Prepared by, and after recording return to:
Xxxxxxx X. Xxxxxx, Esquire
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
LEASEHOLD CREDIT LINE
DEED OF TRUST
AND SECURITY AGREEMENT
THIS LEASEHOLD CREDIT LINE DEED OF TRUST AND SECURITY
AGREEMENT (this "Deed of Trust"), dated as of the 8th day of December, 1998,
from COVOL TECHNOLOGIES, INC., a Delaware corporation, having an address at 0000
Xxxxx Xxxxxxxx Xxxx, Xxxx, Xxxx 00000 (the "Borrower"), to ________________ and
________________, each a resident of West Virginia, having an address at
_____________________________________________________________ (collectively,
together with their successors in such capacity, the "Trustee"), for the benefit
of MOUNTAINEER SYNFUEL, L.L.C., a Delaware limited liability company, having an
address at 0000 Xxxxx Xxxxxxxx Xxxx, Xxxx, Xxxx 00000 (the "Beneficiary").
WITNESSETH:
WHEREAS, pursuant to a Deed of Ground Lease dated as of May 5,
1998 between Upshur Property, Inc. and the Borrower (the "Ground Lease"), the
Borrower has acquired a leasehold estate in certain real property located in
Upshur County, West Virginia, described on Exhibit A attached hereto (the "Real
Property"). A Memorandum of Lease setting forth certain information with respect
to the Ground Lease is recorded immediately prior hereto.
WHEREAS, pursuant to a Promissory Note dated of even date
herewith in an original maximum aggregate principal amount of NINE MILLION SEVEN
HUNDRED FIFTY THOUSAND DOLLARS ($9,750,000.00) (the "Note"), the Borrower is
indebted to the Beneficiary as more fully set forth therein. The amounts due
from the Borrower to the Beneficiary pursuant to the Note are sometimes referred
to hereinafter as the "Obligations".
THIS IS A CREDIT LINE DEED OF TRUST SECURING THE
PAYMENT OF THE MAXIMUM PRINCIPAL AMOUNT OF $9,750,000.00
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NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and FOR THE PURPOSE OF
SECURING the Obligations (the original maximum aggregate amount of principal to
be secured at any one time by this Deed of Trust being $9,750,000.00), and the
full and punctual performance and observance by the Borrower of all the
covenants, agreements, terms and conditions set forth herein, the Borrower does
hereby irrevocably grant, sell, release, convey, warrant, assign, transfer,
mortgage, pledge, set over and confirm unto the Trustee, its successors and
assigns, IN TRUST, WITH POWER OF SALE, for the benefit and security of the
Beneficiary, under and subject to the terms and conditions hereinafter set
forth, the following described property, to wit:
All of the right, title and interest of the Borrower under the
Ground Lease and in and to the Real Property (collectively, the "Property");
TOGETHER WITH all interests, estates or other claims, both in
law and in equity, which the Borrower now has or may hereafter acquire in (i)
the Property, (ii) all easements, rights-of-way and rights used in connection
therewith or as a means of access thereto, and (iii) all tenements,
hereditaments and appurtenances in any way belonging, relating or appertaining
thereto;
TOGETHER WITH all estate, right, title and interest of the
Borrower now owned or hereafter acquired, in and to any land lying within the
right-of-way of any street, open or proposed, adjoining to the Property, and any
and all sidewalks, alleys, strips of land and gores adjacent to or used in
connection therewith;
TOGETHER WITH all estate, right, title and interest of the
Borrower, now owned or hereafter acquired, in and to any and all buildings and
other improvements now or hereafter erected on the Property (collectively, the
"Improvements");
TOGETHER WITH all estate, right, title and interest of the
Borrower now owned or hereafter acquired, in and to all inventory, machinery,
apparatus, equipment, materials, supplies, goods, fittings, fixtures and
articles of personal property now or hereafter located on or at the Property or
used in connection therewith (including in connection with the construction,
renovation, or improvement thereof) and all additions, and accessions thereto,
replacements therefor and proceeds and profits thereof (collectively, the
"Personal Property");
TOGETHER WITH all estate, claim, demand, right (including all
rights to possession and use, all options and other rights to give consents,
modify, amend, extend, renew, terminate or purchase or sell), title and interest
of the Borrower under all contracts, agreements, understandings or arrangements,
whether written or oral, now or hereafter in effect relating to the development,
construction, reconstruction, repair, alteration, addition to, improvement,
replacement, use, operation or management of the Property and as lessee or
lessor under any leases or occupancy arrangements relating to the Property,
whether oral or written, now or hereafter in effect (all of the foregoing,
collectively, the "Agreements"), provided that any of the
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Agreements that by their terms or by operation of law would become void,
voidable or revocable if mortgaged, pledged or assigned hereunder or if a
security interest therein were granted hereunder are expressly excepted and
excluded from the lien of this Deed of Trust;
TOGETHER WITH all right, claim, demand, title and interest of
the Borrower in, to and under all permits, approvals, certificates, variances,
orders, exemptions and other authorizations, including any condominium permits,
approvals, certificates, variances, orders, assumptions and other authorizations
now or hereafter issued, made or granted with respect to the development,
construction, reconstruction, repair, alteration, addition, improvement,
replacement, use, operation or management of the Property (collectively, the
"Permits"), provided that any of the Permits that by their terms or by operation
of law would become void, voidable or revocable if mortgaged, pledged or
assigned hereunder or if a security interest therein were granted hereunder are
expressly excepted and excluded from the lien of this Deed of Trust;
TOGETHER WITH all reversion or reversions, remainder or
remainders, rents, revenues, proceeds, issues, profits, royalties, income and
other benefits of the Property, the Improvements, the Personal Property and the
Agreements, and the Beneficiary is hereby authorized to collect and receive the
same, to give proper receipts and acquittances therefor and to apply the same to
the payment of the Obligations, notwithstanding the fact that the same may not
then be due and payable;
TOGETHER WITH all right, title and interest of the Borrower in
and to (i) all proceeds of the insurance required to be maintained under section
1.04 of this Deed of Trust and (ii) all awards heretofore or hereafter made to
the Borrower with respect to any part of the Property, the Improvements, the
Agreements, or the Personal Property as the result of the exercise of the power
of eminent domain, including any awards for changes of the grades of streets, or
as the result of any other damage to any part of the Property, the Improvements,
the Agreements or the Personal Property for which compensation shall be given by
any governmental authority (a "Condemnation"), and the Trustee is hereby
authorized to collect and receive the proceeds thereof to the extent of the
right, title and interest of the Borrower, to give proper receipts and
acquittances therefor, and, at the direction of the Beneficiary, to apply the
same to the payment of the Obligations, notwithstanding the fact that the same
may not then be due and payable;
TOGETHER WITH any and all air rights, development rights,
zoning rights or other similar rights or interests which benefit or are
appurtenant to the Property or the Improvements or both and any proceeds arising
therefrom;
Permitting the said Borrower to use and occupy the Property
and the Improvements, until an Event of Default shall have occurred and be
continuing;
All of the foregoing property is sometimes herein referred to
as the "Trust Estate".
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TO HAVE AND TO HOLD the Trust Estate, with all privileges and
appurtenances thereunto belonging, to the Trustee and its successors in trust
and, for the benefit of the Beneficiary and its successors and assigns forever.
PROVIDED ALWAYS, if the Obligations shall be paid in full
according to the terms and provisions hereof and of the Note, then this Deed of
Trust and the lien and estate hereby granted shall cease, determine and be void.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE BORROWER
HEREBY COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
Particular Covenants and
Agreements of the Borrower
Section 1.01. Payment of the Obligations; Title, etc. The
Borrower shall pay the Obligations according to the terms of the Note. The
Borrower warrants and represents that the Borrower (i) is lawfully possessed of
a leasehold estate in the Property and is lawfully possessed of a fee title
estate in and to the Improvements and the Personal Property, subject to no liens
or encumbrances, and (ii) has full power and lawful authority to grant, bargain,
sell, release, convey, warrant, assign, transfer, mortgage, pledge, set over and
confirm unto the Trustee and Beneficiary all right, title and interest of the
Borrower in and to the Trust Estate. The Borrower also warrants and represents
that this Deed of Trust is given to secure indebtedness incurred in connection
with the carrying on of a commercial enterprise. Subject to the rights of the
Borrower under this Deed of Trust, the Borrower shall forever defend the title
to the Trustee in and to the Trust Estate and the validity of the lien and
estate hereof against the claims and demands of all persons whomsoever.
Section 1.02. Further Assurances.
(a) The Borrower shall execute, acknowledge and deliver, from
time to time, such further instruments as the Trustee or the Beneficiary may
reasonably require to accomplish the purposes of this Deed of Trust.
(b) The Borrower, immediately upon the execution and delivery
of this Deed of Trust, and thereafter from time to time, shall cause this Deed
of Trust, each supplement and amendment hereof (collectively, the "Recordable
Document"), to be filed, registered or recorded and refiled, re-registered or
re-recorded in such manner and in such places as may be required by any present
or future law in order to publish notice of and perfect the lien and estate of
this Deed of Trust upon the Trust Estate. The Borrower shall, from time to time,
perform or cause to be performed any other act as required by law and shall
execute or cause to be executed any and all
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further instruments (including financing statements, continuation statements and
similar statements with respect to any Recordable Document) (collectively, "UCC
Documents") reasonably requested by the Trustee or the Beneficiary for such
purposes. Without limiting the foregoing, not more than six months nor less than
three months prior to the date on which any continuation statements are required
to be filed with respect to any Recordable Document, the Borrower shall file all
such continuation statements and send copies evidencing such filing to the
Trustee and the Beneficiary. If the Borrower shall fail to execute any UCC
Document by the date three (3) months prior to the date on which any
continuation statement is required to be filed, the Beneficiary shall be and is
hereby irrevocably appointed the agent and attorney-in-fact of the Borrower to
execute such UCC Document.
(c) The Borrower shall pay all filing, registration and
recording fees, all refiling, re-registration and re-recording fees, and all
expenses incident to the execution, acknowledgment and delivery of the
Recordable Documents, and all Federal, State, county and municipal stamp taxes
and other taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution, acknowledgment and delivery of the Recordable
Documents.
(d) The Borrower has not caused, accepted or permitted, and
shall not cause, accept or knowingly permit, the disposal, release or threatened
release on the Property of any hazardous substance, as that term is defined in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. ss. 9601, et seq., and to Borrower's knowledge no other owner,
user or operator of the Property, past or present, has caused, accepted or
permitted the disposal, release or threatened release of any hazardous substance
on the Property.
Section 1.03. Compliance with Legal Requirements. The Borrower
shall comply with all laws, ordinances, regulations, covenants, conditions and
restrictions now or hereafter affecting the Trust Estate or any part thereof
(collectively, "Legal Requirements"); provided, however, that if the Borrower
contests in good faith and by appropriate proceedings the validity or
applicability of any Legal Requirement so that the enforcement thereof is stayed
or provides the Beneficiary with security in such amount and in such form as the
Beneficiary may require, in its reasonable discretion, then, in either such
case, compliance with the Legal Requirement in question shall be suspended
during the pendency of such contest.
Section 1.04. Required Insurance. The Borrower shall at all
times (i) keep the Trust Property insured for the benefit of Beneficiary, as its
interests may appear, in an amount not less than one hundred percent (100%) of
the full replacement cost of such Trust Property, (ii) carry and maintain or
cause others to carry and maintain such liability and indemnity insurance as may
be required from time to time by the Beneficiary, and (iii) carry and maintain
or cause others to carry and maintain workers' compensation and disability
insurance to the fullest extent required by law. Upon request of the
Beneficiary, the originals of all such policies and renewals thereof, together
with receipts satisfactory to the Beneficiary evidencing payment thereof, shall
be delivered to and held by the Beneficiary.
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Section 1.05. Insurance Proceeds. (a) After the happening of
any casualty to the Property, the Improvements or the Personal Property or any
part thereof, the Borrower shall give prompt notice thereof to the Beneficiary
and the Trustee.
(b) Any insurance proceeds shall be paid over promptly to the
Beneficiary, and the Beneficiary, at its sole discretion, may apply such sums,
in whole or in part, to the repair, restoration and replacement of the Property,
the Improvements or the Personal Property, or to the payment of the indebtedness
secured by this Deed of Trust in such order of priority as the Beneficiary shall
determine.
Section 1.06. Assignments of Policies Upon Foreclosure. In the
event of foreclosure of this Deed of Trust or other transfer of title or
assignment of the Trust Estate in extinguishment, in whole or in part, of the
Obligations, to the extent permitted by the Borrower's policies of insurance,
all right, title and interest of the Borrower in and to all policies of
insurance shall inure to the benefit of and pass to the successors in interest
to the Borrower or the purchaser or grantee of the Trust Estate or any part
thereof.
Section 1.07. Indemnification; Waiver of Offset. (a) If the
Trustee or the Beneficiary is made a party defendant to any litigation
concerning this Deed of Trust or the Trust Estate or any part thereof or
interest therein, or concerning the occupancy thereof by the Borrower, and such
litigation did not arise as a result of the gross negligence or willful
misconduct of the Trustee or the Beneficiary, as the case may be, then the
Borrower shall indemnify, defend and hold the Trustee or the Beneficiary, as the
case may be, harmless from and against all liability by reason of said
litigation, including reasonable attorneys' fees and expenses in any such
litigation, whether or not any such litigation is prosecuted to judgment. If the
Trustee or the Beneficiary in good faith commences an action against the
Borrower to enforce any of the terms hereof or because of the breach by the
Borrower of any of the terms hereof, or for the recovery of any of the
Obligations, then the Borrower shall, to the extent permitted by law, pay to the
Trustee or the Beneficiary, as the case may be, its reasonable attorneys' fees
and expenses, and the right to such attorneys' fees and expenses shall be deemed
to have accrued on the commencement of such action, and shall be enforceable
whether or not such action is prosecuted to judgment, provided that the Borrower
shall not be liable for any amounts to be paid in settlement unless Borrower has
consented in writing to such settlement, which consent shall not be unreasonably
withheld. If a Default shall occur and be continuing, the Trustee or the
Beneficiary may employ an attorney or attorneys to protect its rights hereunder,
and in the event of such employment following any Default by the Borrower, the
Borrower shall, to the extent permitted by law, pay the reasonable attorneys'
fees and expenses incurred by the Trustee or the Beneficiary, as the case may
be, whether or not an action is actually commenced against the Borrower by
reason of such Default. The Borrower will assume the defense of any action
against the Trustee or the Beneficiary covered by the indemnification set forth
in this Section, including the retaining of counsel selected by Borrower and the
payment by the Borrower of reasonable counsel's fees and expenses relating to
such defense and of the aggregate amount to be paid at settlement of any
litigation if such settlement is effected with the written consent of the
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Borrower. The Trustee and the Beneficiary shall have the right to retain
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the Trustee
and/or the Beneficiary unless the retaining of such counsel has been
specifically authorized in writing by the Borrower or the use of counsel chosen
by the Borrower to represent the Trustee and/or the Beneficiary would present
such counsel with a conflict of interest.
(b) The Borrower hereby waives any and all right to claim or
recover against the Trustee or the Beneficiary, or their respective officers,
employees, agents and representatives, for loss of or damage to the Borrower,
the Trust Estate, the property of the Borrower or the property of others under
the control of the Borrower from any cause insured against or required to be
insured against under this Deed of Trust unless arising from the gross
negligence or willful misconduct of the Trustee or the Beneficiary.
Section 1.08. Impositions. The Borrower shall pay, or, where a
third party is responsible for payment, cause the payment by third parties,
before any fine, penalty, interest or cost attaches thereto, all taxes,
assessments, water and sewer rates, utility charges and all other governmental
or nongovernmental charges or levies now or hereafter assessed or levied against
the Property, the Improvements, the Personal Property or any other part of the
Trust Estate or upon the lien or estate of the Trustee or the Beneficiary
therein (collectively, "Impositions"), as well as all claims for labor,
materials or supplies which, if unpaid, might by law become a prior lien
thereon, and as soon as possible after request by the Trustee or the Beneficiary
shall cause receipts showing payment of any of the foregoing to be exhibited;
provided, however, that if by law any Imposition may be paid in installments
(whether- or not interest shall accrue on the unpaid balance thereof), such
Imposition may be paid in installments (together with accrued interest on the
unpaid balance thereof) as the same respectively become due, before any fine,
penalty or cost attaches thereto; provided further, however, that if the
Borrower or other party responsible for payment contests in good faith and by
appropriate proceedings the validity or applicability of any Imposition or
claims for labor, materials or supplies and provides to the Beneficiary security
in such amount and in such form as the Beneficiary may reasonably require, then,
in either such case, compliance with the Imposition in question may be suspended
during the pendency of such contest.
Section 1.09. Limitations of Use. Without the consent of the
Beneficiary, the Borrower shall not initiate, join in or consent to any change
in any private restrictive covenant, zoning ordinance or other public or private
restrictions limiting or defining the uses which may be made of the Property and
the Improvements or any part thereof.
Section 1.10. Encumbrances. The Borrower shall discharge all
existing liens and encumbrances on the Property.
Section 1.11. Estoppel Certificates. The Borrower shall upon
request by the Beneficiary, but not more often than twice per calendar year,
within twenty (20) days of such
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request furnish to the Beneficiary a written statement, duly acknowledged, of
the unpaid amount of the Obligations and whether any offsets or defenses exist
against the Obligations.
Section 1.12. Actions by Trustee and/or Beneficiary to Protect
Trust Estate. If the Borrower shall fail to (i) perform and observe any of the
terms, covenants or conditions required to be performed or observed by it; (ii)
cause the insurance required by section 1.04 to be effected; (iii) make (or
cause to be made) the payments required by section 1.02(c) or section 1.08; or
(iv) perform or observe any other covenants or agreements to be performed or
observed by the Borrower hereunder, the Trustee or the Beneficiary may, without
obligation so to do, at any time after ten (10) days' written notice to the
Borrower (except in any emergency) and for so long as such failure by the
Borrower continues, effect, pay, perform or observe the same. Each sum,
including reasonable attorneys' fees, so expended by the Trustee or Beneficiary
or expended to sustain the lien and estate of this Deed of Trust or its
priority, or to protect or enforce any of the rights of the Trustee or the
Beneficiary under this Deed of Trust, shall (together with interest thereon from
and including the date of expenditure of such sum until the same shall be paid
in full at the rate of ten percent (10%) per annum (the "Default Rate")) be a
lien on the Trust Estate, be deemed to be added to the Obligations, and be paid
by the Borrower within ten (10) days after demand therefor. In any action or
proceeding to enforce this Deed of Trust or to recover or collect the
Obligations, the provisions of law respecting the recovery of costs,
disbursements and allowances shall prevail unaffected by this covenant.
Section 1.13. Condemnation. (a) If the Property, the
Improvements or the Personal Property or any part thereof or interest therein,
are taken or damaged by reason of any Condemnation, or if the Borrower receives
any notice or other information regarding such proceeding, the Borrower shall
give prompt notice thereof to the Beneficiary and the Trustee.
(b) Subject to the rights of the landlord under the Ground
Lease with respect to compensation in connection with any taking of all or part
of the Property, all compensation, awards and other payments or relief in any
condemnation (collectively, "Condemnation Proceeds") shall, at the option of the
Beneficiary, be distributed first to the Beneficiary to be applied to the
payment of the indebtedness secured by this Deed of Trust in such order of
priority as the Beneficiary shall determine. The Beneficiary shall be entitled
at its option to participate in any compromise or settlement in connection with
such Condemnation, and the Borrower shall within ten (10) Business Days after
request therefor, reimburse the Beneficiary for all out-of-pocket expenses
(including reasonable attorneys' fees) incurred by the Beneficiary in connection
with such participation. The Borrower shall not make any compromise or
settlement in connection with any Condemnation without the approval of the
Beneficiary.
Section 1.14. Additional Security. If the Beneficiary at any
time holds additional security for the Obligations, and if an Event of Default
shall have occurred and be continuing, the Beneficiary may enforce the sale
thereof or otherwise realize upon the same, at its option, either before or
concurrently herewith or after a sale is made hereunder.
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Section 1. 15. Disposition of Trust Estate. Notwithstanding
any other provision hereof, and except with respect to the sale of inventory in
the ordinary course of business, the Borrower shall not sell, assign, transfer,
pledge or otherwise transfer or encumber or dispose of all or part of the Trust
Estate, whether voluntary or by operation of law, except with the prior written
consent of the Beneficiary.
Section 1.16. Subordination of Leases. All leases or subleases
entered into by the Borrower (or any other entity representing the Borrower or
succeeding to the Borrower's position) in respect of the Property shall be
subordinate to and subject to this Deed of Trust and shall contain a clause to
that effect.
Section 1.17. Hazardous Materials; Contamination.
(a) The Borrower represents, warrants and covenants that (i)
the Trust Estate and the business operations occurring thereon comply with all
applicable federal, state and local environmental and hazardous waste laws and
regulations; (ii) no enforcement actions are pending or threatened against the
Trust Estate; (iii) to the best of its knowledge, during the period of its
ownership of the Trust Estate, there has been no disposal, release or threatened
release of hazardous substances, wastes or materials or environmental
contaminants on, from or under the Trust Estate; (iv) it has no knowledge of
(and has no reason to have knowledge of) any presence, disposal, release or
threatened release of any hazardous substances, wastes or materials or
environmental contaminants on, from or under the Trust Estate that may have
occurred prior to the Borrower's acquisition of title to the Trust Estate; (v)
neither it nor to the best of its knowledge any lessee under any lease has
received any notice from any governmental agency of a violation of any
environmental or hazardous waste law or regulation; (vi) it has not used and
does not intend to use or to allow the Trust Estate to be used in a manner which
would violate applicable federal, state and local environmental or hazardous
waste laws or regulations; (vii) during the period of its ownership of the Trust
Estate there has been no litigation or administrative enforcement actions or
proceedings brought or, to its knowledge, threatened to be brought, nor has the
Borrower reached any settlements with anyone alleging the presence, disposal,
release or threatened release of any hazardous waste, substance or material or
any environmental contaminant on, from or under the Trust Estate and (viii) it
shall keep or cause the Trust Estate to be kept free of hazardous wastes. The
terms "disposal", "release", "threatened release", "hazardous substances",
"hazardous wastes" "hazardous materials" and "environmental contaminants" mean
and include any hazardous, toxic or dangerous waste, substance, or material, or
any disposal, discharge, release, or threatened release, or any term defined as
such in (or for purposes of) the federal Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, the Resources Conservation and
Recovery Act, as amended, the Federal Clean Water Act, as amended, the Federal
Clean Air Act, as amended, the Emergency Planning and Community Right to Know
Act, as amended, or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter may be in effect.
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(b) The Borrower shall comply with all laws, ordinances,
orders, rules and regulations of all federal, state, county and municipal
governments and appropriate departments, commissions, boards and officers
thereof which now are or at any time in the future may be (i) applicable to the
Trust Estate or (ii) related to asbestos, radon, environmental conditions,
environmental contaminants, toxic wastes, hazardous wastes, hazardous materials,
solid wastes or similar matters (collectively, "Legal Requirements"). The
Borrower shall indemnify and hold harmless the Trustee or the Beneficiary and
their affiliates from and against all loss, cost, liability and expense. (x) in
any manner arising out of or related to any violation of or failure to comply
with any Legal Requirement, (y) imposed upon the Trustee or the Beneficiary, an
affiliate of the Trustee or the Beneficiary or the Borrower by any Legal
Requirement or (z) in any manner arising out of or related to the presence, use,
storage, disposal or transport of any hazardous materials or environmental
contaminants found in, on or under, or affixed to, or emanating from, the Trust
Estate (including, without limitation, (i) all foreseeable and all unforeseeable
damages, directly or indirectly arising out of the use, generation, storage or
disposal of hazardous materials or environmental contaminant by the Borrower or
any prior owner or operator of the Trust Estate, and (ii) all costs of any
required or necessary repair, clean-up or detoxification and the preparation of
any closure or other required plans), whether such action is required or
necessary prior to or following transfer of title to the Trust Estate, to the
full extent that such action is attributable, directly or indirectly, to the
presence or use, generation, storage, release, threatened release or disposal of
hazardous materials or environmental contaminants by any person on the Trust
Estate; provided that this. sentence shall not apply to any loss, cost,
liability or expense arising from the act of the Trustee or Beneficiary or the
failure of the Trustee or the Beneficiary to act when legally required to do so.
The foregoing indemnity shall survive the repayment in full of the Obligations.
If any action or proceeding is brought against the Beneficiary in respect of or
in connection with any of the foregoing indemnified matters, the Borrower shall
upon notice from the Beneficiary defend such action or proceeding by counsel
satisfactory to the Beneficiary. The Trust Estate shall at all times comply with
all zoning, subdivision regulations, building restrictions and other Legal
Requirements.
(c) The Borrower, as promptly as possible upon request, but
only if the Beneficiary has a good faith reason to believe that a problem
exists, shall furnish to the Beneficiary a radon and/or other hazardous waste
and/or other environmental contaminant inspection report, at the cost and
expense of the Borrower, covering the Trust Estate (i) in form, scope and
substance satisfactory to the Beneficiary and (ii) prepared by an inspector
selected and commissioned by the Beneficiary. At the election of the
Beneficiary, the Borrower shall remove, encapsulate or otherwise deal with any
radon and/or other hazardous waste and/or other environmental contaminant on the
Trust Estate at the Borrower's cost and expense in a manner reasonably
satisfactory to the Beneficiary.
Section 1.18. Deed of Trust Secures Future Advances. This Deed
of Trust is a credit line deed of trust for the purposes of Section 38-1-14 of
the West Virginia Code, and the aggregate principal amount of the loans or
indebtedness secured by this Deed of Trust shall not exceed the maximum
principal amount of $9,750,000.00, and this Deed of Trust is also security
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for the payment of interest on such principal sums and for taxes, insurance
premiums and other obligations, including interest thereon, undertaken by the
Beneficiary or the Trustee (to the extent permitted by law) pursuant to the
provisions of this Deed of Trust. THE INDEBTEDNESS SECURED HEREBY PROVIDES FOR
NON-OBLIGATORY FUTURE ADVANCES PURSUANT TO THE TERMS OF THE NOTE NOT TO EXCEED
THE MAXIMUM PRINCIPAL AMOUNT OF $9,750,000.00. ALL NOTICES OF LIENS, CLAIMS OR
ENCUMBRANCES AGAINST THE PROPERTY COVERED HEREBY SHALL BE SENT TO THE
BENEFICIARY AT THE ADDRESS SPECIFIED IN THE FIRST PARAGRAPH OF THIS DEED OF
TRUST.
ARTICLE II
Security Agreement
Section 2.01. Creation of Security Interest in the Trust
Estate. The Borrower hereby grants to the Beneficiary a security interest in
such portion of the Trust Estate that is not real property (including all of the
Personal Property, the Agreements and the Permits) for the purpose of securing
the Obligations.
Section 2.02. Representations and Warranties of the Borrower.
The Borrower hereby warrants, represents and covenants that: (a) the Personal
Property is not used or bought for personal, family or household purposes; and
(b) this Deed of Trust constitutes a Security Agreement as that term is used in
the Uniform Commercial Code in effect in the State of West Virginia.
Section 2.03. Fixture Fling. This instrument is to be filed
for record in the real estate records of the County in which the Real Property
is located so as to serve as a fixture filing pursuant to West Virginia Code
Chapter 46, Article 9, Section 402.
Section 2.04. Technology License. The Borrower hereby grants
to the Beneficiary an irrevocable non-exclusive, royalty-free license to use the
technology of the Borrower described on Exhibit B hereto at the Property at any
and all times, but otherwise subject to the terms and conditions of the May 5,
1998 Technology License and Binder Purchase Agreement between the Borrower and
the Beneficiary (i) during which an Event of Default has occurred and is
continuing, or (ii) following a foreclosure pursuant to this Deed of Trust until
such time as the Note and all obligations of the Borrower under the Deed of
Trust and under any judgement obtained with respect to the Note or this Deed of
Trust have been satisfied in full.
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ARTICLE III
Events of Default; Remedies; Etc.
Section 3.01. Event of Default. Borrower shall be in default
under this Agreement upon the occurrence and continuation of any of the
following events or conditions (each, an "Event of Default"):
(a) an "Event of Default" as specified and defined in the Note
or in the Security Agreement of even date herewith between the Borrower and
Mountaineer Synfuel, L.L.C.
(b) any material default in the performance of any obligation
of Borrower hereunder; and
(c) levy or seizure, or attachment of any of the Trust Estate.
Section 3.02. Remedies.
(a) If an Event of Default shall have occurred and be
continuing, this Deed of Trust may, to the extent permitted by law, be enforced
as a deed of trust and the Trustee or the Beneficiary may exercise any right,
power or remedy permitted to it hereunder or by law, and, without limiting the
generality of the foregoing, the Trustee or the Beneficiary may, to the extent
permitted by law:
(i) enter and take possession of the Trust Estate or
any part thereof, exclude the Borrower and all persons
claiming under the Borrower whose claims are junior to this
Deed of Trust, wholly or partly therefrom, and use, operate,
manage and control the same as the Beneficiary shall deem
best, and upon such entry, from time to time at the expense of
the Trust Estate, make all such repairs, replacements,
alterations, additions or improvements to the Trust Estate or
any part thereof as the Beneficiary may deem proper; and
(ii) personally or by agents, with or without entry,
if the Beneficiary shall deem it advisable:
(a) exercise THE POWER OF SALE granted by
this Deed of Trust and sell all or any portion of the
Trust Estate in accordance with applicable West
Virginia law for cash in hand on the day of sale,
unless otherwise
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specified by the Beneficiary to the highest bidder at
public auction at a sale or sales held at such place
or places and time or times and upon such notice and
otherwise in such manner as may be required by law,
or in the absence of any such requirement, as the
Beneficiary may deem appropriate and from time to
time adjourn any such sale by announcement at the
time and place specified for such sale or for such
adjourned sale without further notice, except such as
may be required by law;
(b) proceed to protect and enforce its
rights under this Deed of Trust, by suit for specific
performance of any covenant contained herein, or in
aid of the execution of any power granted herein, or
for the foreclosure of this Deed of Trust and the
sale of the Trust Estate under the judgment or decree
of a court of competent jurisdiction, or for the
enforcement of any other right as the Trustee or the
Beneficiary shall deem most effectual for such
purpose or;
(c) exercise any or all of the remedies
available to a secured party under the applicable
Uniform Commercial Code, including:
(1) either personally or by means of
a court appointed receiver, take possession
of all or any of the Trust Estate that is
not real property and exclude therefrom the
Borrower and all persons claiming under the
Borrower and thereafter hold, store, use,
operate, manage, maintain and control, make
repairs, replacements, alterations,
additions and improvements to and exercise
all rights and powers of the Borrower in
respect of all or any of the Trust Estate
that is not real property. If the
Beneficiary demands or attempts to take
possession of all or any of the Trust Estate
that is not real property in the exercise of
any rights hereunder, the Borrower shall
promptly turn over and deliver complete
possession thereof to the Beneficiary;
(2) without notice to or demand upon
the Borrower make such payments and do such
acts as the Beneficiary may deem necessary
to protect its security interest in all or
any of the Trust Estate that is not real
property including paying, purchasing,
contesting or compromising any encumbrance
which is prior to or superior to the
security interest granted hereunder, and in
exercising any such powers or authority to
pay all expenses incurred in connection
therewith;
(3) require the Borrower to assemble
all or any of the Trust Estate that is not
real property at a place designated by the
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Beneficiary and convenient to both parties,
and promptly to deliver it to the
Beneficiary, or its designated agent or
representative. The Beneficiary, and its
agents and representatives, shall have the
right to enter upon the premises and
property of the Borrower to exercise the
Beneficiary's rights hereunder;
(4) sell, lease or otherwise dispose
of all or any of the Trust Estate that is
not real property at public sale, with or
without having all or any of the Trust
Estate that is not real property at the
place of sale, and upon such terms and in
such manner as the Beneficiary may
reasonably determine (the Trustee or the
Beneficiary may be a purchaser at any such
sale); and
(5) the Beneficiary shall give the
Borrower at least ten (10) days' prior
notice of the time and place of any public
sale of all or any of the Trust Estate that
is not real property or other intended
disposition thereof.
(b) If an Event of Default shall have occurred and be
continuing, the Beneficiary, to the extent permitted by law, shall be entitled
as a matter of right to the appointment of a receiver of the Trust Estate,
without notice or demand, without the requirement for a bond, and without regard
to the adequacy of the security for the Obligations or the solvency of the
Borrower. The Borrower hereby irrevocably consents to such appointment and
waives notice of any application therefor. Any such receiver or receivers shall
have all the usual powers and duties of receivers in like or similar cases and
all the powers and duties of the Beneficiary in case of entry as provided in
section 3.01(a)(i) and shall continue as such and exercise all such powers until
the date of confirmation of sale of the Trust Estate, unless such receivership
is sooner terminated.
(c) If an Event of Default shall have occurred and be
continuing, the Borrower hereby also assents to the passage of a decree by a
court of competent jurisdiction for the sale of the Trust Estate pursuant to the
terms of this Deed of Trust and applicable West Virginia law.
(d) In any sale under any provision of this Deed of Trust or
pursuant to any judgment or decree of court, the Trust Estate, to the extent
permitted by law, may be sold in one or more parcels or as an entirety and in
such order as the Trustee or the Beneficiary may elect, without regard to the
right of the Borrower, or any person claiming under the Borrower to the
marshalling of assets. The purchaser at any such sale shall take title to the
Trust Estate or the part thereof so sold free and discharged of the estate of
the Borrower therein, the purchaser being hereby discharged from all liability
to see to the application of the purchase money. Any person, including the
Beneficiary and the Trustee, may purchase at any such sale. Upon the completion
of any such sale made by the Trustee or the Beneficiary or by virtue of this
Section 3.01, the Trustee shall execute and deliver to the purchaser an
appropriate instrument which shall
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effectively transfer all of the Borrower's and the Trustee's estate, right,
title, interest, property, claim and demand in and to the Trust Estate or
portion thereof so sold, but without any covenant or warranty, express or
implied. The Trustee and the Beneficiary are hereby irrevocably appointed the
attorneys-in-fact of the Borrower in its name and stead to make all appropriate
transfers and deliveries of the Trust Estate or any portions thereof so sold
and, for that purpose, the Beneficiary or the Trustee, or both, may execute all
appropriate instruments of transfer, and may substitute one or more persons with
like power, the Borrower hereby ratifying and confirming all that said attorneys
or such substitute or substitutes shall lawfully do by virtue hereof. Any sale
or sales made under or by virtue of this Deed of Trust, to the extent not
prohibited by law, shall operate to divest all the estate, right, title,
interest, property, claim and demand whatsoever, whether at law or in equity, of
the Borrower in and to the Trust Estate, or any portions thereof so sold, and
shall be a perpetual bar both at law and in equity against the Borrower and
against any and all persons claiming or who may claim the same, or any part
thereof, by through or under the Borrower. The powers and agency herein granted
are coupled with an interest and are irrevocable.
(e) In the event that foreclosure proceedings are instituted
hereunder but are not completed, Trustee shall be reimbursed for all reasonable
costs and expenses so incurred by Trustee, together with interest thereon until
paid at the Default Rate.
Section 3.03. Application of Proceeds. The proceeds of any
enforcement of this Deed of Trust, including any sale made either under the
power of sale hereby given or under a judgment, order or decree made in any
action to foreclose or to enforce this Deed of Trust shall be applied as
determined by the Beneficiary in a manner consistent with Section 38-1-7 of the
Code of West Virginia, as from time to time amended.
Section 3.04. Right to Xxx. If an Event of Default has
occurred and is continuing, the Trustee and the Beneficiary shall have the right
from time to time to xxx for any sums required to be paid by the Borrower under
the terms of this Deed of Trust as the same become due, without regard to
whether or not the Obligations shall be, or have become, due and without
prejudice to the right of the Trustee or the Beneficiary thereafter to bring any
action or proceeding of foreclosure or any other action upon the occurrence of
any Event of Default existing at the time such earlier action was commenced.
Section 3.05. Powers of the Trustee and the Beneficiary.
(a) The Trustee or the Beneficiary may at any time or from
time to time renew or extend this Deed of Trust, alter or modify the
same in any way, or waive any of the terms, covenants or conditions
hereof or thereof, in whole or in part, and may release or reconvey any
portion of the Trust Estate or any other security, and grant such
extensions and indulgences in relation to the Obligations, or release
any person liable therefor as the Trustee or the Beneficiary may
determine without the consent of any junior lien or
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encumbrancer, without any obligation to give notice of any kind
thereto, without in any manner affecting the priority of the lien and
estate of this Deed of Trust on or in any part of the Trust Estate, and
without affecting the liability of the Borrower or any other person
liable for any of the Obligations;
(b) No right or remedy herein conferred upon or reserved to
the Trustee or the Beneficiary is intended to be exclusive of any other
right or remedy, and each and every right and remedy shall be
cumulative and in addition to any right or remedy under this Deed of
Trust, and the failure of the Trustee or the Beneficiary to insist at
any time upon the strict observance or performance of any of the
provisions of this Deed of Trust, or to exercise any right or remedy
provided for herein, shall not impair any such right or remedy nor be
construed as a waiver or relinquishment thereof, and
(c) The Trustee and the Beneficiary, and each of them, shall
be entitled to enforce payment and performance of any of the
Obligations and to exercise all rights and powers under this Deed of
Trust or any laws now or hereafter in force, notwithstanding that some
or all of the Obligations may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or
otherwise; neither the acceptance of this Deed of Trust nor its
enforcement, whether by court action or pursuant to the power of sale
or other powers herein contained, shall prejudice or in any manner
affect the Trustee's or the Beneficiary's right to realize upon or
enforce any other security now or hereafter held by the Trustee or the
Beneficiary, it being stipulated that the Trustee and the Beneficiary,
and each of them, shall be entitled to enforce this Deed of Trust and
any other security now or hereafter held by the Trustee or the
Beneficiary in such order and manner as they, in their sole discretion,
may determine; every power or remedy given by this Deed of Trust to the
Trustee or Beneficiary or to which either of them may be otherwise
entitled, may be exercised, concurrently or independently, from time to
time and as often as may be deemed expedient by the Beneficiary, and
either of them may pursue inconsistent remedies.
(d) The Trustee may act through its agent or attorney and it
shall not be necessary for the Trustee to be present in person at any
foreclosure sale under this Deed of Trust.
Section 3.06. Waiver of Stay, Extension, Moratorium Laws;
Equity of Redemption. To the extent permitted by law, the Borrower shall not at
any time insist upon, or plead, or in any manner whatever claim or take any
benefit or advantage of any applicable present or future stay, extension or
moratorium law, which may affect observance or performance of any provision of
this Deed of Trust; nor claim, take or insist upon any benefit or advantage of
any present or future law providing for the valuation or appraisal of the Trust
Estate or any portion thereof prior to any sale or sales thereof which may be
made under or by virtue of Section 3.01; and the Borrower, to the extent that it
lawfully may, hereby waives all benefit or advantage of any such law or laws.
The Borrower for itself and all who may claim under it, hereby waives, to the
extent permitted by applicable law, any and all rights and equities of
redemption from sale
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under the power of sale created hereunder or from sale under any order or decree
of foreclosure of this Deed of Trust and (if an Event of Default shall have
occurred and be continuing) all notice or notices of seizure, and all right to
have the Trust Estate marshalled upon any foreclosure hereof. Neither the
Trustee nor the Beneficiary shall be obligated to pursue or exhaust its rights
or remedies as against any other part of the Trust Estate nor shall the Borrower
have the right to have the Trustee or the Beneficiary proceed in any particular
order.
ARTICLE IV
The Trustee
Section 4.01. Acceptance by Trustee. The Trustee accepts this
trust when this Deed of Trust, duly executed and acknowledged, is made a public
record as provided by law.
Section 4.02. Compensation. The Trustee waives any statutory
fee and shall accept reasonable compensation from the Beneficiary in lieu
thereof for any services rendered by it in accordance with the terms hereof.
Section 4.03. Action in Accordance With Instructions. Upon
receipt by the Trustee of instructions from the Beneficiary at any time or from
time to time, the Trustee shall (a) give any notice or direction or exercise any
right, remedy or power hereunder or in respect of any part or all of the Trust
Estate as shall be specified in such instructions and (b) approve such direction
or exercise as satisfactory to the Trustee or to the Beneficiary. The Trustee
may, but need not, take any of such actions in the absence of such instructions.
At any time or from time to time, upon request of the Beneficiary and
presentation of this Deed of Trust for endorsement, and without affecting the
liability of any person for payment of the Obligations, the Trustee shall
reconvey all or any part of the Trust Estate, consent to the making of any map
or plat thereof, join in granting any easement thereon, or join in any extension
agreement or any agreement subordinating the lien and estate hereof. If there is
at any time more than one person or entity serving as Trustee hereunder, either
of them or any successor of either of them may act on behalf of the Trustee.
Section 4.04. Resignation. The Trustee may resign at any time
upon giving not less than 60 days' prior notice to the Beneficiary, but shall
continue to act as trustee until its successor shall have been chosen and
qualified.
Section 4.05. Successor Trustee. In the event of the death,
removal, resignation or refusal or inability of the Trustee to act, or for any
reason at any time, the Beneficiary shall have the irrevocable power, with or
without cause, without prior notice of any kind, and without applying to any
court, to select and appoint a successor trustee. Each such appointment and
substitution shall be made by notice to the Borrower, the Trustee and successor
trustee and by recording notice of such in each office in which this Deed of
Trust is recorded. Such notice shall
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be executed and acknowledged by the Beneficiary and shall be conclusive proof of
proper appointment of the successor trustee. Such successor shall not be
required to give bond for the faithful performance of its duties unless required
by the Beneficiary.
ARTICLE V
Miscellaneous
Section 5.01. Release by Trustee. Upon payment by Borrower of
the Obligations and the Trustee's expenses, the Trustee shall release this Deed
of Trust by an instrument duly acknowledged, in form for recording.
Section 5.02. Notices. All notices, requests, demands,
consents, approvals or other communications to, upon or by any party hereto
shall be sent to the parties at the addresses set forth in the first paragraph
of this Deed of Trust or at such other address as may be specified in writing to
the parties. The address of the Beneficiary as specified is the address for the
party secured by this Deed of Trust.
Section 5.03. Amendments, Waivers, Etc. This Deed of Trust
cannot be modified, changed or discharged except by an agreement in writing,
duly acknowledged in form for recording, signed by the party against whom
enforcement of such modification, change or discharge is sought. No amendment
shall be deemed approved by or consented to by or effective against the
Beneficiary unless approved in writing by MSDW Synfuels II, Inc. and Xxxxxx Xxx.
Section 5.04. Successors and Assigns. This Deed of Trust shall
bind and inure to the benefit of the parties hereto and their respective
successors and assigns and shall run with the Property, except that the Borrower
may not assign its rights or delegate its obligation hereunder without the prior
consent of the Beneficiary.
Section 5.05. Severability. If any term or provision of this
Deed of Trust or the application thereof to any person or circumstance shall to
any extent be invalid or unenforceable, the remainder of this Deed of Trust, or
the application of such term or provision to persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Deed of Trust shall be valid and enforceable
to the fullest extent permitted by law. Should this Deed of Trust be or become
ineffective as a deed of trust, then it shall be construed and enforced as a
realty mortgage with the Borrower being the mortgagor and the Beneficiary being
the mortgagee.
Section 5.06. No Merger. If both the lessor's and lessee's
estates under any lease or any portion thereof which constitutes a part of the
Trust Estate shall at any time become vested in one owner, this Deed of Trust
and the lien and estate created hereby shall not be destroyed or terminated by
application of the doctrine of merger and, in such event, the Beneficiary shall
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continue to have and enjoy all of the rights and privileges of the Beneficiary
as to the separate estates. In addition, upon foreclosure of this Deed of Trust,
any such lease shall not be destroyed or terminated by application of the law of
merger or as a matter of law or as a result of such foreclosure unless the
Beneficiary or any purchaser at such foreclosure sale shall so elect.
Section 5.07. Limitation of Interest. It is the intention of
the Borrower and the Beneficiary in the execution of the Note to contract in
strict compliance with all applicable usury laws. In furtherance thereof, the
Beneficiary and the Borrower stipulate that none of the terms and provisions
contained in the Note shall ever be construed to create a contract for the use,
forbearance or detention of money requiring payment of interest at a rate in
excess of the maximum interest rate permitted to be charged by applicable law.
The Borrower shall never be liable for unearned interest on the Obligations and
shall never be required to pay interest thereon at a rate in excess of the
maximum interest which may be lawfully charged under applicable usury laws and
this Section 5.07 shall control over all other provisions of the Note executed
in connection herewith or therewith which may be in apparent conflict herewith.
If the Beneficiary shall collect monies which are deemed to constitute interest
which would otherwise increase the effective interest rate on the Obligations to
a rate in excess of that permitted to be charged by applicable usury laws, all
such sums deemed to constitute interest in excess of the legal rate shall be
immediately returned to the Borrower upon such determination.
Section 5.08. Trust is Irrevocable. The trust created hereby
is irrevocable by the Borrower subject to defeasance in accordance with this
Deed of Trust.
Section 5.09. Governing Law. This Deed of Trust shall be
governed by and interpreted in accordance with the law of the State of West
Virginia.
Section 5. 10. Beneficial Owner. The beneficial owner and
holder of the Obligations at the time of execution and delivery hereof is the
Beneficiary, whose resident address is stated in the first paragraph of this
Deed of Trust.
Section 5.11. Status of Parties. It is understood and agreed
that the relationship of the Borrower and the Beneficiary is that of borrower
and lender and that nothing herein or in the Note or any document evidencing or
securing the same shall be construed to constitute a partnership, joint venture
or co-tenancy among the Borrower or the Beneficiary.
[Signatures begin on next page.]
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IN WITNESS WHEREOF, this Deed of Trust has been duly executed,
acknowledged and delivered by the Borrower as of the day and year first above
written.
COVOL TECHNOLOGIES, INC.
[SEAL] By: /Xxxxxxx X. Xxxxxxx/
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
State of _______Utah________) City/County of _Utah________________), to wit:
On this _8th_ day of December, 1998, before me, __Asael X. Xxxxxxxx,
Xx._, a notary public in and for the above-said jurisdiction, personally
appeared ___________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument as __President_________ of Covol Technologies, Inc., the
company which executed and delivered the within instrument and acknowledged to
me that, being informed of the contents thereof, he executed and delivered the
same, voluntarily in his capacity as such, for the purposes therein stated, on
behalf of said company as the free act and deed of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
[SEAL] /Xxxxx X. Xxxxxxxx, Xx./
Notary Public
This Deed of Trust was
prepared by: Xxxxxxx X. Xxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
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