortgaged Property or if the
foregoing prohibition is determined by a court of competent jurisdiction to be
unenforceable as to a Subordinate Mortgage, any such Subordinate Mortgage shall
contain express covenants to the effect that: (1) the Subordinate Mortgage is
unconditionally subordinate to this Mortgage and all Leases (hereinafter
defined); (2) if any action (whether judicial or pursuant to a power of sale)
shall be instituted to foreclose or otherwise enforce the Subordinate Mortgage,
no tenant of any of the Leases (hereinafter defined) shall be named as a party
defendant, and no action shall be taken that would terminate any occupancy or
tenancy without the prior written consent of Grantee; (3) Rents (hereinafter
defined), if collected by or for the holder of the Subordinate Mortgage, shall
be applied first to the payment of the Secured Indebtedness then due and
expenses incurred in the ownership, operation and maintenance of the Mortgaged
Property in such order as Grantee may determine, prior to being applied to any
indebtedness secured by the Subordinate Mortgage; (4) written notice of default
under the Subordinate Mortgage and written notice of the commencement of any
action (whether judicial or pursuant to a power of sale) to foreclose or
otherwise enforce the Subordinate Mortgage or to seek the appointment of a
receiver for all or any part of the Mortgaged Property shall be given to Grantee
with or immediately after the occurrence of any such default or commencement;
and (5) neither the holder of the Subordinate Mortgage, nor any purchaser at
foreclosure thereunder, nor anyone claiming by, through or under any of them
shall succeed to any of Grantor's rights hereunder without the prior written
consent of Grantee.
-12-
(j) Operation of Mortgaged Property. Grantor will operate the
-------------------------------
Mortgaged Property in a good and workmanlike manner and in accordance with all
Legal Requirements and will pay all fees or charges of any kind in connection
therewith. Grantor will operate the Mortgaged Property so as not to impair the
insurance carried thereon. Grantor will not use or occupy or conduct any
activity on, and will use best efforts to prevent the use or occupancy of or the
conduct of any activity on, the Mortgaged Property in any manner which violates
any Legal Requirement or which constitutes a public or private nuisance or which
makes void, voidable or cancelable, or increases the premium of, any insurance
then in force with respect thereto. Grantor will not initiate or permit any
zoning reclassification of the Mortgaged Property or seek any variance under
existing zoning ordinances applicable to the Mortgaged Property or use or permit
the use of the Mortgaged Property in such a manner which would result in such
use becoming a nonconforming use under applicable zoning ordinances or other
Legal Requirement. Grantor will not impose any easement, restrictive covenant or
encumbrance upon the Mortgaged Property, execute or file any subdivision plat or
condominium declaration affecting the Mortgaged Property or consent to the
annexation of the Mortgaged Property to any municipality, without the prior
written consent of Agent or, if the Credit Agreement is not then in effect or an
Event of Default exists, of Grantee, except as herein expressly provided or as
is otherwise permitted under any of the Credit Documents. Grantor will not do or
suffer to be done any act whereby the value of any part of the Mortgaged
Property may be lessened to any material extent. Grantor will preserve, protect,
renew, extend and retain all material rights and privileges granted for or
applicable to the Mortgaged Property. Without the prior written consent of Agent
or, if the Credit Agreement is not then in effect or an Event of Default exists,
of Grantee, there shall be no drilling or exploration for or extraction, removal
or production of any mineral, hydrocarbon, gas, natural element, compound or
substance (including sand and gravel) from the surface or subsurface of the Land
regardless of the depth thereof or the method of mining or extraction thereof.
Grantor will cause all debts and liabilities of any character (including without
limitation all debts and liabilities for labor, material and equipment and all
debts and charges for utilities servicing the Mortgaged Property) incurred in
the construction, maintenance, operation and development of the Mortgaged
Property to be promptly paid; provided, however, any such liens on the Mortgaged
-------- -------
Property for materialmen, mechanics, workmen or repairmen, the validity or
amount of which is contested in good faith by appropriate proceedings and for
which Grantor maintains adequate reserves in accordance with generally accepted
accounting principles shall be permitted so long as any right to seizure, levy,
attachment, sequestration, foreclosure or garnishment with respect to the
Mortgaged Property by reason of such lien has not matured, or has been, and
continues to be, effectively enjoined or stayed.
(k) Grantor Status. Grantor is not a "foreign person" within the
--------------
meaning of the Internal Revenue Code of 1986, as amended, Sections 1445 and 7701
(i.e. Grantor is not a non-resident alien, foreign corporation, foreign
partnership, foreign trust or foreign estate as those terms are defined therein
and in any regulations promulgated thereunder). The loans creating the Bank
Indebtedness and the extension of credit evidenced by the Notes are solely for
business purposes, and are not for personal, family, household or agricultural
purposes. Grantor's principal place of business and chief executive office, and
the place where Grantor keeps its books and
-13-
records concerning the Mortgaged Property has for the preceding four months been
and will continue to be (unless Grantor notifies Grantee of any change in
writing prior to the date of such change) the address of Grantor set forth at
the end of this Mortgage, and the books and records regarding the Mortgaged
Property may also be located at the following addresses:
5204 East Ben White Boulevard 3625 Peterson Way
Austin, Texas 78741 Santa Clara, California 95051
915 DeGuigne Dr., 5501 E. Oltorf
Sunnyvale, California 94086 Austin, Texas 78741
1160 Kern Avenue 5240 E. Ben White Blvd.
Sunnyvale, California 94086 Austin, Texas 78741
(l) Certain Environmental Matters.
-----------------------------
(i) Definitions. As used in this Mortgage: (1) "Environmental
-------------
Claim" means any enforcement, cleanup, removal, containment, remedial
-----
or other governmental or regulatory action at any time threatened,
instituted or completed pursuant to any applicable Environmental
Requirement against Grantor with respect to the Mortgaged Property or
any use or activity on the Mortgaged Property, and any claim at any
time threatened or made by any person against Grantor with respect to
the Mortgaged Property or any use or activity on the Mortgaged
Property, relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Substance;
(2) "Environmental Requirement" means any Legal Requirement which
-------------------------
pertains to ground or air or water or noise pollution or contamination,
underground or aboveground tanks, health or the environment, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), the
------
Resource Conservation and Recovery Act of 1976, as amended ("RCRA"),
----
the Texas Water Code and the Texas Solid Waste Disposal Act; (3)
"Hazardous Substance" means any substance, whether solid, liquid or
-------------------
gaseous: (a) which is listed, defined or regulated as a "hazardous
substance", "hazardous waste", or otherwise classified as hazardous or
toxic, in or pursuant to any Environmental Requirement; or (b) which is
or contains oil, petroleum, petroleum products, or any fraction
thereof, asbestos, radon, any polychlorinated biphenyl, urea
formaldehyde foam insulation, or explosive or radioactive material; or
(c) which causes or poses a threat to cause a condition of
contamination or nuisance on the Mortgaged Property or on any adjacent
property or a hazard to the environment or to the health or safety of
persons on the Mortgaged Property; and (4) "release" means release as
-------
defined in CERCLA and "released" means the past tense of release as
--------
defined in CERCLA. As used in this paragraph (l), the word "on" when
-14-
used with respect to the Mortgaged Property or adjacent property
means "on, in, under, or above."
(ii) Representations and Warranties. Grantor represents and
------------------------------
warrants to Grantee, subject to any disclosures made in any Credit
Document, the Phase I Environmental Site Assessment "Site I" Austin
Semiconductor Facility dated July 12, 1996 prepared by Cook-Joyce,
Inc., and the Site ESA-Phase 2 Groundwater Sampling and Analysis dated
July 29, 1996 prepared by Cook-Joyce, Inc., without regard to whether
Grantee has or hereafter obtains any other knowledge or report of the
environmental condition of the Mortgaged Property, as follows: (1)
during the period of Grantor's ownership of the Mortgaged Property, the
Mortgaged Property has not been used for landfill, dumping or other
waste disposal activity or operation, or for the generation, storage,
use, sale, treatment, processing, recycling or disposal of any
Hazardous Substance, except as is necessary or incidental to the
semiconductor manufacturing processes conducted at the Mortgaged
Property in compliance with applicable Environmental Requirements; (2)
to the best of Grantor's knowledge after inquiry in accordance with
good commercial or customary practices, no use of the Mortgaged
Property described in clause (1) preceding occurred at any time prior
to the period of Grantor's ownership of the Mortgaged Property; (3) to
the best of Grantor's knowledge, no use described in clause (1)
preceding on any adjacent property occurred during or at any time prior
to the period of Grantor's ownership of the Mortgaged Property; (4) to
the best of Grantor's knowledge after inquiry in accordance with good
commercial or customary practices, there is no underground storage
tank, sump or well on the Mortgaged Property; (5) Grantor has received
no notice and has no knowledge of any Environmental Claim or any
completed, pending, proposed or threatened investigation or inquiry
concerning the presence or release of any Hazardous Substance on the
Mortgaged Property or on the Release Tract or concerning whether any
condition, use or activity on the Mortgaged Property or on the Release
Tract is in violation of any Environmental Requirement; (6) to the best
of Grantor's knowledge, after inquiry in accordance with good
commercial or customary practices, the present conditions, uses and
activities on the Mortgaged Property do not violate any Environmental
Requirement and the use of the Mortgaged Property which Grantor (and
each tenant and subtenant, if any) makes and intends to make of the
Mortgaged Property complies and will comply with all applicable
Environmental Requirements; (7) the Mortgaged Property is not currently
on, and to the best of Grantor's knowledge after inquiry in accordance
with good commercial or customary practices, has never been on, any
federal or state "superfund" or "superlien" list; and (8) neither
Grantor, nor to Grantor's knowledge any tenant or subtenant, has
obtained or is currently required to obtain any permit or other
authorization to construct, occupy, operate, use or conduct any
activity on any of the Mortgaged Property by reason of any
Environmental Requirement, except as disclosed by Grantor to Agent and
Indenture Trustee in the
-15-
Credit Documents. For purposes of subparagraph (4) above, the term
"underground storage tank" shall mean an underground storage tank
buried in the ground and not a storage tank located in a lined portion
of an underground basement of a building, and subject to a written
inspection schedule.
(iii) Authorized Uses. Grantor will not cause, commit, permit or
---------------
allow to continue any use of the Mortgaged Property for landfill,
dumping or other waste disposal activity or operation, or for the
generation, storage, use, sale, treatment, processing, recycling or
disposal of any Hazardous Substance, except as is necessary or
incidental to the semiconductor manufacturing processes conducted at
the Mortgaged Property in compliance with applicable Environmental
Requirements.
(iv) Violations. Grantor will not cause, commit, permit or allow
----------
to continue any violation of any Environmental Requirement by Grantor
with respect to the Mortgaged Property or any use or activity on the
Mortgaged Property, or the attachment or existence of any environmental
lien to the Mortgaged Property, except such noncompliance which would
not (if enforced in accordance with applicable law) result in liability
(A) relating to the Mortgaged Property in excess of $10,000,000 in the
aggregate; or (B) relating to all properties owned by Grantor in excess
of $50,000,000 in the aggregate.
(v) Notice to Grantee. Grantor will promptly advise Grantee in
-----------------
writing of any Environmental Claim or of the discovery of any release
of Hazardous Substance on the Mortgaged Property, as soon as Grantor
first obtains knowledge thereof, including a full description of the
nature and extent of the Environmental Claim and/or the release of the
Hazardous Substance and all relevant circumstances.
(vi) Site Assessments and Information. If Grantee shall ever
--------------------------------
have a good faith basis to believe that any Hazardous Substance has
been released on the Mortgaged Property, or if any Environmental Claim
is made or threatened, or if an uncured default under any Credit
Document shall have occurred, Grantor will at its expense provide to
Grantee from time to time, in each case within 30 days of Grantee's
request, a report (including all drafts thereof if requested by
Grantee) of an environmental assessment of the Mortgaged Property made
after the date of Grantee's request and of such scope (including but
not limited to the taking of soil, air and groundwater samples and
other above and below ground testing) as Grantee may request and by a
consulting firm acceptable to Agent or, if the Credit Agreement is not
then in effect or an Event of Default exists, to Grantee. Grantor will
cooperate with each consulting firm making any such assessment and will
supply to the consulting firm, from time to time and promptly on
request, all
-16-
information available to Grantor to facilitate the completion of the
assessment and report.
(vii) Remedial Actions. Without limitation of Grantee's rights
----------------
to declare an Event of Default and to exercise all remedies available
by reason thereof, if any Hazardous Substance is released on the
Mortgaged Property at any time and regardless of the cause, Grantor
shall: (1) promptly at Grantor's sole risk and expense remove, treat,
dispose of or otherwise remediate the Hazardous Substance in compliance
with all applicable Environmental Requirements and solely under
Grantor's name, in addition to taking such other action as is necessary
to have the full use and benefit of the Mortgaged Property as
contemplated by the Credit Documents, and provide Grantee with
satisfactory evidence thereof; and (2) if requested by Grantee, provide
to Grantee within 30 days of Grantee's request a bond, letter of credit
or other financial assurance evidencing to Grantee's satisfaction that
all necessary funds are readily available to pay the costs and expenses
of the actions required by clause (1) preceding and to discharge any
assessments or liens established against the Mortgaged Property as a
result of the presence of the Hazardous Substance on the Mortgaged
Property.
(m) Further Assurances. Grantor will, promptly on request of Grantee,
------------------
(i) correct any defect, error or omission which may be discovered in the
contents, execution or acknowledgment of this Mortgage or any other Credit
Document; (ii) execute, acknowledge, deliver, procure and record and/or file
such further documents (including, without limitation, further deeds of trust,
security agreements, financing statements, continuation statements, and
assignments of rents or leases) and do such further acts as may be necessary or
proper to carry out more effectively the purposes of this Mortgage and the other
Credit Documents, to more fully identify and subject to the liens and security
interests hereof any property intended to be covered hereby (including
specifically, but without limitation, any renewals, additions, substitutions,
replacements, or appurtenances to the Mortgaged Property) or as reasonably
deemed advisable by Grantee to protect the lien or the security interest
hereunder against the rights or interests of third persons; and (iii) provide
such certificates, documents, reports, information, affidavits and other
instruments and do such further acts as may be necessary or proper in the
reasonable determination of Grantee to enable Grantee to comply with the
requirements or requests of any agency having jurisdiction over Grantee or any
examiners of such agencies with respect to the indebtedness secured hereby,
Grantor or the Mortgaged Property. Grantor shall pay all reasonable costs
connected with any of the foregoing, which shall be a demand obligation owing by
Grantor (which Grantor hereby promises to pay within five (5) days of demand) to
Grantee pursuant to this Mortgage.
(n) Fees and Expenses. Without limitation of any other provision of
-----------------
this Mortgage or of any other Credit Document and to the extent not prohibited
by applicable law, Grantor will pay, and will reimburse to Grantee and/or
Trustee on demand to the extent paid by Grantee and/or Trustee: (i) all
appraisal fees, filing and recording fees, taxes, brokerage fees and
-17-
commissions, abstract fees, title search or examination fees, title policy and
endorsement premiums and fees, uniform commercial code search fees, escrow fees,
reasonable attorneys' fees, architect fees, construction consultant fees,
environmental inspection fees, survey fees, consultant fees for consultants
exercising discretion rights on behalf of Grantee or Agent hereunder, and all
other reasonable out-of-pocket costs and expenses of every character incurred by
Grantor or Grantee and/or Trustee in connection with this Mortgage, and any and
all amendments and supplements to this Mortgage, the Notes or any other Credit
Documents to which Grantor is a party or any approval, consent, waiver, release
or other matter requested or required hereunder or thereunder, or otherwise
attributable or chargeable to Grantor as owner of the Mortgaged Property; and
(ii) all reasonable costs and expenses, including reasonable attorneys' fees and
expenses, incurred or expended in connection with the exercise of any right or
remedy, or the enforcement of any obligation of Grantor, hereunder or under any
other Credit Document to which Grantor is a party.
(o) Indemnification.
---------------
(i) Grantor hereby agrees to indemnify and hold harmless Grantee,
Holders, Trustee, Agent, and Indenture Trustee from and against, and
reimburse them on demand for, any and all Indemnified Matters (defined
below). For purposes of this paragraph (o), the terms "Grantee,"
"Holders," "Trustee," "Agent," and "Indenture Trustee" shall include
the directors, officers, partners, employees and agents of Grantee,
Holders, Trustee, Agent and Indenture Trustee, respectively, and any
persons owned or controlled by, owning or controlling, or under common
control or affiliated with Grantee, any Holder or Holders, Trustee,
Agent or Indenture Trustee, respectively. Without limitation, the
foregoing indemnities shall apply to each indemnified person with
respect to matters which in whole or in part are caused by or arise out
of the negligence of such (and/or any other) indemnified person, IT
--
BEING THE INTENTION OF THE PARTIES THAT GRANTOR INDEMNIFY GRANTEE,
-----------------------------------------------------------------
HOLDERS, AGENT, INDENTURE TRUSTEE, AND TRUSTEE FROM THE CONSEQUENCES OF
-----------------------------------------------------------------------
THEIR OR ITS OWN NEGLIGENCE, EXCEPT THEIR OR ITS OWN GROSS NEGLIGENCE;
---------------------------------------------------------------------
provided, however, that such indemnities shall not apply to a
-------- -------
particular indemnified person to the extent that the subject of the
indemnification is caused by or arises out of the gross negligence or
willful misconduct of that indemnified person. Any amount to be paid
under this paragraph (o) by Grantor to Grantee, Holders, Trustee, Agent
and/or Indenture Trustee shall be a demand obligation owing by Grantor
(which Grantor hereby promises to pay within five (5) days of demand)
to Grantee, Holders, Trustee, Agent and/or Indenture Trustee as
applicable, pursuant to this Mortgage and shall be a part of the
indebtedness secured by this Mortgage. Nothing in this paragraph,
elsewhere in this Mortgage or in any other Credit Document shall limit
or impair any rights or remedies of Grantee, Holders, Trustee, Agent
and/or Indenture Trustee (including without limitation any rights of
contribution or indemnification)
-18-
against Grantor or any other person under any other provision of this
Mortgage, any other Credit Document, any other agreement or any
applicable Legal Requirement.
(ii) As used herein, the term "Indemnified Matters" means any and
-------------------
all claims, demands, liabilities (including strict liability), losses,
damages (including consequential damages), causes of action, judgments,
penalties, costs and expenses (including without limitation, reasonable
fees and expenses of attorneys and other professional consultants and
experts, and of the investigation and defense of any claim, whether or
not such claim is ultimately defeated, and the settlement of any claim
or judgment including all value paid or given in settlement) of every
kind, known or unknown, foreseeable or unforeseeable, which may be
imposed upon, asserted against or incurred or paid by Grantee, Holders,
Trustee, Agent and/or Indenture Trustee at any time and from time to
time, whenever imposed, asserted or incurred, because of, resulting
from, in connection with, or arising out of any transaction, act,
omission, event or circumstance in any way connected with the Mortgaged
Property or with this Mortgage or any other Credit Document to which
Grantor is a party, including but not limited to any bodily injury or
death or property damage occurring in or upon or in the vicinity of the
Mortgaged Property through any cause whatsoever at any time on or
before the Release Date, any act performed or omitted to be performed
hereunder or under any other Credit Document to which Grantor is a
party, any breach by Grantor of any representation, warranty, covenant,
agreement or condition contained in this Mortgage or in any other
Credit Document to which Grantor is a party, any Event of Default (or
default, which with the passage of time or the giving of notice or
both, constitutes an Event of Default), any claim under or with respect
to any Lease (hereinafter defined), any Environmental Matter (defined
below), and any and all obligations, of whatever kind or character,
whether for payment of money or otherwise (and Grantor hereby further
guarantees performance of all such obligations), (A) of lessor, lessee,
sublessor, and sublessee under the Lease Agreement, the Sublease
Agreement and any other lease or sublease of the Release Tract in
effect at such time as the Release Tract is subject to the lien of this
Mortgage; and (B) of Tenant, its successors and assigns, and any
subsequent owner of the Release Tract (other than Grantee, Holder or a
purchaser therefrom) under the Easement Agreement (collectively, such
lease and Easement Agreement indemnity obligations in the immediately
preceding clause only being hereinafter referred to as the "Lease
-----
Indemnity Obligations"); provided, however, that the term "Indemnified
--------------------- -------- ------- -----------
Matters" shall not include matters caused by or arising out of (i) any
-------
event or condition arising or occurring at any time after the Release
Date, or (ii) the gross negligence or willful misconduct of any
indemnified person. As used herein, the term "Environmental Matter"
--------------------
means: (a) the presence of any Hazardous Substance on, in, under, or
above the Mortgaged Property, or the migration or release or threatened
migration or release of any Hazardous Substance on, to, from or through
the Mortgaged Property, on or at any time before the Release Date; or
(b) any act, omission, event or circumstance existing or occurring in
connection with the handling, treatment, containment, removal, storage,
decontamination, clean-up, transport or disposal of any
-19-
Hazardous Substance which is at any time on or before the Release Date
present on, in, under or above the Mortgaged Property; or (c) any
violation on or before the Release Date, of any Environmental
Requirement in effect on or before the Release Date, regardless of
whether any act, omission, event or circumstance giving rise to the
violation constituted a violation at the time of the occurrence or
inception of such act, omission, event or circumstance; or (d) any
Environmental Claim, or the filing or imposition of any environmental
lien against the Mortgaged Property, because of, resulting from, in
connection with, or arising out of any of the matters referred to in
clauses (a) through (c) preceding; and regardless of whether any of the
matters referred to in the foregoing clauses (a) through (d) was caused
by Grantor or Grantor's tenant or any subtenant, or any invitee, or a
prior owner of the Mortgaged Property or its tenant or any subtenant,
or any invitee, or any third party. Without limitation of the
definition of Indemnified Matters herein, Grantor's indemnification
obligations regarding any Environmental Matter shall include injury or
damage to any person, property or natural resource occurring on or off
of the Mortgaged Property (including but not limited to the cost of
demolition and rebuilding of any improvements on real property), the
preparation of any feasibility studies or reports and the performance
of any cleanup, remediation, removal, response, abatement, containment,
closure, restoration, monitoring or similar work required by any
Environmental Requirement or necessary to have the full use and benefit
of the Mortgaged Property as contemplated by the Credit Documents to
which Grantor is a party (including, without limitation, any of the
same in connection with any foreclosure or transfer in lieu thereof),
and all liability to pay or indemnify any person for costs in
connection with any of the foregoing and the investigation and defense
of any claim, whether or not such claim is ultimately defeated and the
settlement of any claim or judgment. Grantee shall notify Grantor of
any claim for which indemnity may be sought under this provision. The
term "Release Date" as used herein means the earlier of the
following two dates: (i) the date on which the indebtedness and
obligations secured hereby have been paid and performed in full and
this Mortgage has been released, or (ii) the date on which the lien of
this Mortgage is fully and finally foreclosed or a conveyance by deed
in lieu of such foreclosure is fully and finally effective, and
possession of the Mortgaged Property has been given to the purchaser or
grantee free of occupancy and claims to occupancy by Grantor and
Grantor's heirs, devisees, representatives, successors and assigns;
provided, that if such payment, performance, release, foreclosure or
conveyance is challenged, in bankruptcy proceedings or otherwise, the
Release Date shall be deemed not to have occurred until such challenge
is rejected, dismissed or withdrawn with prejudice, and provided
--------
further, however, that with respect to the Lease Indemnity Obligations,
------- -------
the Release Date shall be the date described in clause (i) unless
Grantee or any Holder has foreclosed on, or obtained by deed in lieu of
foreclosure, any part of the Premises, in which case the Release Date
shall be the date that Grantee or any Holder, as owner of the Release
Tract and/or Security Tract by virtue of foreclosure or deed in lieu
-20-
of foreclosure, sells or conveys the Premises to a third party who is
not a Holder. The indemnities in this paragraph (o) shall not terminate
upon the Release Date or upon the release, foreclosure or other
termination of this Mortgage with regard to any event or condition
arising or occurring at any time on or before the Release Date but will
survive the Release Date, foreclosure of this Mortgage or conveyance in
lieu of foreclosure, the repayment of the Secured Indebtedness, the
discharge and release of this Mortgage and the other Credit Documents,
any bankruptcy or other debtor relief proceeding, and any other event
whatsoever.
(p) [Intentionally omitted.]
(q) [Intentionally omitted.]
(r) [Intentionally omitted.]
(s) Cleanrooms. No later than thirty (30) days after Grantor's
----------
execution of this Mortgage, Grantor shall deliver to Agent one copy of the plans
and specifications covering the Premises and designate thereon or in an
accompanying list, all spaces within the Premises in which Grantor maintains a
Cleanroom Environment (collectively, the "Cleanrooms" and singly, the
----------
"Cleanroom") and state thereon what class or other standard of Cleanroom
---------
Environment is maintained by Grantor in each Cleanroom at the time of Grantor's
execution of this Mortgage. During the term of this Mortgage and at all times
prior to the Release Date, (i) Grantor shall maintain the Cleanrooms in their
respective classes or standards of Cleanroom Environment as maintained by
Grantor at the time of Grantor's execution of this Mortgage; and (ii) Grantor
shall continue to locate all Cleanroom Equipment in a Cleanroom or other
Cleanroom Environment. At all times Grantee or Grantee's representatives shall
have access to any Cleanroom Equipment in order to inspect it during business
hours, upon three (3) business days' prior notice by Grantee to Grantor. Such
inspection shall be conducted using such precautions as are mandated by
Grantor's rules and regulations, including but not limited to Grantor's
cleanroom protocol and confidentiality requirements, and in such manner so as
not to interfere or jeopardize operations. Prior to an Event of Default or a
default, which with the passage of time or the giving of notice or both would
constitute an Event of Default, any inspection of the Cleanrooms shall be
limited to one (1) inspection per calendar year and only two (2) persons
representing Grantee shall have access to and shall go inside the Cleanrooms
during such inspection. Upon an Event of Default or a default which, with the
passage of time or the giving of notice or both, would constitute an Event of
Default, Grantee or Grantee's representatives shall have access to any Cleanroom
Equipment at all times in order to inspect it and/or to remove or ship it.
Grantor shall cooperate with Grantee's efforts to inspect and/or remove or ship
any such Cleanroom Equipment, and Grantor shall pay for (or reimburse Grantee
for) any such costs and expenses. Grantor shall clean, and shall pay for (or
reimburse Grantee for) any costs and expenses incurred to clean, any Cleanroom
Equipment contaminated (i) as a result of actions of any parties or persons or
their agents, other than Grantee or its agents; or (ii) as a result of Grantee's
or its agents' actions, in the event that Grantor fails to cooperate or assist
Grantee in inspection, removal, or shipment of
-21-
any Cleanroom Equipment. Such cleaning costs shall be a demand obligation owing
by Grantor (which Grantor hereby promises to pay within five (5) days of demand)
to Grantee pursuant to this Mortgage. For purposes of this subsection 2.1(s), a
"Cleanroom Environment" shall mean an environment adapted to regulate dust, to
---------------------
reduce contamination, or to control airflow, temperature, humidity, chemical
purity, or other environmental conditions or manufacturing tolerances; and
"Cleanroom Equipment" shall mean all equipment located in a Cleanroom or in a
- --------------------
Cleanroom Environment at the time of Grantor's execution of this Mortgage and
during such time as this Mortgage is in effect or that, in accordance with
industry standards (based on the type and use of the equipment), should be kept
in a Cleanroom or Cleanroom Environment in order that such equipment perform to
its greatest capability.
(t) Right of Inspection. Grantee, Agent and Indenture Trustee shall on
-------------------
reasonable advance notice have access during normal business hours to the
records of Grantor pertaining to the Mortgaged Property, and Grantee, Agent and
Indenture Trustee or their respective representatives may examine the same, take
extracts therefrom and make photocopies thereof, and Grantor agrees to render to
the Grantee, Agent or Indenture Trustee, as the case may be, at Grantor's cost
and expense, such clerical assistance as may be reasonably requested with regard
thereto. Grantee, Agent and Indenture Trustee and their respective
representatives shall have the right to enter into and upon the Premises and any
premises where any of the Collateral is located for the purposes of inspecting
the same, observing its use or otherwise protecting its interests therein, at
such times as are permitted under Subsection 2.1(s) of this Mortgage and as to
Mortgaged Property other than Cleanrooms on reasonable advance notice during
normal business hours.
Section 2.2. Performance by Grantee on Grantor's Behalf. Grantor
------------------------------------------
agrees that, if Grantor fails to perform any act or to take any action which
under any Credit Document Grantor is required to perform or take, or to pay any
money which under any Credit Document Grantor is required to pay, and whether or
not the failure then constitutes an Event of Default hereunder or thereunder,
and whether or not the Secured Indebtedness has been accelerated, Grantee, in
Grantor's name or its own name, may, to the extent authorized under the Credit
Documents, but shall not be obligated to, perform or cause to be performed such
act or take such action or pay such money, and any reasonable expenses so
incurred by Grantee and any money so paid by Grantee shall be a demand
obligation owing by Grantor to Grantee (which obligation Grantor hereby promises
to pay), shall be a part of the Secured Indebtedness and Grantee, upon making
such payment, shall be subrogated to all of the rights of the person, entity or
body politic receiving such payment. Grantee and its designees shall have the
right to enter upon the Mortgaged Property from time to time to the extent
authorized under the Credit Documents. No such payment or performance by Grantee
shall waive or cure any default or waive any right, remedy or recourse of
Grantee. Any such payment may be made by Grantee in reliance on any statement,
invoice or claim that appears on its face to be valid without inquiry into the
validity or accuracy thereof. The amount and nature of any expense by Grantee
hereunder and the time when paid shall be fully established by the certificate
of Grantee or any of Grantee's officers or agents.
-22-
Section 2.3. Absence of Obligations of Grantee with Respect to
-------------------------------------------------
Mortgaged Property. Notwithstanding anything in this Mortgage to the contrary,
- ------------------
including, without limitation, the definition of "Mortgaged Property" and/or the
provisions of Article 3 hereof, (i) to the extent permitted by applicable law,
the Mortgaged Property is composed of Grantor's rights, title and interests
therein but not Grantor's obligations, duties or liabilities pertaining thereto,
(ii) Grantee neither assumes nor shall have any obligations, duties or
liabilities in connection with any portion of the items described in the
definition of "Mortgaged Property" herein, either prior to or after obtaining
title to such Mortgaged Property, whether by foreclosure sale, the granting of a
deed in lieu of foreclosure or otherwise, and (iii) Grantee may, at any time
prior to or after the acquisition of title to any portion of the Mortgaged
Property as above described, advise any party in writing as to the extent of
Grantee's interest therein and/or expressly disaffirm in writing any rights,
interests, obligations, duties and/or liabilities with respect to such Mortgaged
Property or matters related thereto. Without limiting the generality of the
foregoing, it is understood and agreed that Grantee shall have no obligations,
duties or liabilities prior to or after acquisition of title to any portion of
the Mortgaged Property, as lessee under any lease or purchaser or seller under
any contract or option unless Grantee elects otherwise by written notification.
The foregoing sentence shall not be deemed to imply that Grantee has any
interest in the subleasehold estate created under the Sublease Agreement by
virtue of this Mortgage, or that this Mortgage is not subject and subordinate to
the leasehold created under the Lease Agreement.
Section 2.4. Interest on Amounts Due. Each amount due and owing by
-----------------------
Grantor to Grantee or any Holder pursuant to this Mortgage shall bear interest,
from the date such amount becomes due until paid, at the rate described in
Section 2.09(c) of the Credit Agreement in effect on the date such amount
becomes due (but never in excess of the maximum nonusurious amount permitted by
applicable law), which interest shall be payable to Grantee or Holders as
applicable on demand; provided, however, that in the event that the Credit
-------- -------
Agreement is not then in effect, the rate described in Section 2.09(c) of the
Credit Agreement shall be deemed to be incorporated herein by reference; and all
such amounts, together with such interest thereon, shall automatically and
without notice be a part of the Secured Indebtedness. For purposes of this
Section 2.4, the Credit Agreement shall establish the definition of Base Rate,
and, in the event that the Credit Agreement is not then in effect, the
definition of Base Rate set forth in the Credit Agreement shall be deemed to be
incorporated herein by reference.
ARTICLE 3 - Collateral Assignment of Leases and Rents
-----------------------------------------
Section 3.1. Assignment. As additional security for the indebtedness
----------
secured hereby, Grantor hereby assigns to Grantee all Rents (hereinafter
defined) and all of Grantor's rights in and under all Leases (hereinafter
defined). Upon the occurrence and continuation of an Event of Default
hereunder, Grantee shall have the right, power and privilege (but shall be under
no duty) to demand possession of the Rents, which demand shall to the fullest
extent permitted by applicable law be sufficient action by Grantee to entitle
Grantee to immediate and direct payment of the Rents (including delivery to
Grantee of Rents collected for the period in which the
-23-
demand occurs and for any subsequent period), for application as provided in
this Mortgage, all without the necessity of any further action by Grantee,
including, without limitation, any action to obtain possession of the Land,
Improvements or any other portion of the Mortgaged Property. Grantor hereby
authorizes and directs the tenants under the Leases to pay Rents to Grantee upon
written demand by Grantee, without further consent of Grantor, without any
obligation to determine whether an Event of Default has in fact occurred and
regardless of whether Grantee has taken possession of any portion of the
Mortgaged Property, and the tenants may rely upon any written statement
delivered by Grantee to the tenants. Any such payment to Grantee shall
constitute payment to Grantor under the Leases, and Grantor hereby appoints
Grantee as Grantor's lawful attorney-in-fact for giving, and Grantee is hereby
empowered to give, acquittances to any tenants for such payments to Grantee upon
and after an Event of Default. The assignment contained in this Section shall
become null and void upon the release of this Mortgage. As used herein: (i)
"Lease" means each existing or future lease, sublease (to the extent of
-----
Grantor's rights thereunder) or other agreement under the terms of which any
person has or acquires any right to occupy or use the Mortgaged Property, or any
part thereof, or interest therein, including without limitation, the Lease
Agreement, the Air Rights Lease Agreement dated July 7, 1994, by and between
Grantor and Air Products and Chemicals, Inc., and the Sublease Agreement (to the
extent of Grantor's rights thereunder), and each existing or future guaranty of
payment or performance thereunder or under each such other lease, sublease,
agreement or guaranty, and all extensions, renewals, modifications and
replacements of such Lease Agreement and Air Rights Lease Agreement and each
such other lease, sublease, agreement or guaranty; and (ii) "Rents" means all of
-----
the rents, revenue, income, profits and proceeds derived and to be derived from
the Mortgaged Property (other than revenues, income, or profits resulting from
the sale of Grantor's inventory) or arising from the use or enjoyment of any
portion thereof or from any Lease, including but not limited to indemnity
obligations in favor of Grantor arising under any Lease (including without
limitation indemnity obligations covering any tenant's obligation to pay taxes,
utilities or other obligations relating to the leasehold), liquidated damages
following default under any such Lease, all proceeds payable under any policy of
insurance covering loss of rents resulting from untenantability caused by damage
to any part of the Mortgaged Property, all of Grantor's rights to recover
monetary amounts from any tenant in bankruptcy including, without limitation,
rights of recovery for use and occupancy and damage claims arising out of Lease
defaults, including rejections, under any applicable bankruptcy or other debtor
laws, together with any sums of money that may now or at any time hereafter be
or become due and payable to Grantor by virtue of any and all royalties,
overriding royalties, bonuses, delay rentals and any other amount of any kind or
character arising under any and all present and all future oil, gas, mineral and
mining leases covering the Mortgaged Property or any part thereof, and all
proceeds and other amounts paid or owing to Grantor under or pursuant to any and
all contracts and bonds relating to the construction or renovation of the
Mortgaged Property.
Section 3.2. Covenants, Representations and Warranties Concerning
----------------------------------------------------
Leases and Rents. Grantor covenants, represents and warrants that: (i) Grantor
- ----------------
has good title to, and is the owner of the entire landlord's interest in, the
Leases and Rents hereby assigned and authority to assign them; (ii) all Leases
are valid and enforceable, and in full force and effect, and are
-24-
unmodified except as stated therein; (iii) unless otherwise stated in a
Permitted Encumbrance, no Rents or Leases have been or will be assigned,
mortgaged, pledged or otherwise encumbered and no other person has or will
acquire any right, title or interest in such Rents or Leases; (iv) no Rents have
been waived, released, discounted, set off or compromised, except that the
rental under the Lease Agreement is a nominal $1.00; (v) except as stated in the
Leases, Grantor has not received any funds or deposits from any tenant for which
credit has not already been made on account of accrued Rents; (vi) Grantor shall
perform all of its obligations under the Leases and enforce the tenants'
obligations under the Leases to the extent enforcement is prudent under the
circumstances; (vii) Grantor will not, without the prior written consent of
Agent or, if the Credit Agreement is not then in effect or an Event of Default
exists, of Grantee, enter into any Lease after the date hereof, or waive,
release, discount, set off, compromise, reduce or defer any Rent, receive or
collect Rents more than one (1) month in advance (except for rent received more
than one (1) month in advance in connection with the Lease Agreement), grant any
rent-free period to any tenant, reduce any Lease term or waive, release or
otherwise modify any other material obligation under any Lease, renew or extend
any Lease except in accordance with a right of the tenant thereto in such Lease,
approve or consent to an assignment of a Lease or a subletting of any part of
the premises covered by a Lease, or settle or compromise any claim under a Lease
against a tenant in bankruptcy or otherwise; (viii) Grantor will not, except in
good faith where the tenant is in material default thereunder, terminate or
consent to the cancellation or surrender of any Lease having an unexpired term
of one year or more; (ix) Grantor will not execute any Lease except in
accordance with the Credit Documents and for actual occupancy by the tenant
thereunder; (x) Grantor shall give prompt notice to Grantee, as soon as Grantor
first obtains notice, of any claim, or the commencement of any action, by any
tenant or subtenant under or with respect to a Lease regarding any claimed
damage, default, diminution of or offset against Rent, cancellation of the
Lease, or constructive eviction, and Grantor shall defend, at Grantor's expense,
any proceeding pertaining to any Lease, including, if Grantee so requests, any
such proceeding to which Grantee is a party; (xi) Grantor shall as often as
requested by Grantee, within ten (10) days of each request, deliver to Grantee a
complete rent roll of the Mortgaged Property in such detail as Grantee may
require and financial statements of the tenants, subtenants and guarantors under
the Leases to the extent available to Grantor, and deliver to such of the
tenants and others obligated under the Leases specified by Grantee written
notice of the assignment in Section hereof in form and content satisfactory to
Grantee; (xii) promptly upon request by Grantee, Grantor shall deliver to
Grantee executed originals of all Leases and copies of all records relating
thereto; (xiii) there shall be no merger of the leasehold estates, created by
the Leases, with the fee estate of the Land without the prior written consent of
Agent or, if the Credit Agreement is not then in effect or an Event of Default
exists, of Grantee; and (xiv) Grantee may at any time and from time to time by
specific written instrument intended for the purpose, unilaterally subordinate
the lien of this Mortgage to any Lease, without joinder or consent of, or notice
to, Grantor, any tenant or any other person, and notice is hereby given to each
tenant under a Lease of such right to subordinate; and (xv) Grantor shall not
amend or terminate the Lease Agreement, the Reciprocal Easement Agreement, or
the Sublease Agreement at any time, without the prior written consent of Agent
or, if the Credit Agreement is not then in effect or an Event of Default exists,
of Grantee, provided, however, that in the event that the Release Tract has been
-------- -------
released from the lien of this
-25-
Mortgage by Grantee, the Lease Agreement may be amended but not terminated and
the Sublease Agreement may be amended or terminated; provided further, however,
---------------- -------
that the triple-net provisions, the indemnification provisions, and the non-
merger provisions may not be amended at any time, except with the prior written
consent of the Agent or, if the Credit Agreement is not then in effect or an
Event of Default exists, of Grantee. No such subordination shall constitute a
subordination to any lien or other encumbrance, whenever arising, or improve the
right of any junior lienholder; and nothing herein shall be construed as
subordinating this Mortgage to any Lease.
Section 3.3. No Liability of Grantee. Grantee's acceptance of this
-----------------------
assignment shall not be deemed to constitute Grantee a "mortgagee in
possession," nor obligate Grantee to appear in or defend any proceeding relating
to any Lease or to the Mortgaged Property, or to take any action hereunder,
expend any money, incur any expenses, or perform any obligation or liability
under any Lease, or assume any obligation for any deposit delivered to Grantor
by any tenant and not as such delivered to and accepted by Grantee. Grantee
shall not be liable for any injury or damage to person or property in or about
the Mortgaged Property, or for Grantee's failure to collect or to exercise
diligence in collecting Rents, but shall be accountable only for Rents that it
shall actually receive. Neither the assignment of Leases and Rents nor
enforcement of Grantee's rights regarding Leases and Rents (including collection
of Rents) nor possession of the Mortgaged Property by Grantee nor Grantee's or
Agent's consent to or approval of any Lease (nor all of the same), shall render
Grantee liable on any obligation under or with respect to any Lease or
constitute affirmation of, or any subordination to, any Lease, occupancy, use or
option. If Grantee seeks or obtains any judicial relief regarding Rents or
Leases, the same shall in no way prevent the concurrent or subsequent employment
of any other appropriate rights or remedies nor shall same constitute an
election of judicial relief for any foreclosure or any other purpose. Grantee
neither has nor assumes any obligations as lessor or landlord with respect to
any Lease. The rights of Grantee under this Article 3 shall be cumulative of all
other rights of Grantee under the Credit Documents or otherwise.
ARTICLE 4 - Default
-------
Section 4.1. Events of Default. The occurrence of any one of the
-----------------
following shall be an Event of Default under this Mortgage:
(a) Credit Agreement Default. The occurrence of an "Event of
------------------------
Default" as such term is defined under the Credit Agreement.
(b) Indenture Default. The occurrence of an "Event of Default" as
-----------------
such term is defined under the Indenture.
(c) Transfer of the Mortgaged Property. Any sale, lease, conveyance,
----------------------------------
assignment, pledge, encumbrance, or transfer of all or any part of the Mortgaged
Property or any
-26-
interest therein, voluntarily or involuntarily, whether by operation of law or
otherwise, except as permitted under the Credit Documents.
(d) Abandonment. The owner of the Mortgaged Property abandons any of
-----------
the Mortgaged Property.
(e) Default Under Other Lien. A default or Event of Default occurs
------------------------
under any lien, security interest or assignment covering the Mortgaged Property
or any part thereof (whether or not Grantee or Agent has consented, and without
hereby implying Grantee's or Agent's consent, to any such lien, security
interest or assignment not created hereunder), or the holder of any such lien,
security interest or assignment declares a default or institutes foreclosure or
other proceedings for the enforcement of its remedies thereunder.
(f) Grant of Easement, Etc. Without the prior written consent of
-----------------------
Agent or Grantee, Grantor grants any easement, dedication or restriction or
files any plat, or otherwise encumbers the Mortgaged Property, or seeks or
permits any zoning reclassification or variance, unless such action is permitted
by the Credit Agreement and the Indenture, does not materially adversely affect
the Mortgaged Property, or is permitted under Section 6.25 or otherwise in this
Mortgage.
(g) Enforceability; Priority. Any Credit Document shall for any
------------------------
reason without Grantee's specific written consent cease to be in full force and
effect, or shall be declared null and void or unenforceable in whole or in part,
or the validity or enforceability thereof, in whole or in part, shall be
challenged or denied by any party thereto other than Grantee; or the liens,
mortgages or security interests of Grantee in any of the Mortgaged Property
become unenforceable in whole or in part, or cease to be of the first priority
herein required, or the validity or enforceability thereof, in whole or in part,
shall be challenged or denied by Grantor or any person obligated to pay any part
of the Secured Indebtedness.
(h) Destruction. The Mortgaged Property is demolished, destroyed or
-----------
damaged provided however that such demolition, destruction or damage shall not
-------- -------
constitute an Event of Default if Grantor has sufficient funds (including
insurance proceeds) to rebuild the Mortgaged Property and proceeds diligently to
rebuild the Mortgaged Property or the Secured Indebtedness has been paid in
full.
(i) Condemnation. There is commenced any proceeding to condemn or
------------
otherwise take pursuant to the power of eminent domain, or a contract for sale
or a conveyance in lieu of such a taking is executed which provides for the
transfer of a material portion of the Premises, such as would materially
adversely affect the use and operation thereof as a wafer fabrication facility
or materially diminish the value of the Premises.
Section 4.2. Notice and Cure. If any provision of this Mortgage or
---------------
any other Credit Document provides for Grantee or any Holder to give to Grantor
any notice regarding an
-27-
Event of Default or incipient Event of Default, then if Grantee or any Holder
shall fail to give such notice to Grantor as provided, the sole and exclusive
remedy of Grantor for such failure shall be to seek appropriate equitable relief
to enforce the agreement to give such notice and to have any acceleration of the
maturity of the Notes, the Bank Indebtedness, and/or the Secured Indebtedness
postponed or revoked and foreclosure proceedings in connection therewith delayed
or terminated pending or upon the curing of such default or Event of Default in
the manner and during the period of time permitted by such agreement, if any,
and Grantor shall have no right to damages or any other type of relief not
herein specifically set out against Grantee or Holders, all of which damages or
other relief are hereby waived by Grantor. Nothing herein or in any other
Credit Document shall operate or be construed to add on or make cumulative any
cure or grace periods specified in any of the Credit Documents.
ARTICLE 5 - Remedies
--------
Section 5.1. Certain Remedies. If an Event of Default occurs and is
----------------
continuing, Grantee or the Holders, as the case may be, may (but shall have no
obligation to) exercise any one or more of the following remedies, without
notice (unless notice is required by applicable statute):
(a) Acceleration. The Holders may at any time and from time to time
------------
declare any or all of the Secured Indebtedness immediately due and payable and
such Secured Indebtedness shall thereupon be immediately due and payable,
without presentment, demand, notice, protest, notice of protest, notice of
acceleration or notice of intention to accelerate of any kind, all of which are
hereby expressly waived by Grantor.
(b) Enforcement of Assignment of Rents. Prior or subsequent to
----------------------------------
taking possession of any portion of the Mortgaged Property or taking any action
with respect to such possession, Grantee may: (1) collect and/or sue for the
Rents in Grantee's own name, give receipts and releases therefor, and after
deducting all reasonable expenses of collection, including reasonable attorneys'
fees and expenses, apply the net proceeds thereof to the Secured Indebtedness in
such manner and order as Grantee may elect and/or to the operation and
management of the Mortgaged Property, including the payment of reasonable
management, brokerage and attorney's fees and expenses; and (2) require Grantor
to transfer all security deposits and records thereof to Grantee together with
original counterparts of the Leases.
(c) Foreclosure. Upon the occurrence and during the continuation of
-----------
an Event of Default, Trustee, or her successor or substitute, is authorized and
empowered and it shall be her special duty at the request of Grantee to sell the
Mortgaged Property or any part thereof situated in the State of Texas, at the
courthouse of any county (whether or not the counties in which the Mortgaged
Property is located are contiguous, if the Mortgaged Property is located in more
than one county) in the State of Texas in which any part of the Mortgaged
Property is situated, at public venue to the highest bidder for cash between the
hours of ten o'clock a.m. and four o'clock p.m. on the first Tuesday in any
month or at such other place, time and date as provided by the statutes of the
State of Texas then in force governing sales of real estate under
-28-
powers of sale conferred by deed of trust, after having given notice of such
sale in accordance with such statutes. Any sale made by Trustee hereunder may
be as an entirety or in such parcels as Grantee may request. To the extent
permitted by applicable law, any sale may be adjourned by announcement at the
time and place appointed for such sale without further notice except as may be
required by law. The sale by Trustee of less than the whole of the Mortgaged
Property shall not exhaust the power of sale herein granted, and Trustee is
specifically empowered to make successive sale or sales under such power until
the whole of the Mortgaged Property shall be sold; and, if the proceeds of such
sale of less than the whole of the Mortgaged Property shall be less than the
aggregate of the Secured Indebtedness and the expense of executing this trust as
provided herein, this Mortgage and the lien hereof shall remain in full force
and effect as to the unsold portion of the Mortgaged Property just as though no
sale had been made; provided, however, that Grantor shall never have any right
-------- -------
to require the sale of less than the whole of the Mortgaged Property but Grantee
shall have the right, at its sole election, to request Trustee to sell less than
the whole of the Mortgaged Property. Trustee may, after any request or
direction by Grantee, sell not only the real property but also the Collateral
and other interests which are a part of the Mortgaged Property, or any part
thereof, as a unit and as a part of a single sale, or may sell any part of the
Mortgaged Property separately from the remainder of the Mortgaged Property. It
shall not be necessary for Trustee to have taken possession of any part of the
Mortgaged Property or to have present or to exhibit at any sale any of the
Collateral. After each sale, Trustee shall make to the purchaser or purchasers
at such sale good and sufficient conveyances in the name of Grantor, conveying
the property so sold to the purchaser or purchasers with general warranty of
title by Grantor, subject to the Permitted Encumbrances (and to such leases and
other matters, if any, as Trustee may elect upon request of Grantee), and shall
receive the proceeds of said sale or sales and apply the same as herein
provided. Payment of the purchase price to the Trustee shall satisfy the
obligation of purchaser at such sale therefor, and such purchaser shall not be
responsible for the application thereof. In the event any sale hereunder is not
completed or is defective in the opinion of Grantee, such sale shall not exhaust
the power of sale hereunder and Grantee shall have the right to cause a
subsequent sale or sales to be made hereunder. Any and all statements of fact
or other recitals made in any deed or deeds or other conveyances given by
Trustee or any successor or substitute appointed hereunder as to nonpayment of
the Secured Indebtedness or as to the occurrence of any Event of Default, or as
to the Holders' having declared all of the Secured Indebtedness to be due and
payable, or as to the request to sell, or as to notice of time, place and terms
of sale and the properties to be sold having been duly given, or as to the
refusal, failure or inability to act of Trustee or any substitute or successor
trustee, or as to the appointment of any substitute or successor trustee, or as
to any other act or thing having been duly done by Grantee, the Holders, or by
such Trustee, substitute or successor, shall be taken as prima facie evidence of
the truth of the facts so stated and recited. Trustee or her successor or
substitute may appoint or delegate any one or more persons as agent to perform
any act or acts necessary or incident to any sale held by Trustee, including the
posting or filing of notices and the conduct of sale, but in the name and on
behalf of Trustee, her successor or substitute. If Trustee or her successor or
substitute shall have given notice of sale hereunder, any successor or
substitute Trustee thereafter appointed may complete the sale and the conveyance
of
-29-
the property pursuant thereto as if such notice had been given by the successor
or substitute Trustee conducting the sale.
(d) Uniform Commercial Code. Without limitation of Grantee's rights
-----------------------
of enforcement with respect to the Collateral or any part thereof in accordance
with the procedures for foreclosure of real estate, Grantee may exercise its
rights of enforcement with respect to the Collateral or any part thereof under
the UCC (or under the Uniform Commercial Code in force in any other state to the
extent the same is applicable law) and in conjunction with, in addition to or in
substitution for those rights and remedies: (1) Grantee may enter upon
Grantor's premises to take possession of, assemble and collect the Collateral
or, to the extent and for those items of the Collateral permitted under
applicable law, to render it unusable; (2) Grantee may require Grantor to
assemble the Collateral and make it available at a place Grantee designates
which is mutually convenient to allow Grantee to take possession or dispose of
the Collateral; (3) written notice mailed to Grantor as provided herein at least
ten (10) days prior to the date of public sale of the Collateral or prior to the
date after which private sale of the Collateral will be made shall constitute
reasonable notice; (4) any sale made pursuant to the provisions of this
paragraph shall be deemed to have been a public sale conducted in a commercially
reasonable manner if held contemporaneously with and upon the same notice as
required for the sale of the Mortgaged Property under power of sale as provided
in paragraph (c) above in this Section ; (5) in the event of a foreclosure sale,
whether made by Trustee under the terms hereof, or under judgment of a court,
the Collateral and the other Mortgaged Property may, at the option of Grantee,
be sold as a whole; (6) it shall not be necessary that Grantee take possession
of the Collateral or any part thereof prior to the time that any sale pursuant
to the provisions of this Section is conducted and it shall not be necessary
that the Collateral or any part thereof be present at the location of such sale;
(7) with respect to application of proceeds of disposition of the Collateral
under Section hereof, the costs and expenses incident to disposition shall
include the reasonable expenses of retaking, holding, preparing for sale or
lease, selling, leasing and the like and the reasonable attorneys' fees and
legal expenses incurred by Grantee; (8) any and all statements of fact or other
recitals made in any bill of sale or assignment or other instrument evidencing
any foreclosure sale hereunder as to nonpayment of the Secured Indebtedness or
as to the occurrence of any Event of Default, or as to Grantee having declared
all of the Secured Indebtedness to be due and payable, or as to notice of time,
place and terms of sale and of the properties to be sold having been duly given,
or as to any other act or thing having been duly done by Grantee, shall be taken
as prima facie evidence of the truth of the facts so stated and recited; and (9)
Grantee may appoint or delegate any one or more persons as agent to perform any
act or acts necessary or incident to any sale held by Grantee, including the
sending of notices and the conduct of the sale, but in the name and on behalf of
Grantee.
(e) Lawsuits. Grantee may proceed by a suit or suits in equity or
--------
at law, whether for collection of the Secured Indebtedness, the specific
performance of any covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for any foreclosure hereunder or for
the sale of the Mortgaged Property under the judgment or decree of any court or
courts of competent jurisdiction.
-30-
(f) Entry on Mortgaged Property. Grantee is authorized, prior or
---------------------------
subsequent to the institution of any foreclosure proceedings, to the fullest
extent permitted by applicable law, to enter upon the Mortgaged Property, or any
part thereof, and to take possession of the Mortgaged Property and all books and
records relating thereto, and to exercise without interference from Grantor any
and all rights which Grantor has with respect to the management, possession,
operation, protection or preservation of the Mortgaged Property. Grantee shall
not be deemed to have taken possession of the Mortgaged Property or any part
thereof except upon the exercise of its right to do so, and then only to the
extent evidenced by its demand and overt act specifically for such purpose. All
reasonable costs, expenses and liabilities of every character incurred by
Grantee in managing, operating, maintaining, protecting or preserving the
Mortgaged Property shall constitute a demand obligation of Grantor (which
obligation Grantor hereby promises to pay within five (5) days of demand) to
Grantee pursuant to this Mortgage. If necessary to obtain the possession
provided for above, Grantee may invoke any and all legal remedies to dispossess
Grantor. In connection with any action taken by Grantee pursuant to this
Section, Grantee shall not be liable for any loss sustained by Grantor resulting
from any failure to let the Mortgaged Property or any part thereof, or from any
act or omission of Grantee in managing the Mortgaged Property unless such loss
is caused by the willful misconduct or bad faith of Grantee, nor shall Grantee
be obligated to perform or discharge any obligation, duty or liability of
Grantor arising under any lease or other agreement relating to the Mortgaged
Property or arising under any Permitted Encumbrance or otherwise arising.
Grantor hereby assents to, ratifies and confirms any and all actions of Grantee
with respect to the Mortgaged Property taken under this Section.
(g) Receiver. Grantee shall as a matter of right be entitled to the
--------
appointment of a receiver or receivers for all or any part of the Mortgaged
Property, whether such receivership be incident to a proposed sale (or sales) of
such property or otherwise, and without regard to the value of the Mortgaged
Property or the solvency of any person or persons liable for the payment of the
Secured Indebtedness. Nothing herein is to be construed to deprive Grantee of
any other right, remedy or privilege it may have under the law to have a
receiver appointed. Any money advanced by Grantee in connection with any such
receivership shall be a demand obligation (which obligation Grantor hereby
promises to pay within five (5) days of demand) owing by Grantor to Grantee
pursuant to this Mortgage.
(h) Other Rights and Remedies. Grantee and the Holders may exercise
-------------------------
any and all other rights and remedies which Grantee or any Holder may have under
the Credit Documents, or at law or in equity or otherwise.
Section 5.2. Effective as Mortgage. This instrument shall be
---------------------
effective as a mortgage as well as a deed of trust and upon the occurrence of an
Event of Default may be foreclosed as to any of the Mortgaged Property in any
manner permitted by applicable law, and any foreclosure suit may be brought by
Trustee or by Grantee; and to the extent, if any, required to cause this
instrument to be so effective as a mortgage as well as a deed of trust, Grantor
hereby mortgages the Mortgaged Property to Grantee. In the event a foreclosure
hereunder shall be
-31-
commenced by Trustee, or her substitute or successor, Grantee may at any time
before the sale of the Mortgaged Property direct Trustee to abandon the sale,
and may then institute suit for the collection of the Notes, the Bank
Indebtedness, and/or any other Secured Indebtedness and for the foreclosure of
this Mortgage. It is agreed that if Grantee should institute a suit for the
collection of the Notes, the Bank Indebtedness, and/or any other Secured
Indebtedness and for the foreclosure of this Mortgage, Grantee may at any time
before the entry of a final judgment in said suit dismiss the same, and require
Trustee, her substitute or successor to sell the Mortgaged Property in
accordance with the provisions of this Mortgage.
Section 5.3. Proceeds of Foreclosure. The proceeds of any sale held
-----------------------
by Trustee or Grantee or any receiver or public officer in foreclosure of the
liens and security interests evidenced hereby shall be applied: FIRST, to the
-----
payment of all necessary costs and expenses incident to such foreclosure sale,
including but not limited to all reasonable attorneys' fees and legal expenses,
all court costs and charges of every character, and a reasonable fee (not
exceeding five percent (5%) of the gross proceeds of such sale) to Trustee
acting under the provisions of paragraph (c) of Section hereof if foreclosed by
power of sale as provided in said paragraph, and to the payment of the other
Secured Indebtedness, including specifically without limitation the obligations
of Grantor to Grantee, the principal, accrued interest and reasonable attorneys'
fees due and unpaid on the Notes, the Bank Indebtedness, and the amounts due and
unpaid and owed to Grantee and any Holder under this Mortgage, the order and
manner of application to the items in this clause FIRST to be, as between
-----
Grantor and Grantee, in Grantee's sole discretion; and SECOND, the remainder, if
------
any there shall be, shall be paid to Grantor, or to Grantor's heirs, devisees,
representatives, successors or assigns, or such other persons (including the
holder or beneficiary of any inferior lien) as may be entitled thereto by law;
provided, however, that if Grantee is uncertain which person or persons are so
- -------- -------
entitled, Grantee may interplead such remainder in any court of competent
jurisdiction, and the amount of any reasonable attorneys' fees, court costs and
expenses incurred in such action shall be a part of the Secured Indebtedness and
shall be reimbursable (without limitation) from such remainder.
Section 5.4. Beneficiaries as Purchaser. Grantee, Agent, Indenture
--------------------------
Trustee, Trustee, or any Holder shall have the right to become the purchaser at
any sale held by Trustee or her substitute or successor or by any receiver or
public officer or at any public sale, and any such purchaser shall have the
right to credit upon the amount of its or her successful bid, to the extent
necessary to satisfy such bid, all or any part of the Secured Indebtedness in
such manner and order as Grantee may elect.
Section 5.5. Foreclosure as to Matured Debt. Upon the occurrence and
------------------------------
during the continuation of an Event of Default, Grantee shall have the right to
proceed with foreclosure (judicial or nonjudicial) of the liens and security
interests hereunder without declaring the entire Secured Indebtedness due, and
in such event any such foreclosure sale may be made subject to the unmatured
part of the Secured Indebtedness; and any such sale shall not in any manner
affect the unmatured part of the Secured Indebtedness, but as to such unmatured
part this Mortgage shall remain in full force and effect just as though no sale
had been made. The proceeds of such sale
-32-
shall be applied as provided in Section 5.3 hereof except that the amount paid
under clause FIRST thereof shall be only the matured portion of the Secured
Indebtedness and any proceeds of such sale in excess of those provided for in
clause FIRST (modified as provided above) shall be applied to the prepayment
(without penalty) of any other Secured Indebtedness in such manner and order and
to such extent as Grantee deems advisable, and the remainder, if any, shall be
applied as provided in clause SECOND of Section 5.3 hereof. Several sales may be
made hereunder without exhausting the right of sale for any unmatured part of
the Secured Indebtedness.
Section 5.6. Remedies Cumulative. All rights and remedies provided
-------------------
for herein and in any other Credit Document are cumulative of each other and of
any and all other rights and remedies existing at law or in equity, and Trustee,
Grantee and the Holders shall, in addition to the rights and remedies provided
herein or in any other Credit Document, be entitled to avail themselves of all
such other rights and remedies as may now or hereafter exist at law or in equity
for the collection of the Secured Indebtedness and the enforcement of the
covenants herein and the foreclosure of the liens and security interests
evidenced hereby, and the resort to any right or remedy provided for hereunder
or under any such other Credit Document or provided for by law or in equity
shall not prevent the concurrent or subsequent employment of any other
appropriate right or rights or remedy or remedies.
Section 5.7. Grantee's Discretion as to Security. Grantee may
-----------------------------------
resort to any security given by this Mortgage or to any other security now
existing or hereafter given to Grantee to secure the payment of the Secured
Indebtedness, in whole or in part, and in such portions and in such order as may
seem best to Grantee in its sole discretion, and any such action shall not in
anywise be considered as a waiver of any of the rights, benefits, liens or
security interests evidenced by this Mortgage.
Section 5.8. Grantor's Waiver of Certain Rights. To the full extent
----------------------------------
Grantor may do so, Grantor agrees that Grantor will not at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any appraisement, valuation, stay, extension or redemption,
and Grantor, for Grantor, Grantor's heirs, devisees, representatives, successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by applicable law and except as
otherwise expressly provided in the Credit Documents, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
intention to accelerate, mature or declare due the whole of the Secured
Indebtedness, notice of acceleration, notice of election to mature or declare
due the whole of the Secured Indebtedness and all rights to a marshaling of
assets of Grantor, including the Mortgaged Property, or to a sale in inverse
order of alienation in the event of foreclosure of the liens and/or security
interests hereby created. Grantor shall not have or assert any right under any
statute or rule of law pertaining to the marshaling of assets, sale in inverse
order of alienation, the exemption of homestead, the administration of estates
of decedents, or other matters whatever to defeat, reduce or affect the right of
Grantee under the terms of this Mortgage to a sale of the Mortgaged Property for
the collection of the Secured Indebtedness without any prior or different resort
for collection, or the right of Grantee under the terms of this Mortgage to the
payment of
-33-
the Secured Indebtedness out of the proceeds of sale of the Mortgaged Property
in preference to every other claimant (other than the Holders) whatever.
Grantor waives any right or remedy which Grantor may have or be able to assert
pursuant to the UCC, or any other provision of Texas or New York law, pertaining
to the rights and remedies of sureties. If any law referred to in this Section
and now in force, of which Grantor or Grantor's heirs, devisees,
representatives, successors or assigns or any other persons claiming any
interest in the Mortgaged Property might take advantage despite this Section,
shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to preclude the application of this Section.
Section 5.9. Delivery of Possession After Foreclosure. In the event
----------------------------------------
there is a foreclosure sale hereunder and at the time of such sale, Grantor or
Grantor's heirs, devisees, representatives, successors or assigns are occupying
or using the Mortgaged Property, or any part thereof, each and all shall
immediately become the tenant of the purchaser at such sale, which tenancy shall
be a tenancy from day to day, terminable at the will of either landlord or
tenant, at a reasonable rental per day based upon the value of the property
occupied, such rental to be due daily to the purchaser; and to the extent
permitted by applicable law, the purchaser at such sale shall, notwithstanding
any language herein apparently to the contrary, have the sole option to demand
immediate possession following the sale or to permit the occupants to remain as
tenants at will. In the event the tenant fails to surrender possession of said
property upon demand, the purchaser shall be entitled to institute and maintain
a summary action for possession of the property (such as an action for forcible
detainer) in any court having jurisdiction.
ARTICLE 6 - Miscellaneous
-------------
Section 6.1. Scope of Mortgage. This Mortgage is a deed of trust and
-----------------
mortgage of both real and personal property, a security agreement, a financing
statement and a collateral assignment, and also covers proceeds and fixtures.
Section 6.2. Effective as a Financing Statement. This Mortgage
----------------------------------
shall be effective as a financing statement filed as a fixture filing with
respect to all fixtures included within the Mortgaged Property and is to be
filed for record in the real estate records of each county where any part of the
Mortgaged Property (including said fixtures) is situated. This Mortgage shall
also be effective as a financing statement covering minerals or the like
(including oil and gas) and accounts subject to Subsection (e) of Section 9.103
of the UCC, as amended, and similar provisions (if any) of the Uniform
Commercial Code as enacted in any other state where the Mortgaged Property is
situated which will be financed at the wellhead or minehead of the wells or
mines located on the Mortgaged Property and is to be filed for record in the
real estate records of each county where any part of the Mortgaged Property is
situated. This Mortgage shall also be effective as a financing statement
covering any other Mortgaged Property and may be filed in any other appropriate
filing or recording office. The mailing address of debtor is the address of
Grantor set forth at the end of this Mortgage and the address of the secured
party from which information concerning the security interests hereunder may be
obtained is the address of Grantee set forth at the end of this Mortgage. A
carbon, photographic or other reproduction of this
-34-
Mortgage or of any financing statement relating to this Mortgage shall be
sufficient as a financing statement for any of the purposes referred to in this
Section.
Section 6.3. Waiver. Grantee may at any time and from time to time
------
by a specific writing intended for the purpose: (a) waive compliance by Grantor
with any covenant herein made by Grantor to the extent and in the manner
specified in such writing; (b) consent to Grantor's doing any act which
hereunder Grantor is prohibited from doing, or to Grantor's failing to do any
act which hereunder Grantor is required to do, to the extent and in the manner
specified in such writing; (c) release any part of the Mortgaged Property or any
interest therein from the lien and security interest of this Mortgage, without
the joinder of Trustee; or (d) release any party liable, either directly or
indirectly, for the Secured Indebtedness or for any covenant herein or in any
other Credit Document, without impairing or releasing the liability of any other
party. No such act shall in any way affect the rights or powers of Grantee or
Trustee hereunder except to the extent specifically agreed to by Grantee in such
writing.
Section 6.4. No Impairment of Security. The lien, security interest
-------------------------
and other security rights of Grantee hereunder or under any other Credit
Document shall not be impaired by any indulgence, moratorium or release granted
by Grantee including, but not limited to, any renewal, extension or modification
which Grantee may grant with respect to any Secured Indebtedness, or any
surrender, compromise, release, renewal, extension, exchange or substitution
which Grantee may grant in respect of the Mortgaged Property, or any part
thereof or any interest therein, or any release or indulgence granted to any
endorser, guarantor or surety of any Secured Indebtedness. The taking of
additional security by Grantee shall not release or impair the lien, security
interest or other security rights of Grantee hereunder or affect the liability
of Grantor or of any endorser, guarantor or surety, or improve the right of any
junior lienholder in the Mortgaged Property (without implying hereby Grantee's
or Agent's consent to any junior lien).
Section 6.5. Acts Not Constituting Waiver by Grantee. Grantee may
---------------------------------------
waive any default without waiving any other prior or subsequent default or Event
of Default. Grantee may remedy any default or Event of Default without waiving
the default or Event of Default remedied. Neither failure by Grantee to
exercise, nor delay by Grantee in exercising, nor discontinuance of the exercise
of any right, power or remedy (including but not limited to the right to
accelerate the maturity of the Secured Indebtedness or any part thereof) upon or
after any Event of Default shall be construed as a waiver of such default or
Event of Default or as a waiver of the right to exercise any such right, power
or remedy at a later date. No single or partial exercise by Grantee of any
right, power or remedy hereunder shall exhaust the same or shall preclude any
other or further exercise thereof, and every such right, power or remedy
hereunder may be exercised at any time and from time to time. No modification or
waiver of any provision hereof nor consent to any departure by Grantor therefrom
shall in any event be effective unless the same shall be in writing and signed
by Grantee (or in the case of a consent, by Agent) and then such waiver or
consent shall be effective only in the specific instance, for the purpose for
which given and to the extent therein specified. No notice to nor demand on
Grantor in any case shall of itself entitle Grantor to any other or further
notice or demand in similar or other circumstances. Acceptance by Grantee
-35-
or appropriate Holder, as applicable, of any payment in an amount less than the
amount then due on any Secured Indebtedness shall be deemed an acceptance on
account only and shall not in any way excuse the existence of a default
hereunder.
Section 6.6. Grantor's Successors. If the ownership of the Mortgaged
--------------------
Property or any part thereof becomes vested in a person other than Grantor,
Grantee may, without notice to Grantor, deal with such successor or successors
in interest with reference to this Mortgage and to the Secured Indebtedness in
the same manner as with Grantor, without in any way vitiating or discharging
Grantor's liability hereunder or for the payment of the indebtedness or
performance of the obligations secured hereby. No transfer of the Mortgaged
Property, no forbearance on the part of Grantee or any Holder, and no extension
of the time for the payment of the Secured Indebtedness given by Grantee or any
Holder shall operate to release, discharge, modify, change or affect, in whole
or in part, the liability of Grantor hereunder for the payment of the
indebtedness or performance of the obligations secured hereby or the liability
of any other person hereunder for the payment of the Secured Indebtedness. Each
Grantor agrees that it shall be bound by any modification of this Mortgage or
any of the other Credit Documents made by Grantee or Holder as applicable and
any subsequent owner of the Mortgaged Property, with or without notice to such
Grantor, and no such modifications shall impair the obligations of such Grantor
under this Mortgage or any other Credit Document. Nothing in this Section or
elsewhere in this Mortgage shall be construed to imply Grantee's, Agent's or any
Holder's consent to any transfer of the Mortgaged Property.
Section 6.7. Subrogation to Existing Liens; Vendor's Lien. To the
--------------------------------------------
extent that proceeds of the Notes and the Bank Indebtedness are used to pay
indebtedness secured by any outstanding lien, security interest, charge or prior
encumbrance against the Mortgaged Property, such proceeds have been advanced by
Holders at Grantor's request, and Holders shall be subrogated to any and all
rights, security interests and liens owned by any owner or holder of such
outstanding liens, security interests, charges or encumbrances, however remote,
irrespective of whether said liens, security interests, charges or encumbrances
are released, and all of the same are recognized as valid and subsisting and are
renewed and continued and merged herein to secure the Secured Indebtedness, but
the terms and provisions of this Mortgage shall govern and control the manner
and terms of enforcement of the liens, security interests, charges and
encumbrances to which Holders are subrogated hereunder. It is expressly
understood that, in consideration of the payment of such indebtedness by
Holders, Grantor hereby waives and releases all demands and causes of action for
offsets and payments in connection with the said indebtedness. If all or any
portion of the proceeds of the Bank Indebtedness or the loans evidenced by the
Notes or of any other Secured Indebtedness has been advanced for the purpose of
paying the purchase price for all or a part of the Mortgaged Property, no
vendor's lien is waived; and Grantee (for the benefit of Holders) shall have,
and is hereby granted, a vendor's lien on the Mortgaged Property as cumulative
additional security for the Secured Indebtedness. Grantee may foreclose under
this Mortgage or under the vendor's lien without waiving the other or may
foreclose under both.
-36-
Section 6.8. Application of Payments to Certain Indebtedness. If any
-----------------------------------------------
part of the Secured Indebtedness cannot be lawfully secured by this Mortgage or
if any part of the Mortgaged Property cannot be lawfully subject to the lien and
security interest hereof to the full extent of such indebtedness, then all
payments made shall be applied on said indebtedness first in discharge of that
portion thereof which is not secured by this Mortgage.
Section 6.9. Substitute Trustee. Trustee may resign by an
------------------
instrument in writing addressed to Grantee, or Trustee may be removed at any
time with or without cause by an instrument in writing executed by Grantee. In
case of the death, resignation, removal, or disqualification of Trustee, or if
for any reason Grantee shall deem it desirable to appoint a substitute or
successor trustee to act instead of the herein named trustee or any substitute
or successor trustee, then Grantee shall have the right and is hereby authorized
and empowered to appoint a successor trustee, or a substitute trustee, without
other formality than appointment and designation in writing executed by Grantee
and the authority hereby conferred shall extend to the appointment of other
successor and substitute trustees successively until the Secured Indebtedness
has been paid in full, or until the Mortgaged Property is fully and finally sold
hereunder. If Grantee is a corporation, trust company, or association and such
appointment is executed on its behalf by an officer of such corporation, trust
company, or association, such appointment shall be conclusively presumed to be
executed with authority and shall be valid and sufficient without proof of any
action by the board of directors or any superior officer of the corporation,
trust company, or association. Upon the making of any such appointment and
designation, all of the estate and title of Trustee in the Mortgaged Property
shall vest in the named successor or substitute Trustee and he or she shall
thereupon succeed to, and shall hold, possess and execute, all the rights,
powers, privileges, immunities and duties herein conferred upon Trustee. All
references herein to "Trustee" shall be deemed to refer to Trustee (including
-------
any successor or substitute appointed and designated as herein provided) from
time to time acting hereunder.
Section 6.10. No Liability of Trustee. Trustee shall not be liable
-----------------------
for any error of judgment or act done by Trustee in good faith, or be otherwise
responsible or accountable under any circumstances whatsoever (including
Trustee's negligence), except for Trustee's gross negligence or willful
misconduct. Trustee shall have the right to rely on any instrument, document or
signature authorizing or supporting any action taken or proposed to be taken by
her hereunder, believed by her in good faith to be genuine. All moneys received
by Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated in any
manner from any other moneys (except to the extent required by law), and Trustee
shall be under no liability for interest on any moneys received by her
hereunder. Grantor hereby ratifies and confirms any and all acts which the
herein named Trustee or her successor or successors, substitute or substitutes,
in this trust, shall do lawfully by virtue hereof. Grantor will reimburse
Trustee for, and save her harmless against, any and all liability and expenses
which may be incurred by her in the performance of her duties. The foregoing
indemnity shall not terminate upon discharge of the Secured Indebtedness or
foreclosure, or release or other termination, of this Mortgage.
-37-
Section 6.11. Release of Mortgage. If all of the Secured
-------------------
Indebtedness be paid as the same becomes due and payable and all of the
covenants, warranties, undertakings and agreements made in this Mortgage are
kept and performed, and all obligations, if any, of all Holders for further
advances have been terminated, then, and in that event only, all rights under
this Mortgage shall terminate (except to the extent expressly provided herein
with respect to indemnifications, representations and warranties and other
rights which are to continue following the release hereof) and the Mortgaged
Property shall become wholly clear of the liens, security interests, conveyances
and assignments evidenced hereby, and such liens and security interests shall be
promptly released by Grantee in due form at Grantor's cost. Without limitation,
all provisions herein for indemnity of Grantee, Holders, or Trustee shall
survive discharge of the Secured Indebtedness and any foreclosure, release or
termination of this Mortgage, including, without limitation, the indemnity
provisions set forth in Section 2.1(o) hereof.
Section 6.12. Notices. All notices, requests, consents, demands and
-------
other communications required or which any party desires to give hereunder or
under any other Credit Document shall be in writing and, shall be deemed
sufficiently given or furnished if delivered (i) by personal delivery, by
courier service that provides an airbill or other evidence of delivery or
attempted delivery, or by registered or certified United States mail, postage
prepaid, addressed to the party to whom directed at the addresses specified at
the end of this Mortgage (unless changed by similar notice in writing given by
the particular party whose address is to be changed); or (ii) by telegram,
telex, or facsimile (which shall be followed promptly by a written notice sent
in the manner providing in the preceding clause (i) of this sentence; or (iii)
by any method permitted under the Credit Agreement or the Indenture or expressly
otherwise required under this Mortgage. Any such notice or communication shall
be deemed to have been given either at the time of personal delivery or, in the
case of courier or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telegram, telex or
facsimile, upon receipt. Notwithstanding the foregoing, no notice of change of
address shall be effective except upon receipt. This Section shall not be
construed in any way to affect or impair any waiver of notice or demand provided
in any Credit Document or to require giving of notice or demand to or upon any
person in any situation or for any reason.
Section 6.13. Invalidity of Certain Provisions. A determination
--------------------------------
that any provision of this Mortgage is unenforceable or invalid shall not affect
the enforceability or validity of any other provision and the determination that
the application of any provision of this Mortgage to any person or circumstance
is illegal or unenforceable shall not affect the enforceability or validity of
such provision as it may apply to other persons or circumstances.
Section 6.14. Gender; Titles; Construction. Within this Mortgage,
----------------------------
words of any gender shall be held and construed to include any other gender, and
words in the singular number shall be held and construed to include the plural,
unless the context otherwise requires. Titles appearing at the beginning of any
subdivisions hereof are for convenience only, do not constitute any part of such
subdivisions, and shall be disregarded in construing the language contained in
such subdivisions. The use of the words "herein," "hereof," "hereunder" and
other similar
-38-
compounds of the word "here" shall refer to this entire Mortgage and not to any
particular Article, Section, paragraph or provision. The term "person" and
words importing persons as used in this Mortgage shall include firms,
associations, partnerships (including limited partnerships), joint ventures,
trusts, corporations, limited liability companies, trust companies, and other
legal entities, including public or governmental bodies, agencies or
instrumentalities, as well as natural persons.
Section 6.15. Reporting Compliance. Grantor agrees to comply with
--------------------
any and all reporting requirements applicable to the transaction involving the
Bank Indebtedness secured by this Mortgage and the transaction evidenced by the
Notes secured by this Mortgage which are set forth in any law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority, including but not limited to The International Investment Survey Act
of 1976, The Agricultural Foreign Investment Disclosure Act of 1978, The Foreign
Investment in Real Property Tax Act of 1980 and the Tax Reform Act of 1984 and
further agrees upon request of Grantee to furnish Grantee with evidence of such
compliance.
Section 6.16. Consent. Except where otherwise expressly provided
-------
herein, in any instance hereunder where the approval, consent or the exercise of
judgment of Grantee or Agent is required or requested, (i) the granting or
denial of such approval or consent and the exercise of such judgment shall be
within the sole discretion of Grantee or Agent as applicable, and Grantee and
Agent shall not, for any reason or to any extent, be required to grant such
approval or consent or exercise such judgment in any particular manner,
regardless of the reasonableness of either the request or Grantee's or Agent's
judgment, and (ii) no approval or consent of Grantee or Agent shall be deemed to
have been given except by a specific writing intended for the purpose and
executed by an authorized representative of Grantee or Agent, as applicable.
Section 6.17. Grantor. Unless the context clearly indicates
-------
otherwise, as used in this Mortgage, "Grantor" means the grantor named in
Section hereof. If any Grantor, or any signatory who signs on behalf of any
Grantor, is a corporation, partnership, limited liability company, or other
legal entity, Grantor and any such signatory, and the person or persons signing
for it, represent and warrant to Grantee that this instrument is executed,
acknowledged and delivered by Grantor's duly authorized representatives. If
Grantor is an individual, no power of attorney granted by Grantor herein shall
terminate on Grantor's disability.
Section 6.18. Execution; Recording. This Mortgage has been executed
--------------------
in several counterparts, all of which are identical, and all of which
counterparts together shall constitute one and the same instrument. The date or
dates reflected in the acknowledgments hereto indicate the date or dates of
actual execution of this Mortgage, but such execution is as of the date shown on
the first page hereof, and for purposes of identification and reference the date
of this Mortgage shall be deemed to be the date reflected on the first page
hereof. Grantor will cause this Mortgage and all amendments and supplements
thereto and substitutions therefor and all financing statements and continuation
statements relating thereto to be recorded, filed, re-recorded and refiled in
such
-39-
manner and in such places as Trustee or Grantee shall reasonably request and
will pay all such recording, filing, re-recording and refiling taxes, fees and
other charges.
Section 6.19. Successors and Assigns. The terms, provisions,
----------------------
covenants and conditions hereof shall be binding upon and shall inure to the
benefit of Grantor, Trustee, Grantee and Holders and their respective
representatives, successors and assigns and shall constitute covenants running
with the Land. All references in this Mortgage to any person shall be deemed to
include all such person's representatives, successors and assigns.
Section 6.20. Modification or Termination. This Mortgage may only be
---------------------------
modified or terminated by a written instrument or instruments intended for that
purpose and executed by the party against which enforcement of the modification
or termination is asserted. Any alleged modification or termination which is
not so documented shall not be effective as to any party.
Section 6.21. No Partnership, etc. The relationship between Holders
-------------------
and Grantor is solely that of lenders or securities purchaser and borrower. The
relationship between Grantee and Grantor is solely that of lienholder/secured
party and debtor. Neither Holders nor Grantee have any fiduciary or other
special relationship with Grantor. Nothing contained in the Credit Documents is
intended to create any partnership, joint venture, association or special
relationship between Grantor and Holders or between Grantor and Grantee or in
any way make Grantee or any Holder a co-principal with Grantor with reference to
the Mortgaged Property. All agreed contractual duties between or among Holders,
Grantor, Grantee, and Trustee are set forth herein and in the other Credit
Documents and any additional implied covenants or duties are hereby disclaimed.
Any inferences to the contrary of any of the foregoing are hereby expressly
negated.
Section 6.22. Compliance with Usury Laws. It is the intent of
--------------------------
Grantor and Grantee and all other parties to the Credit Documents to conform to
and contract in strict compliance with applicable usury law from time to time in
effect. All agreements between Grantee and Grantor (or any other party liable
with respect to any indebtedness under the Credit Documents) are hereby limited
by the provisions of this Section which shall override and control all such
agreements, whether now existing or hereafter arising. In no way, nor in any
event or contingency (including but not limited to prepayment, default, Event of
Default, demand for payment, or acceleration of the maturity of any obligation),
shall the interest taken, reserved, contacted for, charged, chargeable, or
received under this Mortgage, the Notes or any other Credit Document, or in
respect of the Bank Indebtedness or otherwise, exceed the maximum nonusurious
amount permitted by applicable law (the "Maximum Amount"). If, from any possible
--------------
construction of any document, interest would otherwise be payable in excess of
the Maximum Amount, any such construction shall be subject to the provisions of
this Section and such document shall ipso facto be automatically reformed and
the interest payable shall be automatically reduced to the Maximum Amount,
without the necessity of execution of any amendment or new document. If Grantee
or any Holder shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provision be in
excess of the Maximum Amount, an amount equal to the amount which would have
been excessive interest
-40-
shall, without penalty, be applied to the reduction of the principal amount
owing on the Secured Indebtedness in the inverse order of its maturity and not
to the payment of interest, or refunded to Grantor or the other payor thereof if
and to the extent such amount which would have been excessive exceeds such
unpaid principal. The right to accelerate maturity of the Notes, the Bank
Indebtedness, or any other Secured Indebtedness does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and neither Grantee nor any Holder intends to charge or receive
any unearned interest in the event of acceleration. All interest paid or agreed
to be paid to Grantee shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term
(including any renewal or extension) of such Secured Indebtedness so that the
amount of interest on account of such Secured Indebtedness does not exceed the
Maximum Amount. As used in this Section, the term "applicable law" shall mean
the state law applicable to the Secured Indebtedness, pursuant to the Credit
Agreement, or the Indenture (whichever relates to the relevant portion of the
Secured Indebtedness), or the federal law of the United States, whichever law
allows the greater interest, as such law now exists or may be changed or amended
or come into effect in the future.
Section 6.23. Applicable Law. THIS MORTGAGE SHALL BE CONSTRUED, AND THE
--------------
RIGHTS AND OBLIGATIONS OF GRANTOR AND GRANTEE HEREUNDER DETERMINED, IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCEPT WITH RESPECT TO THE
PROVISIONS HEREOF THAT RELATE TO THE CREATION, PERFECTION, AND PRIORITY OF LIENS
AGAINST, THE CONVEYANCE OF TITLE TO, OR THE REALIZATION UPON THE MORTGAGED
PROPERTY, WHICH SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, GRANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY
AND UNCONDITIONALLY FOR ITSELF AND IN RESPECT OF ITS PROPERTY TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK OR TEXAS STATE COURT, OR ANY UNITED
STATES FEDERAL COURT, SITTING IN NEW YORK OR TEXAS FOR THE PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. GRANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL
PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO GRANTOR AT ITS ADDRESS SET FORTH AT THE END OF THIS MORTGAGE.
GRANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. GRANTOR FURTHER WAIVES ANY OBJECTION TO
VENUE IN SUCH STATE AND ANY OBJECTION TO ANY ACTION OR PROCEEDING IN SUCH STATE
ON THE BASIS OF FORUM NON CONVENIENS. NOTHING IN THIS SECTION Applicable Law6.23
SHALL AFFECT THE RIGHT OF GRANTEE TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF GRANTEE TO BRING ANY ACTION OR
PROCEEDING AGAINST GRANTOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION.
-41-
Section 6.24. Waiver of Deficiency Statute Protections/Fair Market Value
----------------------------------------------------------
for Calculating Deficiencies.
- ----------------------------
(a) Notwithstanding the provisions of Sections 51.003, 51.004, and 51.005
of the Texas Property Code (as the same may be amended from time to time), and
to the extent permitted by law, Grantor agrees that Grantee or any Holder shall
be entitled to seek a deficiency judgment from Grantor and any other party
obligated on the Secured Indebtedness equal to the difference between the amount
of the Secured Indebtedness and the amount for which the Mortgaged Property was
sold pursuant to a judicial or nonjudicial foreclosure sale. Grantor expressly
recognizes that this Section constitutes a waiver of the above-cited provisions
of the Texas Property Code which would otherwise permit Grantor and other
persons against whom recovery of deficiencies is sought or guarantors
independently (even absent the initiation of deficiency proceedings against
them) to present competent evidence of the fair market value of the Mortgaged
Property as of the date of foreclosure and offset against any deficiency by the
amount by which the foreclosure sale price is determined to be less than such
fair market value. Grantor further recognizes and agrees that this waiver
creates an irrebuttable presumption that the foreclosure sale price is equal to
the fair market value of the Mortgaged Property for purposes of calculating
deficiencies owed by Grantor, guarantors, and others against whom recovery of a
deficiency is sought.
(b) Alternatively, in the event this waiver is determined by a court of
competent jurisdiction to be unenforceable, the following shall be considered
competent evidence for the finder of fact's determination of the fair market
value of the Mortgaged Property as of the date of the foreclosure sale in
proceedings governed by Sections 51.003, 51.004, and 51.005 of the Texas
Property Code (as amended from time to time):
(i) The Mortgaged Property shall be valued in an "as is" condition as of
the date of the foreclosure sale, without any assumption or expectation that the
Mortgaged Property will be repaired or improved in any manner before a resale of
the Mortgaged Property after foreclosure;
(ii) The valuation shall be based upon an assumption that the foreclosure
purchaser desires a prompt resale of the Mortgaged Property for cash promptly
(but no later than twelve months) following the foreclosure sale;
(iii) All expenses to be incurred when Grantee or any Holder resells the
Mortgaged Property including reasonable closing costs customarily borne by the
seller in a commercial real estate transaction should be added to the Secured
Indebtedness, including, without limitation, brokerage commissions, title
insurance, a survey of the Mortgaged Property, tax prorations, attorneys' fees,
and marketing costs;
(iv) The gross fair market value of the Mortgaged Property shall be
further discounted to account for any estimated holding costs associated with
maintaining the Mortgaged
-42-
Property pending sale, including, without limitation, utilities expenses,
property management fees, taxes and assessments (to the extent not accounted for
in (iii) above), and other maintenance expenses; and
(v) Any expert opinion testimony given or considered in connection with a
determination of the fair market value of the Mortgaged Property must be given
by persons having at least five years experience in appraising improved property
in the vicinity where the Mortgaged Property is located and being actively
engaged therein at the time of such testimony.
Section 6.25. Release Tract and Ratification.
------------------------------
(a) After the execution of this Mortgage, Grantor shall use its best
efforts to replat the Land into two separate platted tracts: (1) the Release
Tract (as hereinafter defined); and (2) the Security Tract (as hereinafter
defined). As used herein, the term "Release Tract" means the portion of the
Land more particularly described by metes and bounds on Exhibit C attached
---------
hereto and incorporated herein by reference (the "Release Tract Property
----------------------
Description"). As used herein the term "Security Tract" means the portion of
- -----------
the Land more particularly described by metes and bounds on Exhibit D attached
---------
hereto and incorporated herein by reference (the "Security Tract Property
-----------------------
Description"), together with all Improvements situated thereon. Grantee
- -----------
consents to a replat of the Land described by the Release Tract Property
Description into the Release Tract (the "Release Tract Plat") and to a replat of
------------------
the Land described by the Security Tract Property Description (the "Security
--------
Tract Plat") into the Security Tract. Grantor and Grantee agree, acknowledge,
- ----------
and confirm that the value of the Release Tract, at the time of the execution of
this Mortgage, is $1,500,042.
(b) Grantor shall be entitled to receive from Grantee a release of the lien
of this Mortgage covering the Release Tract in the form attached hereto as
Schedule 1 to this Mortgage (the "Partial Release of Lien"), if
- ---------- -----------------------
(1) Grantee and Agent shall have received from Grantor a copy of the
Release Tract Plat covering the Release Tract, showing recording data,
evidencing final plat approval by the City of Austin, and involving no
deviation from the Release Tract Property Description (except as otherwise
provided below);
(2) Grantee and Agent shall have received from Grantor a copy of the
Security Tract Plat covering the Security Tract, showing recording data,
evidencing final plat approval by the City of Austin, and involving no
deviation from the Security Tract Property Description (except as otherwise
provided below); and
(3) Grantee, Agent, and Indenture Trustee shall have received from
Grantor a written certificate executed by Grantor that certifies to
Grantee, Agent, and Indenture Trustee that the Release Tract Plat and the
Security Tract Plat delivered by Grantor pursuant to subparagraphs (b)(1)
and (b)(2) immediately
-43-
preceding meets the criteria set forth in subparagraphs (b)(1) and (b)(2)
immediately preceding.
Grantee and Agent shall have ten (10) business days from receipt of such Grantor
certificate or Grantor's certificate under Section 6.25(c) hereof (and
accompanying items pursuant to subparagraph (1) and (2) above) or from receipt
of the certificate of Grantee's engineering (or other) consultant, if later, to
determine whether the items submitted by Grantor pursuant to subparagraphs (1) -
(3) above meet the criteria set forth in subparagraphs (1) - (3) above.
(c) The Release Tract Plat shall not encompass a tract of land that
deviates in any respect from the tract of land described in the Release Tract
Property Description, unless the City of Austin requires such deviation as a
condition to its approval. The Security Tract Plat shall not encompass a tract
of land that deviates in any respect from the tract of land described in the
Security Tract Property Description, unless the City of Austin requires such
deviation as a condition to its approval. In the event that the Release Tract
Plat encompasses a tract of land that deviates in any respect from the tract of
land described in the Release Tract Property Description, as required by the
City of Austin, or in the event that the Security Tract Plat encompasses a tract
of land that deviates in any respect from the tract of land described in the
Security Tract Property Description as required by the City of Austin, Grantor
shall provide Grantee, Agent, and Indenture Trustee, in addition to the items
required by subparagraphs (1), (2) and (3) above and as a condition to Grantee's
execution and delivery of the Partial Release of Lien, (i) a certificate from
Grantee's engineering consultant, Gray Jansing & Associates, Inc., or other
engineer or consultant reasonably satisfactory to Agent, Grantee, and Grantor
(which consent of Grantor shall not be unreasonably withheld, and which consent
of Grantor shall be deemed given, if Grantor fails to consent to or reject the
use of such consultant within five (5) business days of Grantee's requested
choice of such consultant), in the form attached as Schedule 2 to this Mortgage;
----------
(ii) a certificate of Grantor in the form attached as Schedule 3 to this
----------
Mortgage; (iii) an amendment to the Lease Agreement and the Sublease Agreement
in which the property description of the leased or subleased premises is
replaced with the property description of the Release Tract with such deviations
from the Release Tract Property Description as have been approved by Grantee's
engineering (or other) consultant in its certificate required by subparagraph
(i) immediately preceding and for which Grantor's certificate required by
subparagraph (ii) immediately preceding has been given; and (iv) an amendment to
the Easement Agreement in which the property descriptions of the Premises (as
defined in the Easement Agreement) and AMD's Adjoining Land (as defined in the
Easement Agreement) are replaced with the property descriptions of the Release
Tract and the Security Tract respectively with such deviations from the Release
Tract Property Description and from the Security Tract Property Description as
have been approved by Grantee's engineering (or other) consultant in its
certificate given in accordance with subparagraph (i) above and for which
Grantor's certificate required by subparagraph (ii) immediately preceding has
been given. For purposes of the certificates attached as Schedule 2 and
----------
Schedule 3 to this Mortgage and this Section 6.25(c), the term "Fab 25 Complex"
- ----------
shall mean the buildings that house the integrated circuit manufacturing (i.e.
wafer fabrication) facility known as "Fab 25" and all related support buildings,
structures, and plants, including, without limitation, the nitrogen plant, the
-44-
industrial waste neutralization plant, the reverse osmosis de-ionized water
production plant, and the electric substation. Notwithstanding any provision
contained in this Mortgage to the contrary, Grantee shall have no obligation to
release the Release Tract if any portion of the buildings and structures
comprising the Fab 25 Complex is located on the Release Tract.
(d) Grantor grants Grantee an irrevocable power of attorney, in Grantor's
name and on its behalf, to re-plat the Land into the Release Tract and the
Security Tract and to contact, negotiate and settle with the City of Austin and
all relevant governmental authorities all issues in connection with any such re-
platting, in the event that Grantor is unable to accomplish the re-platting of
the Land into the Release Tract and the Security Tract within one year from the
date of this Mortgage or and an Event of Default or a default which, with the
passage of time or the giving of notice or both, would constitute an Event of
Default, exists.
(e) Grantor hereby further covenants and agrees that, after the granting of
such partial release as is provided herein, Grantor at Grantor's expense shall,
within ninety (90) days after recording of such Partial Release of Lien, obtain
a separation upon all public taxing and assessment rolls so that the remainder
of the Mortgaged Property then subject to the lien of this Mortgage shall be
separately rendered for tax purposes.
(f) In the event that (i) the Release Tract is released by Grantee pursuant
to the terms of this Section 6.25, and (ii) Grantee forecloses on the Security
Tract or receives a deed in lieu of foreclosure on the Security Tract, Grantor
agrees to execute a reciprocal easement agreement (the "New Easement Agreement")
----------------------
incorporating the provisions of the Easement Agreement, except that the New
Easement Agreement shall show Grantee and Grantor as the parties granting
reciprocal easements to each other. Grantor grants Grantee an irrevocable power
of attorney to execute Grantor's name, on behalf of Grantor, to such New
Easement Agreement. In the event that such New Easement Agreement is not
executed and filed of record, this provision of the Deed of Trust, which shall
survive foreclosure or deed given in lieu of foreclosure, shall constitute
ratification and joinder by Grantor and Grantee in the Easement Agreement and a
grant of the same easements by Grantor to Grantee as were granted by AMD Texas
Properties, L.L.C. ("Tenant") to Grantor in the Easement Agreement and a grant
------
of the same easements by Grantee to Grantor as were granted by Grantor to Tenant
in the Easement Agreement. For purposes of this subparagraph (f) only, the term
"Grantee" shall include any third party purchaser of the Security Tract at a
foreclosure.
[The remainder of this page is purposely left blank.]
-45-
Section 6.26. Limitation of Powers of Grantee. Grantor acknowledges that
-------------------------------
the powers and discretion granted to or held by the Grantee under this Mortgage
are subject to the terms of the Intercreditor Agreement, and that the ability of
the Grantee to take particular actions under this Mortgage may require the
consent of one or more of the Agent, the Indenture Trustee, or other
representatives of the Banks and the Noteholders. Grantee shall have no
liability to Grantor or Trustee under this Mortgage for taking or failing to
take any action to the extent such action or failure to take action is
consistent with the terms of the Intercreditor Agreement.
Section 6.27. Entire Agreement. This Mortgage and the Credit Documents to
----------------
which Grantor is a party constitute the entire understanding and agreement
between Grantor, Grantee, and Holders with respect to the transactions arising
in connection with the Secured Indebtedness and supersede all prior written or
oral understandings and agreements between Grantor, Grantee, and Holders with
respect to the matters addressed in such Credit Documents. Grantor hereby
acknowledges that, except as incorporated in writing in the Credit Documents to
which Grantor is a party, there are not, and were not, and no persons are or
were authorized by Grantee or any Holder to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the matters addressed in such Credit Documents.
[The remainder of this page is purposely left blank.]
-46-
THIS MORTGAGE, TOGETHER WITH THE CREDIT DOCUMENTS AND THE OTHER WRITTEN
-----------------------------------------------------------------------
LOAN DOCUMENTS TO WHICH GRANTOR IS A PARTY, REPRESENT THE FINAL AGREEMENT
- -------------------------------------------------------------------------
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMP-
- ------------------------------------------------------------------------------
ORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
- ------------------------------------------------------
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
-----------------------------------------------------------
IN WITNESS WHEREOF, this instrument is executed on the date set forth in
the acknowledgment to be effective as of the date first written on page 1
hereof.
The address and federal tax GRANTOR:
identification number of
Grantor are:
Advanced Micro Devices, Inc. ADVANCED MICRO DEVICES, INC.,
1160 Kern a Delaware corporation
One AMD Place
Sunnyvale, California 94086
Mail Stop 150 (General Counsel) By: /s/ Marvin D. Burkett
------------------------------------------
With a copy to: Name: Marvin D. Burkett
- -------------- ----------------------------------------
Advanced Micro Devices, Inc. Title: Senior Vice President, Chief
1160 Kern ---------------------------------------
One AMD Place Financial and Administrative
Sunnyvale, California 94086 Officer and Treasurer
Mail Stop 68 (Legal Department)
Federal Tax No. 94-1692300
The address of Grantee is
(including county):
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
(New York County)
Attention: Corporate Trust Department
-47-
STATE OF CALIFORNIA (S)
(S)
COUNTY OF SANTA CLARA (S)
This instrument was acknowledged before me on August 8, 1996, by
Marvin Burkett, Chief Financial Officer of Advanced Micro Devices, Inc., a
Delaware corporation, on behalf of said corporation.
(SEAL)
/s/ Winona C. Orange
------------------------------------------------
Notary Public in and for the State of California
Winona C. Orange
------------------------------------------------
Printed or Typed Name of Notary
My Commission Expires: 4-1-97
--------------------------
-48-
EXHIBIT A
---------
to
Deed of Trust, Assignment, Security Agreement
and Financing Statement
Land
----
Fee Tracts:
- ----------
TRACT 1: Lot One (1), SUNRIDGE PARK, SECTION TWO, a subdivision in Travis
- -------
County, Texas, according to the map or plat thereof, recorded in
Volume 77, Pages 118-119 of the Plat Records of Travis County, Texas.
TRACT 2: Lots Three (3), Four (4), Five (5) and Six (6), Block "A", and Lots
- -------
One (1) and Four (4), Block "B", all in UNIVERSITY BUSINESS PARK, a
subdivision in Travis County, Texas, according to the map or plat
thereof, recorded in Volume 85, Pages 52C, 52D and 53A of the Plat
Records of Travis County, Texas.
TRACT 3: Lot One (1), Block One (1), AMD ADDITION, a subdivision in Travis
- -------
County, Texas, according to the map or plat thereof, recorded in
Volume 92, Pages 92-93 of the Plat Records of Travis County, Texas.
Easement Tracts:
- ---------------
(a) AMD Potable Water Supply Easement:
---------------------------------
This nonexclusive easement covers and burdens those portions of the Release
Tract five feet (5') on each side of the presently existing potable water
pipelines which are in, upon, under and through the Release Tract and those
portions of the Release Tract in, on, over or across which one or more related
facilities presently exist, which together with such pipelines, supply potable
water to the Security Tract (the "AMD Water Supply System"). This nonexclusive
easement further covers and includes, without limitation, all areas upon which
there presently exist equipment, including without limitation pumps, pipes and
valves, necessary for the proper functioning of the AMD Water Supply System, and
any power supply necessary to operate such system.
(b) AMD Fire Water Storage and Distribution System Easement:
-------------------------------------------------------
This nonexclusive easement covers and burdens those portions of the Release
Tract upon which presently exist fire water storage tanks and other equipment
and facilities and those portions of the Release Tract five feet (5') on each
side of the presently existing fire water distribution pipelines which are in,
upon, under and through the Release Tract which are used to distribute fire
water to the Security Tract (such storage tanks, equipment, facilities and
pipelines being herein called the
Page 1 of 3
"AMD Fire Protection System"). This nonexclusive easement further covers and
includes, without limitation, all areas upon which there presently exist any
other equipment, including without limitation, pumps, pipes and valves,
necessary for the proper functioning, of the AMD Fire Protection System, and any
power supply necessary to operate such system.
(c) AMD Natural Gas Distribution Easement:
-------------------------------------
This nonexclusive easement covers and burdens those portions of the Release
Tract five feet (5') on each side of the presently existing pipelines which are
in, upon, under and through the Release Tract and through which natural gas is
distributed from the point of connection with the metering facilities of
Southern Union Gas Company to the Security Tract, together with and including
those additional areas on which other facilities related to the supply of
natural gas to the Security Tract are located on the Release Tract.
(d) AMD Wastewater Discharge System Easement:
----------------------------------------
This nonexclusive easement covers and burdens those portions of the Release
Tract five feet (5') on each side of the presently existing industrial and
domestic waste water and sanitary sewer pipelines which are in, upon, under and
through the Release Tract and those portions of the Release Tract in, on, over
or across which one or more related facilities presently exist, which together
with such pipelines, provide industrial and domestic waste water and sanitary
sewer service to the Security Tract (the "AMD Wastewater Discharge System").
This nonexclusive easement further covers and includes, without limitation, all
areas upon which there presently exist equipment, including without limitation
pumps, pipes and valves, necessary for the proper functioning of the AMD
Wastewater Discharge System, and any power supply necessary to operate such
system.
(e) AMD Drainage/Detention System Easement:
--------------------------------------
This nonexclusive easement covers and burdens:
(1) Those portions of the Release Tract five feet (5') on each side
of all presently existing storm water pipelines and conduits which are in,
upon, under and through the Release Tract and those portions of the Release
Tract in, on, over or across which one or more related facilities presently
exist, which together with such pipelines, provide the current storm water
discharge system for the Security Tract.
(2) All areas on the Release Tract upon which there presently exist
natural drainage courses, ditches or detention ponds necessary for the
detention or discharge of storm water from the Security Tract over the
Release Tract to reach either offsite disposal of such storm water via the
City of Austin's storm water discharge system, or onsite detention.
Page 2 of 3
(f) AMD Parking Easement:
--------------------
This nonexclusive easement covers and burdens:
(1) That portion of Lot 1 of "Advanced Micro Devices Section - 1," a
subdivision according to the plat thereof recorded in Plat Book 85, Page
14-A and 14-B of the Plat Records of Travis County, Texas, being more
particularly described on Exhibit A-1 attached to this Mortgage ("Parcel
-----------
2"); and
(2) Those portions of the Release Tract upon which presently exist
paved concrete parking lots and related facilities such as lighting,
security fences, overhead walkways and curb stops, which facilities provide
nonexclusive parking to the Security Tract in common with the Release
Tract. Without limiting the foregoing, this easement shall also include and
extend to all necessary electric power distribution facilities necessary to
service the lighting of the parking lots.
(g) AMD Driveway Easement:
---------------------
This nonexclusive easement covers and burdens those portions of the Release
Tract and Parcel 2 upon which presently exist concrete or other paved surface
driveways and concrete or other type hard surface paved areas used for ingress
and egress between the Security Tract and public streets and adjoining
properties. This nonexclusive easement further covers and includes, without
limitation, the existing concrete paved maneuvering and staging area between
Building No. 4 housing the FAB 25 complex and Building No. 1 housing the FAB 10
complex which provides access to and a vehicular turning area for the loading
docks for each of said buildings, said turning area being located between said
two buildings.
(h) AMD Electric Service Easement:
-----------------------------
This nonexclusive easement covers and burdens those portions of the Release
Tract upon which presently exists electric power lines, wires, conduits,
equipment, transformers and other facilities providing electric power service to
the Security Tract.
(i) AMD Telecommunications Easement:
-------------------------------
This nonexclusive easement covers and burdens those portions of the Release
Tract five feet (5') on each side of all presently existing telephone, fiber
optic and other telecommunication lines, including all cables, wires, and
conduits, together with those portions of the Release Tract on which presently
exist equipment and other facilities, used to provide telephone, video and
sound, and telecommunications services to the Security Tract.
Page 3 of 3
EXHIBIT A-1
DESCRIPTION
FOR A 1.849 ACRE (80,533 SQUARE FOOT) TRACT OF LAND SITUATED IN THE
CITY OF AUSTIN, TRAVIS COUNTY, TEXAS, BEING A PORTION OF LOT 1 OF
"ADVANCED MICRO DEVICES SECTION - 1", A SUBDIVISION ACCORDING TO THE
PLAT THEREOF RECORDED IN PLAT BOOK 85 PAGE 14-A AND 14-B OF THE PLAT
RECORDS OF SAID COUNTY, SAID 1.849 ACRE TRACT OF LAND BEING MORE
PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING on an iron rod found on a point in the southerly
right-of-way line of Oltorf Street East (90.00 foot right-of-way width), said
point being the northeasterly corner of Lot 4, Block B of "University Business
Park", a subdivision according to the plat thereof recorded in Plat Book 85
Pages 52C, 52D & 53A of said Plat Records, said point being also the
northwesterly corner of said Lot 1 and the POINT OF BEGINNING hereof;
THENCE with the southerly right-of-way line of Oltorf Street East,
same being the northerly boundary line of said Lot 1, S59(Degrees)02'54"E for a
distance of 199.18 feet to the most easterly corner hereof;
THENCE departing said right-of-way line through the interior of said
Lot 1 the following courses and distances numbered 1 through 6:
1) S31(Degrees)13'26"W for a distance of 95.01 feet to an angle point;
2) N60(Degrees)20'22"W for a distance of 101.25 feet to an angle
point;
3) S11(Degrees)37'28"W for a distance of 97.15 feet to an angle point;
4) S41(Degrees)36'52"W for a distance of 125.38 feet to an angle
point;
5) S11(Degrees)28'20"W for a distance of 257.55 feet to an angle
point;
6) N78(Degrees)31'40"W for a distance of 182.05 feet to an iron rod
found on an angle point in the westerly boundary line of said Lot 1,
same being the northeasterly corner of Lot 3, Block B, of said
"University Business Park", being also the southeasterly corner of
said Lot 4 and most southerly corner hereof;
THENCE with the westerly boundary line of said Lot 1, same being the
easterly boundary line of said Lot 4, the following courses and distances
numbered 1 through 3:
1) N28(Degrees)57'50"E for a distance of 14.87 feet to an iron rod set
on an angle point;
2) N29(Degrees)02'29"E for a distance of 465.12 feet to an iron rod
set on an angle point;
3) N28(Degrees)58'29"E for a distance of 136.05 feet to the POINT OF
BEGINNING hereof and containing 1.849 acres of land.
Surveyed under the direct supervision of the undersigned:
/s/ Cecil Jackson Chisholm 8-6-96
- ----------------------------------------------
Cecil Jackson Chisholm Date
Registered Professional Land Surveyor No. 4295
Job No. 570-026-10
[SEAL]
Sketch of Property Described,
Located in City of Austin, Travis County, Texas.
EXHIBIT B
---------
to
Deed of Trust, Assignment, Security Agreement
and Financing Statement
Permitted Encumbrances
----------------------
1. Taxes for the year 1996 and subsequent years not yet due and payable.
2. Lease, Option to Purchase and Put Option Agreement dated as of August 1,
1996, by and between Grantor and AMD Texas Properties, L.L.C., a Delaware
limited liability company ("Tenant") creating a 99-year term leasehold on
the Release Tract and recorded in the Real Property Records of Travis
County, Texas.
3. Reciprocal Easement Agreement dated as of August 1, 1996, by and between
Grantor and Tenant creating the easements benefitting the Release Tract and
burdening the Security Tract and the easements benefitting the Security
Tract and burdening the Release Tract shown therein and recorded in the
Real Property Records of Travis County, Texas.
4. Sublease Agreement dated as of August 1, 1996, by and between Tenant as
sublandlord and Grantor as subtenant and creating a 98-year subleasehold on
the Release Tract and recorded in the Real Property Records of Travis
County, Texas. (As to Release Tract)
5. Restrictive covenants of record itemized below:
(a) Volume 77, Pages 118-119 of the Plat Records, Volume 6469, Page
577 of the Deed Records as amended in Volume 11971, Page 6 of the
Real Property Records, all of Travis County, Texas. (As to Tract
1)
(b) Volume 85, Pages 52C, 52D and 53A of the Plat Records of Travis
County, Texas. (As to Tract 2)
(c) Volume 92, Pages 92-93 of the Plat Records of Travis County,
Texas. (As to Tract 3)
(d) Volume 6360, Page 387 of the Deed Records, Volume 9040, Page 1,
as amended by the Assignment of Declarant's Interest dated as of
August 1, 1996, executed by Grantor to be recorded after this
Mortgage in the Real Property Records of Travis County, Texas,
Volume 11857, Page 827, Volume 12002, Page 65, Volume 12039, Page
187 and Volume 12239, Page 809 of the Real Property Records, all
of Travis County, Texas. (As to Tracts 2 and 3)
B-1
(e) Volume 7230, Page 272 of the Deed Records, Volume 9009, Page 188
of the Real Property Records and Volume 85, Pages 14A-14B of the
Plat Records all of Travis County, Texas. (As to easement tract
described in Exhibit A-1 to this Mortgage, the "Parking Easement
Tract")
THE FOLLOWING APPLY TO TRACT 1:
6. Water meter vault easement granted to the City of Austin by instrument
dated March 14, 1994, recorded in Volume 12143, Page 2574 of the Real
Property Records of Travis County, Texas.
7. Electric substation easement granted to the City of Austin by instrument
dated May 13, 1994, recorded in Volume 12201, Page 1172 of the Real
Property Records of Travis County, Texas.
THE FOLLOWING APPLY TO TRACTS 1, 2, 3 AND THE EASEMENTS AFFECTING THE
RELEASE TRACT PURSUANT TO THE RECIPROCAL EASEMENT AGREEMENT SHOWN AS ITEM 3
IN THIS EXHIBIT B (THE "EASEMENT TRACT")
-------
8. All oil, gas and other minerals, as set forth by instrument dated March 12,
1937, recorded in Volume 585, Page 605 of the Deed Records of Travis
County, Texas, a portion of the surface rights to which have been waived by
the following instruments:
Waiver of surface easement as recorded in Volume 9049, Page 17, Volume
9049, Page 28, Volume 9049, Page 92 and Volume 9049, Page 140, all of the
Real Property Records of Travis County, Texas. (As to Lots 3, 4 and 5,
Block A and Lots 1 and 4, Block B only and Tract 3 also)
Waiver of surface easement as recorded in Volume 9048, Page 996, Volume
9049, Page 23, Volume 9049, Page 119 and Volume 9049, Page 134, all of the
Real Property Records of Travis County, Texas. (as to Lot 6, Block A of
Tract 2 only)
9. All oil, gas and other minerals, as set forth by instrument recorded in
Volume 3922, Page 1419 of the Deed Records of Travis County, Texas, which
instrument limits the reservation by expressly excluding any right to enter
upon the surface of the premises to develop, explore for, produce or store
any of the oil, gas or other minerals so reserved.
THE FOLLOWING APPLY TO TRACTS 1, 2, THE EASEMENT TRACT, AND THE PARKING
EASEMENT TRACT
10. Pipeline easement granted to Lo-Vaca Gathering Company by Right-of-Way
Agreement dated December 30, 1963, recorded in Volume 2778, Page 155 of the
Deed Records of Travis County, Texas, as amended by Amendment to Easement
recorded in Volume 11949,
B-2
Page 948 of the Real Property Records of Travis County, Texas. (Applies to
Lots 1 and 4, Block B of Tract 2 only as to Tract 2)
THE FOLLOWING APPLIES TO TRACT 1 AND THE EASEMENT TRACT:
11. Building setback line 25 feet in width along the south property line, as
shown on the Plat recorded in Volume 77, Pages 118-119 of the Plat Records
of Travis County, Texas.
12. Electric transmission and/or distribution line easement granted to Texas
Power & Light Company by instrument dated October 29, 1936, recorded in
Volume 569, Page 206 of the Deed Records of Travis County, Texas.
13. Underground electric and telephone lines and systems easement granted to
the City of Austin by instrument dated June 8, 1979, recorded in Volume
6634, Page 389 of the Deed Records of Travis County, Texas.
14. Electric and telephone lines and systems easement granted to the City of
Austin by instrument dated December 21, 1987, recorded in Volume 10577,
Page 329 of the Real Property Records of Travis County, Texas.
15. Water line easement granted to the City of Austin by instrument dated May
14, 1993, recorded in Volume 11941, Page 567 of the Real Property Records
of Travis County, Texas.
16. Wastewater line easement granted to the City of Austin by instrument dated
October 7, 1993, recorded in Volume 12041, Page 150 of the Real Property
Records of Travis County, Texas.
THE FOLLOWING APPLY TO TRACT 2 OR PORTIONS THEREOF NOTED BELOW:
17. Public access, utility and drainage easement 15 feet in width along the
north property line, as shown by the Plat recorded in Volume 85, Pages 52C,
52D and 53A of the Plat Records of Travis County, Texas. (As to Lot 6,
Block A only)
18. 100 year frequency flood plain drainage easement varying in width along the
west property line, as shown by the Plat recorded in Volume 85, Pages 52C,
52D and 53A of the Plat Records of Travis County, Texas. (As to Lot 6,
Block A only)
19. 30 foot by 57 foot lift station site located near the northwest corner of
the subject property as shown by the Plat recorded in Volume 85, Pages 52C,
52D and 53A of the Plat Records of Travis County, Texas. (As to Lot 6,
Block A only)
20. Building setback line 25 feet in width along the Oltorf Street East
property line, as shown on the Plat recorded in Volume 85, Pages 52C, 52D
and 53A of the Plat Records of Travis County, Texas. (As to Lots 4, 5 and
6, Block A and Lot 4, Block B only)
B-3
21. Building setback line 25 feet in width along the east property line, as
shown on the Plat recorded in Volume 85, Pages 52C, 52D and 53A of the Plat
Records of Travis County, Texas. (As to Lots 3 and 4, Block A only)
22. Building setback line 15 feet in width along the north property line, as
shown on the Plat recorded in Volume 85, Pages 52C, 52D and 53A of the Plat
Records of Travis County, Texas. (As to Lot 6, Block A only)
23. Underground electric and telephone lines and systems easement granted to
the City of Austin by instrument dated December 17, 1985, recorded in
Volume 9545, Page 39 of the Real Property Records of Travis County, Texas.
(As to Lot 6, Block A only)
24. Pipeline easement granted to United Gas Pipeline Company by instrument
dated August 29, 1949, recorded in Volume 964, Page 269 of the Deed Records
of Travis County, Texas. (As to Lot 6, Block A only)
25. Water meter vault easement granted to the City of Austin by instrument
dated March 14, 1994, recorded in Volume 12143, Page 2580 of the Real
Property Records of Travis County, Texas. (As to Lot 4, Block A only)
26. Waterline easement granted to the City of Austin by instrument dated March
25, 1994, recorded in Volume 12152, Page 85 of the Real Property Records of
Travis County, Texas. (As to Lot 3, Block A only)
27. Underground facilities easement granted to Southwestern Bell Telephone
Company by instrument dated May 17, 1979, recorded in Volume 6575, Page
1213 of the Deed Records of Travis County, Texas. (As to Lot 4, Block B
only)
28. Building setback, drainage and public utility easement 25 feet in width
along the east property line, as shown by the Plat recorded in Volume 85,
Pages 52C, 52D, and 53A of the Plat Records of Travis County, Texas. (As to
Lot 1, Block B only)
29. Building setback line 25 feet in width along the west property line, as
shown on the Plat recorded in Volume 85, Pages 52C, 52D, and 53A of the
Plat Records of Travis County, Texas. (As to Lot 1, Block B only)
30. Electric transmission easement granted to the City of Austin by instrument
dated May 13, 1994, recorded in Volume 12201, Page 1163 of the Real
Property Records of Travis County, Texas. (As to Lot 1, Block B only)
31. Building setback line 25 feet in width along the west and east property
lines, as shown on the Plat recorded in Volume 85, Pages 52C, 52D and 53A
of the Plat Records of Travis County, Texas. (As to Lot 4, Block B only)
B-4
THE FOLLOWING APPLY TO TRACT 3:
32. Public utility and drainage easement 30 feet in width along the west
property line, as shown by the Plat recorded in Volume 85, Pages 52C, 52D
and 53A of the Plat Records of Travis County, Texas.
33. Public utility easement 30 feet in width along the west property line, as
shown by the Plat recorded in Volume 92, Pages 92-93 of the Plat Records of
Travis County, Texas.
34. Public utility easement 15 feet in width along the north property line, as
shown by the Plat recorded in Volume 85, Pages 52C, 52D and 53A and Volume
92, Pages 92-93 of the Plat Records of Travis County, Texas.
35. A 50 foot wide electric easement across the subject property, as shown on
the Plat recorded in Volume 92, Pages 92-93 of the Plat Records of Travis
County, Texas.
36. A 40 foot wide Valero Gas Easement across the subject property, as shown on
the Plat recorded in Volume 92, Pages 92-93 of the Plat Records of Travis
County, Texas.
37. 1.531 acres along the south property reserved for right-of-way purposes, as
shown on the Plats recorded in Volume 92, Pages 92-93 of the Plat Records
of Travis County, Texas.
38. Building setback line 25 feet in width along the east property line, as
shown on the Plats recorded in Volume 85, Pages 52C, 52D and 53A and Volume
92, Pages 92-93 of the Plat Records of Travis County, Texas.
39. A 30 foot public utility easement granted to the City of Austin by
instrument dated November 2, 1994, recorded in Volume 8935, Page 4 of the
Real Property Records of Travis County, Texas.
THE FOLLOWING APPLIES TO THE EASEMENT TRACT:
40. Subject to the terms, conditions and stipulations of the Reciprocal
Easement Agreement, described in item 3 to this Exhibit B.
---------
THE FOLLOWING APPLY TO THE PARKING EASEMENT TRACT:
41. Electric transmission and/or distribution line and appurtenances easement
granted to the City of Austin by instrument dated July 25, 1940, recorded
in Volume 655, Page 367 of the Deed Records of Travis County, Texas.
B-5
42. The terms, conditions and stipulations set out in that certain City of
Austin License Agreement dated February 23, 1990, recorded in Volume 11168,
Page 1344 of the Real Property Records of Travis County, Texas.
43. Building setback line 25 feet in width along north property line(s), as
shown on the Plat recorded in Volume 85, Pages 14A-14B of the Plat Records
of Travis County, Texas.
44. Subject to the terms, conditions and stipulations of the Reciprocal
Easement Agreement described in item 3 to this Exhibit B.
---------
THE FOLLOWING APPLIES TO ALL TRACTS:
45. Terms, provisions and conditions of that certain Air Rights Lease Agreement
dated July 1, 1994, recorded in Volume 12361, Pages 158 of the Real
Property Records of Travis County, Texas.
46. Protrusion of asphalt drive across the westerly line of Tract 1 as shown on
survey dated August 5, 1996, and revised on August 9, 1996, prepared by
Cecil Jackson Chisholm, Registered Professional Land Surveyor No. 4295.
B-6
EXHIBIT C
---------
to
Deed of Trust, Assignment, Security Agreement
and Financing Statement
Release Tract Property Description
----------------------------------
A 34.481 acre tract of land out of Lot One (1) SUNRIDGE PARK SECTION
2, a subdivision in Travis County, Texas according to the map or plat thereof,
recorded in Volume 77, Pages 118-119 of the Plat Records of Travis County,
Texas, more particularly described as follows on Exhibit C-1 attached:
-----------
EXHIBIT C-1
DESCRIPTION
FOR A 34.481-ACRE TRACT OF LAND SITUATED IN THE CITY OF AUSTIN, TRAVIS
COUNTY, TEXAS, SAID 34.481-ACRE TRACT BEING A PORTION OF LOT 1 OF
"SUNRIDGE PARK, SECTION TWO", A SUBDIVISION ACCORDING TO THE PLAT
THEREOF RECORDED IN BOOK 77, PAGES 118-119 OF THE PLAT RECORDS OF TRAVIS
COUNTY, TEXAS, SAID 34.481-ACRE TRACT BEING MORE PARTICULARLY DESCRIBED
BY METES AND BOUNDS AS FOLLOWS:
BEGINNING on a 3/4-inch-diameter iron pipe found in the northerly
right-of-way line of Ben White Boulevard (right-of-way varies), being the
southeasterly corner of Lot A of "Briarton Subdivision", a subdivision of record
in Book 72, Page 40 of said Plat Records, being also the southwesterly corner of
said Lot 1 of "Sunridge Park, Section Two" and POINT OF BEGINNING hereof;
THENCE departing the northerly right-of-way line of Ben White Boulevard,
in part with the easterly boundary line of said "Briarton Subdivision", in part
with the easterly boundary line of a tract of land conveyed to Azur Property
Investment U.S.A., Inc. by deed recorded in Volume 8936, Page 289 of the Real
Property Records of Travis County, Texas, same being the westerly boundary line
of said Lot 1 of "Sunridge Park, Section Two", N31(Degrees)01'17"E for a
distance of 788.86 feet to a 1-inch-diameter iron pipe found on an angle point
hereof;
THENCE continuing with the easterly boundary line of said Azur Property
Investment U.S.A., Inc. tract, same being the westerly boundary line of said
Lot 1, N59(Degrees)34'01"W for a distance of 506.23 feet to a 1/2-inch-diameter
iron rod in concrete found, being a southeasterly corner of "Sunridge Park,
Section One" a subdivision according to the plat thereof recorded in Book 85,
Pages 107B, 107C and 107D, of said Plat Records, being an angle point hereof;
THENCE with the easterly boundary line of said "Sunridge Park, Section
One", continuing with the westerly boundary line of said Lot 1 of "Sunridge
Park, Section Two", N31(Degrees)03'00"E (Bearing Basis) for a distance of
1303.59 feet to a 1-inch-diameter iron pipe in concrete found, being on an angle
point in said easterly boundary line, same being the most northerly corner of
said Lot 1, for the most northerly corner of the herein-described tract;
Exhibit A
Page 2
THENCE in part with the easterly boundary line of said "Sunridge Park,
Section One", the southerly boundary line of Lot 6 of "University Business
Park", a subdivision according to the plat thereof recorded in Book 85, Pages
52C, 52D and 53A of said Plat Records and the northerly boundary line of said
Lot 1 of "Sunridge Park, Section Two", S58(Degrees)57'53"E, at a distance of
456.12 feet pass an iron rod found, being on an easterly corner of said
"Sunridge Park, Section One", same being a southwesterly corner of said Lot 6 of
"University Business Park", continuing for a total distance of 732.26 feet to a
cotton gin spindle set in asphalt on an angle point hereof;
THENCE departing the southerly boundary line of said Lot 6 of
"University Business Park", through the interior of said Lot 1 of "Sunridge
Park, Section Two", the following fourteen (14) courses and distances:
1) S28(Degrees)25'15"W, for a distance of 67.41 feet to a cotton gin
spindle set in asphalt on an angle point hereof;
2) S59(Degrees)50'45"E, for a distance of 172.50 feet to a PK nail set in
concrete on an angle point hereof;
3) S18(Degrees)39'30"E, for a distance of 333.73 feet to a PK nail set in
concrete on an angle point hereof;
4) S71(Degrees)27'23"W, for a distance of 374.42 feet to a PK nail set in
concrete on an angle point hereof;
5) N52(Degrees)04'12"W, for a distance of 55.03 feet to a PK nail set in
concrete on an angle point hereof;
6) S70(Degrees)25'04"W, for a distance of 201.88 feet to a PK nail set in
asphalt on an angle point hereof;
7) S18(Degrees)47'06"E, for a distance of 207.97 feet to a PK nail set in
concrete on an angle point hereof;
8) S71(Degrees)22'55"W, for a distance of 88.20 feet to a cotton gin
spindle set in asphalt on an angle point hereof;
9) S18(Degrees)59'15"E, for a distance of 68.88 feet to punch hole set
in a concrete gutter on an angle point hereof;
10) S70(Degrees)47'24"W, for a distance of 243.96 feet to a
1/2-inch-diameter iron rod with Baker-Aicklen cap set on an angle
point hereof;
Exhibit A
Page 3
11) S18(Degrees)31'43"E, for a distance of 456.56 feet to a cotton gin
spindle set in asphalt on an angle point hereof;
12) N81(Degrees)16'37"W, for a distance of 88.07 feet to a cotton gin
spindle set in asphalt on the point of curvature of a non-tangent curve
to the left, from which the radius point of said curve bears
S04(Degrees)43'15"W, a distance of 325.45 feet;
13) with the arc of said non-tangent curve to the left, having a radius of
325.45 feet, an interior angle of 22(Degrees)54'28", an arc length of
130.12 feet and a chord which bears S83(degrees)16'01"W for a distance
of 129.26 feet to a cotton gin spindle set in asphalt on an angle point
hereof;
14) S09(Degrees)28'45"W, for a distance of 368.38 feet to a
1/2-inch-diameter iron rod with a Baker-Aicklen cap set on a point in
the aforementioned northerly right-of-way line of Ben White Boulevard,
being also the southerly boundary line of said Lot 1, from which a 1/2-
inch-diameter iron rod with Baker-Aicklen cap set on a point being the
southeasterly corner of said Lot 1 of "Sunridge Park, Section Two", the
bears S78(Degrees)29'31"E a distance of 267.25 feet;
THENCE with said northerly right-of-way line, same being the southerly
boundary line of said Lot 1 of "Sunridge Park, Section Two", the following
two (2) courses and distances:
1) N78(Degrees)29'31"W, for a distance of 264.94 feet to a concrete
highway right-of-way marker found on an angle point hereof;
2) N78(Degrees)30'31"W, for a distance of 295.85 feet to the POINT OF
BEGINNING and containing 34.481 acres of land.
Prepared from survey and office computations under the direct supervision of the
undersigned:
/s/ Cecil Jackson Chisholm 7-15-96 (revised 8-7-96)
- -------------------------------------------------
Cecil Jackson Chisholm Date [SEAL]
Registered Professional Land Surveyor No. 4295
Job No. 570-026-10
CJC:ek
EXHIBIT D
---------
to
Deed of Trust, Assignment, Security Agreement
and Financing Statement
Security Tract Property Description
-----------------------------------
TRACT 1: Lot One (1), SUNRIDGE PARK, SECTION TWO, a subdivision in Travis
- -------
County, Texas, according to the map or plat thereof, recorded in
Volume 77, Pages 118-119 of the Plat Records of Travis County, Texas.
TRACT 2: Lots Three (3), Four (4), Five (5) and Six (6), Block "A", and Lots
- -------
One (1) and Four (4), Block "B", all in UNIVERSITY BUSINESS PARK, a
subdivision in Travis County, Texas, according to the map or plat
thereof, recorded in Volume 85, Pages 52C, 52D and 53A of the Plat
Records of Travis County, Texas.
TRACT 3: Lot One (1), Block One (1), AMD ADDITION, a subdivision in Travis
- -------
County, Texas, according to the map or plat thereof, recorded in
Volume 92, Pages 92-93 of the Plat Records of Travis County, Texas.
SAVE, LESS AND EXCEPT THEREFROM
A 34.481 acre tract of land out of Lot One (1) SUNRIDGE PARK SECTION 2, a
subdivision in Travis County, Texas according to the map or plat thereof,
recorded in Volume 77, Pages 118-119 of the Plat Records of Travis County,
Texas, more particularly described as follows on Exhibit C-1 attached to this
-----------
Mortgage.
Schedule 1 to Deed of Trust: FORM
PARTIAL RELEASE OF LIEN
THE STATE OF TEXAS (S)
(S) KNOW ALL BY THESE PRESENTS:
COUNTY OF TRAVIS (S)
WHEREAS, ADVANCED MICRO DEVICES, INC., a Delaware corporation ("Grantor"),
executed that certain Deed of Trust, Assignment, Security Agreement and
Financing Statement dated as of August 1, 1996 (the "Deed of Trust"), to SHELLEY
W. AUSTIN, as Trustee, for the benefit of IBJ SCHRODER BANK & TRUST COMPANY,
as collateral agent ("Collateral Agent"), its successors and assigns, for the
ratable benefit of (i) Bank of America National Trust and Savings Association,
as administrative agent ("Agent"), its successors and assigns, for the benefit
of itself and the Banks under the Credit Agreement, and (ii) Indenture Trustee,
its successors and assigns, for the benefit of the Noteholders under the
Indenture and any subsequent Noteholders; said Deed of Trust being filed for
record on August __, 1996, at Volume ___, Page ___ of the Real Property Records
of Travis County, Texas (the terms "Banks," "Credit Agreement," "Indenture
Trustee," and any other capitalized term used in this Partial Release and not
otherwise defined herein shall have the meaning ascribed thereto in the Deed of
Trust);
WHEREAS, Grantor has now satisfied all requirements for the partial release
of certain property referred to in the Deed of Trust as the "Release Tract" from
the liens and security interests of the Deed of Trust pursuant to the terms and
conditions of Section 6.25 of the Deed of Trust;
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration paid by Grantor to Grantee, the receipt and sufficiency of which
are hereby acknowledged, Grantee does hereby release, relinquish, discharge and
quit claim unto Grantor any and all rights, titles, liens and interests
affecting that certain parcel of land located in Travis County, Texas, and more
particularly described in Exhibit A attached hereto and made a part hereof for
all purposes (the "Release Tract"), including without limitation, all liens and
security interests created under and by virtue of the Deed of Trust, PROVIDED
HOWEVER, nothing herein shall release the liens and security interests of this
Deed of Trust as to any easements appurtenant to the Security Tract, including
without limitation those described as "Easement Tracts" in Exhibit A to the Deed
of Trust notwithstanding that such "Easement Tracts" are located upon and burden
the Release Tract.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT THIS PARTIAL RELEASE SHALL RELEASE ALL LIENS AND
SECURITY INTERESTS ON THE RELEASE TRACT SECURING THE SECURED INDEBTEDNESS (AS
DEFINED IN THE DEED OF TRUST), BUT THE SAME SHALL IN NO WISE AFFECT THE VALIDITY
OF SUCH SECURED INDEBTEDNESS OR RELEASE,
AFFECT OR IMPAIR ANY LIENS, SECURITY INTERESTS AND CLAIMS HELD BY GRANTEE,
AGENT, THE BANKS, THE INDENTURE TRUSTEE, AND/OR THE NOTEHOLDERS UNDER THE DEED
OF TRUST TO THE EXTENT THAT SUCH LIENS, SECURITY INTERESTS AND CLAIMS COVER AND
AFFECT ANY PROPERTY OTHER THAN THE RELEASE TRACT, INCLUDING, WITHOUT LIMITATION,
THE SECURITY TRACT AND ANY AND ALL OTHER PROPERTY AND COLLATERAL (INCLUDING,
WITHOUT LIMITATION, THE EASEMENT TRACTS) DESCRIBED IN THE DEED OF TRUST.
Executed on the day of the acknowledgement herein below taken, to be
effective as of the ___ day of __________, 19__.
IBJ SCHRODER BANK & TRUST
COMPANY, in its capacities
as "Collateral Agent," and as "Grantee"
under the Deed of Trust
By:___________________________________
Name:_________________________________
Title:________________________________
THE STATE OF _________ (S)
(S)
COUNTY OF __________ (S)
This instrument was acknowledged before me on the _______ day of
____________________, 19__, by ________________________________________ of
IBJ SCHRODER BANK & TRUST COMPANY, as Collateral Agent, and as Grantee under the
Deed of Trust.
(SEAL)
________________________________
Notary Public in and for
the State of ______________
________________________________
(Printed Name of Notary)
My commission expires:__________
-2-
Schedule 2 to Deed of Trust: FORM
ENGINEER'S CERTIFICATE
This Certificate is executed by the undersigned engineer (the "Engineer") to
IBJ SCHRODER BANK & TRUST COMPANY, as "Collateral Agent," and as "Grantee"
under the Deed of Trust (herein defined), and to the Agent, the Banks, the
Indenture Trustee, and the Noteholders. Each capitalized term used in this
Certificate and not otherwise defined herein shall have the meaning ascribed
thereto in the Deed of Trust, Assignment, Security Agreement and Financing
Statement dated as of August 1, 1996 (the "Deed of Trust"), from Advanced Micro
Devices, Inc., as "Grantor," to Shelley W. Austin, Trustee, filed for record on
August __, 1996, at Volume ___, Page ___ of the Real Property Records of Travis
County, Texas.
The Engineer hereby CERTIFIES that:
(1) The Engineer has received and reviewed a copy of the Release Tract
Plat covering the Release, Tract, showing recording data and
evidencing final plat approval by the City of Austin, Texas, and a
copy of the Security Tract Plat covering the Security Tract, showing
recording data and evidencing final plat approval by the City of
Austin, Texas. The Release Tract and the Security Tract may be shown
as separate platted lots on a single subdivision plat.
(2) (a) All of the FAB 25 Complex is located entirely on the Security
Tract;
(b) the facilities located on the Security Tract, in the opinion of
the undersigned, will be sufficient from a civil engineering
perspective to operate the FAB 25 Complex; and
(c) all deviations do not result in a net decrease in the area
contained in the Security Tract by more than .50 acres.
Executed as of ___________, 19__.
______________________________
By:___________________________
Name:_________________________
Title:________________________
Schedule 3 to Deed of Trust: FORM
CERTIFICATE OF ADVANCED MICRO DEVICES, INC.
This Certificate is executed by ADVANCED MICRO DEVICES, INC. ("AMD"), a
Delaware corporation, to IBJ SCHRODER BANK & TRUST COMPANY, as "Collateral
Agent," and as "Grantee" under the Deed of Trust (herein defined), and to the
Agent, the Banks, the Indenture Trustee, and the Noteholders. Each capitalized
term used in this Certificate and not otherwise defined herein shall have the
meaning ascribed thereto in the Deed of Trust, Assignment, Security Agreement
and Financing Statement dated as of August 1, 1996 (the "Deed of Trust"), from
Advanced Micro Devices, Inc., as "Grantor," to Shelley W. Austin, Trustee, filed
for record on August __, 1996, at Volume ___, Page ___ of the Real Property
Records of Travis County, Texas.
AMD hereby CERTIFIES that:
(1) AMD has received and reviewed a copy of the Release Tract Plat
covering the Release Tract, showing recording data and evidencing
final plat approval by the City of Austin, Texas, and a copy of the
Security Tract Plat covering the Security Tract, showing recording
data and evidencing final plat approval by the City of Austin, Texas.
The Release Tract and the Security Tract may be shown as separate
platted lots on a single subdivision plat.
(2) There are no deviations affecting the Release Tract shown on the plat
or plats referred to in paragraph (1) from the description of the
Release Tract in the Deed of Trust, and there are no deviations
affecting the Security Tract shown on the plat or plats referred to
in paragraph (1) from the description of the Security Tract in the
Deed of Trust, except as otherwise permitted by Section 6.25(c) of the
Deed of Trust.
(3) If there are any deviations shown on the plat or plats referred to in
paragraph (1) from the description of the Security Tract in the Deed of
Trust, all such deviations taken together do not materially adversely
affect the utility of the Security Tract (including any easements and
appurtenances relating thereto) or materially interfere with the
present or future use by Grantor, its successors or assigns, of the
Security Tract (including any easements and appurtenances relating
thereto) as a wafer fabrication facility; and the FAB 25 Complex is
capable of functioning as a wafer fabrication facility without any
diminution in capacity as a result of any such deviations.
Executed as of ______________________, 19__.
ADVANCED MICRO DEVICES, INC.
By:_________________________
Name:_______________________
Title:______________________
"AMD"