EXHIBIT 10.129
When recorded, return to:
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxx, P.A.
Xxx Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxx 85701
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
This Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing (hereinafter called "Deed of Trust") is made
as of the 8th day of June, 1999, by and among NORD COPPER
CORPORATION, a Delaware corporation, whose mailing address is 000
0xx Xxxxxx, XX, Xxxxx 0000, Xxxxxxxxxxx, Xxx Xxxxxx 00000, and
whose chief executive office (or residence if such party is an
individual without an office) is located at 000 0xx Xxxxxx, XX,
Xxxxx 0000, Xxxxxxxxxxx, Xxx Xxxxxx 00000 , hereinafter called
"Trustor," Xxxxxx X. Xxxxxx, whose mailing address is Xxx Xxxxx
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxx 00000, hereinafter
called "Trustee," and ARIMETCO, INC., a Nevada corporation, whose
mailing address is 0000 Xxxx Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx
00000-0000, hereinafter called "Beneficiary."
WITNESSETH:
SECTION 1. GRANTING CLAUSE; WARRANTY OF TITLE
1.1 Except as provided in Paragraph 4.2 hereof, Trustor
hereby irrevocably grants, transfers, and assigns to Trustee, in
trust, with power of sale, all of Trustee's present and future
estate, right, title and interest in and to that real property
and all buildings and other improvements now thereon or hereafter
constructed thereon (the "Premises"), in the County of Cochise,
State of Arizona, described on Schedule "A" attached hereto and
by this reference made a part hereof, subject to those matters
specifically described on Schedule "B" attached hereto and by
this reference made a part hereof (the "Permitted Exceptions"),
together with all of the following which, with the Premises
(except where the context otherwise requires), are hereinafter
collectively called the "Trust Property":
(a) All appurtenances in and to the Premises;
(b) All water and water rights, ditches and ditch
rights, reservoir and reservoir rights, stock or interests in
irrigation or ditch companies, minerals, oil and gas rights,
royalties, lease or leasehold interests owned by Trustor, now or
hereafter used or useful in connection with, appurtenant to or
related to the Premises;
(c) All right, title and interest of Trustor now owned
or hereafter acquired in and to all streets, roads, alleys and
public places, and all easements and rights of way, public or
private, now or hereafter used in connection with the Premises;
(d) All machinery, equipment, fixtures and materials
now or at any time attached to the Premises together with all
processing, manufacturing and service equipment and other
personal property now or at any time hereafter located on or
appurtenant to the Premises and used in connection with the
management and operation thereof;
(e) Any licenses, contracts, permits and agreements
required or used in connection with the ownership, operation or
maintenance of the Premises, and the right to the use of any
tradename, trademark, or service xxxx now or hereafter associated
with the operation of any business conducted on the Premises;
(f) Any and all insurance proceeds, and any and all
awards, including interest, previously and hereafter made to
Trustor for taking by eminent domain of the whole or any part of
the Premises or any easements therein;
(g) Subject to the rights of Beneficiary under Section
3 hereof, all existing and future leases, subleases, licenses and
other agreements for the use and occupancy of all or any portion
of the Premises and all income, receipts, revenues, rents, issues
and profits arising from the use or enjoyment of all or any
portion of the Premises.
TRUSTOR FURTHER REPRESENTS, WARRANTS, COVENANTS AND AGREES
AS FOLLOWS:
SECTION 2. OBLIGATION SECURED
This Deed of Trust is given for the purpose of securing, in
such order of priority as Beneficiary may elect:
2.1 Payment of the sum of ONE MILLION FIVE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($1,550,000.00) with interest
thereon, extension and other fees, late charges, prepayment
premiums and attorneys' fees, according to the terms of that
Promissory Note dated of even date herewith, made by Trustor,
payable to the order of Beneficiary, and all extensions,
modifications, renewals or replacements thereof (hereinafter
called the "Note"). Subject to any determination by the
Bankruptcy Court in Beneficiary's pending bankruptcy case as to
the amount owed to Cochise County, Beneficiary agrees that
Trustor shall and directs Trustor to pay the principal and
interest amounts due under the Note directly to the Cochise
County, Arizona Treasurer (the "Treasurer") in satisfaction of
the tax liens outstanding on the date hereof against the Xxxxxxx
Camp Property ("Tax Liens") so long as such Tax Liens remain
outstanding. Upon payment in full of the Tax Liens and release
thereof, Trustor agrees to pay the remainder of the amounts due
under the Note to the Treasurer in satisfaction of the Tax Liens
satisfies all payment obligations of the Trustor to the
Beneficiary under the Note for the purchase of the Xxxxxxx Camp
Property; and
2.2 Payment, performance and observance by Trustor of each
covenant, condition, provision and agreement contained herein and
of all monies expended or advanced by Beneficiary pursuant to the
terms hereof, or to preserve any right of Beneficiary hereunder,
or to protect or preserve the Trust Property or any part thereof;
All of the indebtedness and obligations secured by this Deed of
Trust are hereinafter collectively called the "Obligation."
SECTION 3. LEASES; ASSIGNMENT OF RENTS AND LEASES
3.1 To facilitate payment and performance of the
Obligation, Trustor hereby absolutely transfers and assigns to
Beneficiary all right, title and interest of Trustor in and to
(i) all existing and future leases, subleases, licenses and other
agreements for the use and occupancy of all or any part of the
Trust Property, whether written or oral and whether for a
definite term or month to month, including but not limited to
those described on Schedule "C" attached hereto and by this
reference made a part hereof, together with all guarantees of the
lessee's obligations thereunder and together with all extensions,
modifications and renewals thereof (hereinafter called the
"Leases"), and (ii) all income, receipts, revenues, rents, issues
and profits now or hereafter arising from or out of the Leases or
from or out of the Trust Property or any part thereof, including
without limitation room rents, minimum rents, additional rents,
percentage rents, parking and maintenance charges and fees, tax
and insurance contributions, proceeds of the sale of utilities
and services, cancellation premiums, claims for damages arising
from any breach of the Leases, proceeds from any sale or other
disposition of all or any portion of the Trust Property, and all
other benefits arising from the use or enjoyment of, or the
lease, sale or other disposition of, all or any portion of the
Trust Property, together with the immediate and continuing right
to receive all of the foregoing (hereinafter called the "Rents").
In furtherance of this Assignment, and not in lieu hereof,
Beneficiary may require a separate assignment of rents and leases
and/or separate specific assignments of rents and leases covering
one or more of the Leases; the terms of all such assignments are
incorporated herein by reference.
3.2 Trustor hereby authorizes and directs the lessees and
tenants under the Leases that, upon written notice from
Beneficiary, all Rents shall be paid directly to Beneficiary as
they become due. Trustor hereby relieves the lessees and tenants
from any liability to Trustor by reason of the payment of the
Rents to Beneficiary. Nevertheless, Trustor shall be entitled to
collect the Rents until Beneficiary notifies the lessees and
tenants in writing to pay the Rents to Beneficiary. Beneficiary
is hereby authorized to give such notification upon the
occurrence of an Event of Default and at any time thereafter
while such Event of Default is continuing. Receipt and
application of the Rents by Beneficiary shall not constitute a
waiver of any right of Beneficiary under this Deed of Trust or
applicable law, shall not cure any Event of Default hereunder,
and shall not invalidate or affect any act done in connection
with such Event of Default, including, without limitation, any
trustee's sale or foreclosure proceeding.
3.3 All Rents collected by Trustor shall be applied in the
following manner:
First, to the payment of all taxes and lien assessments
levied against the Trust Property, where provision for paying
such is not otherwise made;
Second, to the payment of ground rents (if any) payable
with respect to the Trust Property;
Third, to the payment of any amounts due and owing
under the Obligation;
Fourth, to the payment of current operating costs and
expenses (including repairs, maintenance and necessary
acquisitions of property and expenditures for capital
improvements) arising in connection with the Trust Property;
Fifth, to Trustor or its designee.
All Rents collected by Beneficiary may be applied to the items
above listed in any manner that Beneficiary deems advisable and
without regard to the aforestated priorities.
3.4 Trustor represents and warrants that: (i) the Leases
are in full force and effect and have not been modified or
amended; (ii) the Rents have not been waived, discounted,
compromised, setoff or paid more than one month in advance; (iii)
there are no other assignments, transfers, pledges or
encumbrances of any Leases or Rents; and (iv) neither Trustor nor
the lessees and tenants are in default under the Leases.
3.5 Trustor shall (i) fulfill or perform each and every
material term, covenant and provision of the Leases to be
fulfilled or performed by the lessor thereunder; (ii) give prompt
notice to Beneficiary of any notice received by Trustor of
default thereunder or of any alleged default or failure of
performance that could become a default thereunder, together with
a complete copy of any such notice; and (iii) enforce, short of
termination thereof, the performance or observance of each and
every material term, covenant and provision of each Lease to be
performed or observed by the lessees and tenants thereunder.
3.6 Trustor, without the prior written consent of
Beneficiary (not to be unreasonably withheld) shall not: (i)
cancel, modify or alter, or accept the surrender of, any Lease;
(ii) assign, transfer, pledge or encumber, the whole or any part
of the Leases and Rents to anyone other than Beneficiary; (iii)
accept any Rents more than one month in advance of the accrual
thereof; (iv) do or permit anything to be done, the doing of
which, or omit or refrain from doing anything, the omission of
which, could be a breach or default under the terms of any Lease
or a basis for termination thereof.
3.7 Beneficiary does not assume and shall not be liable for
any obligation of the lessor under any of the Leases and all such
obligations shall continue to rest upon Trustor as though this
assignment had not been made. Beneficiary shall not be liable
for the failure or inability to collect any Rents.
3.8 Neither the Assignment of Rents and Leases contained
herein or in any separate assignment nor the exercise by
Beneficiary of any of its rights or remedies thereunder or in
connection therewith, prior to Beneficiary obtaining actual
possession of the Trust Property as provided in Paragraph 8.2
hereof, shall constitute Beneficiary a "mortgagee in possession"
or otherwise make Beneficiary responsible or liable in any manner
with respect to the Trust Property or the occupancy, operation or
use thereof. In the event Beneficiary obtains actual possession
of the Trust Property as provided in Paragraph 8.2 hereof,
Beneficiary shall have the rights, and Beneficiary's liability
shall be limited, as provided in that Paragraph.
SECTION 4. SECURITY AGREEMENT
4.1 Except as provided in Paragraph 4.2 hereof, this Deed
of Trust shall cover, and the Trust Property shall include, all
property now or hereafter affixed or attached to or incorporated
upon the Premises, which, to the fullest extent permitted by law,
shall be deemed fixtures and a part of the Premises. To the
extent any of the Trust Property consists of rights in action or
personal property covered by the Uniform Commercial Code, this
Deed of Trust shall also constitute a security agreement, and
Trustor hereby grants to Beneficiary, as secured party, a
security interest in such property, including all proceeds
thereof, for the purpose of securing the Obligation. In
addition, except as provided in Paragraph 4.2 hereof, for the
purpose of securing the Obligation, Trustor hereby grants to
Beneficiary, as secured party, a security interest in all of the
property located on, or used in connection with or associated
with the Premises described below in, to, or under which Trustor
now has or hereafter acquires any right, title or interest,
whether present, future, or contingent: all equipment, inventory,
accounts, general intangibles, instruments, documents, and
chattel paper, as those terms are defined in the Uniform
Commercial Code, and all other personal property of any kind
(including without limitation money and rights to the payment of
money), whether now existing or hereafter created, that are now
or at any time hereafter (i) in the possession or control of
Beneficiary in any capacity; (ii) erected upon, attached to, or
appurtenant to, the Premises; (iii) located or used on the
Premises or identified for use on the Premises (whether stored on
the Premises or elsewhere); or (iv) used in connection with,
arising from, related to, or associated with the Premises or any
of the personal property described herein, the construction of
any improvements on the Premises, the ownership, development,
maintenance, leasing, management, or operation of the Premises,
the use or enjoyment of the Premises, or the operation of any
business conducted on the Premises; including without limitation
all such property more particularly described as follows:
(a) Buildings, structures and improvements, and
building materials, fixtures and equipment to be incorporated
into any buildings, structures or improvements;
(b) Goods, materials, supplies, fixtures, equipment,
machinery, furniture and furnishings, including without
limitation, all such items used for (i) generation, storage or
transmission of air, water, heat, steam, electricity, light,
fuel, refrigeration or sound; (ii) ventilation, air-conditioning,
heating, refrigeration, fire prevention and protection,
sanitation, drainage, cleaning, transportation, communications,
maintenance or recreation; (iii) removal of dust, refuse, garbage
or snow; (iv) transmission, storage, processing or retrieval of
information; and (v) floor, wall, ceiling and window coverings
and decorations;
(c) Income, receipts, revenues, rents, issues and
profits, including without limitation, room rents, minimum rents,
additional rents, percentage rents, parking and maintenance
charges and fees, tax and insurance contributions, proceeds of
the sale of utilities and services, cancellation premiums, and
claims for damages arising from the breach of any leases;
(d) Water and water rights, ditches and ditch rights,
reservoirs and reservoir rights, stock or interest in irrigation
or ditch companies, minerals, oil and gas rights, royalties, and
lease or leasehold interests;
(e) Plans and specifications prepared for the
construction of any improvements, including without limitation,
all studies, estimates, data, and drawings;
(f) Documents, instruments and agreements relating to,
or in any way connected with, the operation, control or
development of the Premises, including without limitation, any
declaration of covenants, conditions and restrictions and any
articles of incorporation, bylaws and other membership documents
of any property owners association or similar group;
(g) Claims and causes of action, legal and equitable,
in any form whether arising in contract or in tort, and awards,
payments and proceeds due or to become due, including without
limitation those arising on account of any loss of, damage to,
taking of, or diminution in value of, all or any part of the
Premises or any personal property described herein;
(h) Sales agreements, escrow agreements, deposit
receipts, and other documents and agreements for the sale or
other disposition of all or any part of the Premises or any of
the personal property described herein, and deposits, proceeds
and benefits arising from the sale or other disposition of all or
any part of the Premises or any of the personal property
described herein;
(i) Policies or certificates of insurance, contracts,
agreements or rights of indemnification, guaranty or surety, and
awards, loss payments, proceeds, and premium refunds that may be
payable with respect to such policies, certificates, contracts,
agreements or rights;
(j) Contracts, agreements, permits, licenses,
authorizations and certificates, including without limitation all
architectural contracts, construction contracts, management
contracts, service contracts, maintenance contracts, franchise
agreements, license agreements, building permits and operating
licenses;
(k) Trade names, trademarks, and service marks
(subject to any franchise or license agreements relating
thereto);
(l) Refunds and deposits due or to become due from any
utility companies or governmental agencies;
(m) Replacements and substitutions for, modifications
of, and supplements, accessions, addenda and additions to, all of
the personal property described herein;
(n) Books, records, correspondence, files and
electronic media, and all information stored therein;
together with all products and proceeds of all of the foregoing,
in any form, including all proceeds received, due or to become
due from any sale, exchange or other disposition thereof, whether
such proceeds are cash or non-cash in nature, and whether
represented by checks, drafts, notes or other instruments for the
payment of money. The personal property described or referred to
in this Paragraph 4.1 is hereinafter called the "Personal
Property." The security interests granted in this Paragraph 4.1
are hereinafter severally and collectively called the "Security
Interest." The Personal Property includes and the Security
Interest extends to the particular items shown on Schedule "D"
attached hereto. The parties hereto agree that this Deed of
Trust shall be deemed and is a Security Agreement as defined in
and for all purposes under the Uniform Commercial Code as in
effect in the State of Arizona.
4.2 Notwithstanding anything herein to the contrary, the
Trust Property shall not include and the Security Interest
granted to Beneficiary under Paragraph 4.1 shall not extend to
and shall not be in any buildings, structures, improvements,
fixtures, machinery, equipment, furniture and furnishings, or any
contracts, leases documents, instruments or agreements thereof;
hereafter acquired by Trustor unless such property was acquired
in whole or in part with the proceeds of the Trust Property or
are replacements in whole or in part for the Trust Property.
4.3 The Security Interest shall be self-operative with
respect to the Personal Property, but Trustor shall execute and
deliver upon receipt of written request therefor from Beneficiary
such additional security agreements, financing statements and
other instruments as may be reasonably requested in order to
impose the Security Interest more specifically upon the Personal
Property. The Security Interest, at all times, shall be prior to
any other interests in the Personal Property except any lien or
security interest granted in connection with any Permitted
Exception. Trustor shall act and perform as necessary and shall
execute and file all security agreements, financing statements,
continuation statements and other documents reasonably requested
by Beneficiary to establish, maintain and continue the perfected
Security Interest. Trustor, on demand, shall promptly pay all
costs and expenses of filing and recording.
4.4 Trustor shall not sell, transfer, assign or otherwise
dispose of any Personal Property or any interest therein without
obtaining the prior written consent of Beneficiary not to be
unreasonably withheld, except Personal Property that Trustor is
obliged to replace pursuant to the terms hereof. Unless
Beneficiary then agrees otherwise in writing, all proceeds from
any permitted sale or disposition in excess of that required for
replacements shall be paid to Beneficiary to be applied to the
Obligation, whether or not then due. Trustor shall keep the
Personal Property free of all security interests or other
encumbrances, except the Security Interest and any security
interests and encumbrances granted in connection with any
Permitted Exception. Although proceeds of Personal Property are
covered hereby, this shall not be construed to mean that
Beneficiary consents to any sale of the Personal Property.
4.5 Trustor shall keep and maintain the Personal Property
in at least as good condition and repair as in existence as of
the date hereof, normal wear and tear excepted, and shall
promptly replace any part thereof that from time to time may
become obsolete, badly worn or in a state of disrepair. All such
replacements shall be free of any other security interest or
encumbrance, except any security interest or encumbrance granted
in connection with any Permitted Exception.
4.6 Except for purposes of replacement and repair, Trustor,
without the prior written consent of Beneficiary not to be
unreasonably withheld, shall not remove, or permit the removal
of, any Personal Property from the Premises.
4.7 Trustor hereby warrants, covenants and agrees that: (i)
the Personal Property is or will be used primarily for business
(other than farm) purposes; (ii) the Personal Property will be
kept at the Premises; and (iii) Trustor's records concerning the
Personal Property will be kept at Trustor's address as set forth
in the beginning of this Deed of Trust or at the Premises.
4.8 Trustor represents and warrants that (i) the name
specified above for Trustor is the true and correct legal name of
Trustor, and (ii) the address specified above is the address of
Trustor's chief executive office. Trustor shall give Beneficiary
immediate written notice of any change in the location of: (i)
Trustor's chief executive office, as set forth in the beginning
of this Deed of Trust; (ii) the Personal Property or any part
thereof; or (iii) Trustor's records concerning the Personal
Property. Trustor shall give Beneficiary immediate written
notice of any change in the name, identity or structure of
Trustor.
4.9 All covenants and warranties of Trustor contained in
this Deed of Trust shall apply to the Personal Property whether
or not expressly referred to in this Section 4. The covenants
and warranties of Trustor contained in this Section 4 are in
addition to, and not in limitation of, those contained in the
other provisions of this Deed of Trust.
4.10 Upon its recording in the real property records, this
Deed of Trust shall be effective as a financing statement filed
as a fixture filing. In addition, a carbon, photographic or
other reproduced copy of this Deed of Trust and/or any financing
statement relating hereto shall be sufficient for filing and/or
recording as a financing statement. The filing of any other
financing statement relating to any personal property, rights or
interests described herein shall not be construed to diminish any
right or priority hereunder.
SECTION 5. PROTECTION AND PRESERVATION OF THE TRUST PROPERTY
5.1 Trustor shall neither commit nor permit to occur any
waste upon the Trust Property but shall at all times make or
cause to be made all commercially reasonable repairs,
maintenance, renewals and replacements as may be necessary to
maintain the Trust Property in at least as good condition and
repair as in existence as of the date hereof, normal wear and
tear excepted.. Trustor shall neither use nor permit the use of
the Trust Property in material violation of any applicable
statute, ordinance or regulation, including, without limitation,
the Americans With Disabilities Act of 1990 and corresponding
rules and regulations (the "ADA"), or any policy of insurance
insuring the Trust Property. Trustor shall not Release on, under
or about the Premises any Hazardous Substance nor permit any
third party to do so except in substantial accordance with
Environmental Law. As used herein, the following terms shall
have the meanings specified below:
The term "Environmental Law" shall mean any federal, state
or local statute, ordinance, or regulation pertaining to health,
industrial hygiene, or the environment, including, without
limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et seq. ("CERCLA"); the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901, et seq. ("RCRA");
and the Arizona Environmental Quality Act, Title 49, Arizona
Revised Statutes, and all rules adopted and guidelines
promulgated pursuant to the foregoing.
The term "Hazardous Substance" shall include:
(a) those substances included within the definitions
of "hazardous substances," "hazardous materials," "toxic
substances," or "solid waste" in CERCLA, RCRA, and the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq.,
and in the regulations promulgated pursuant thereto;
(b) those substances defined as "hazardous substances"
in A.R.S. Section 49-201 and in rules adopted or guidelines
promulgated pursuant thereto;
(c) those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and amendments
thereto) or by the Environmental Protection Agency as hazardous
substances (40 CFR Part 302 and amendments thereto); and
(d) all other substances, materials and wastes that
are, or that become, regulated under, or that are classified as
hazardous or toxic under, any Environmental Law.
The term "Release" shall mean any releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing, or dumping.
5.2 Trustor shall promptly complete any improvements that
may be commenced, in good and workmanlike manner and in
conformity with the ADA. Trustor shall repair and restore, in
conformity with the ADA, any portions of the Trust Property that
may be damaged or destroyed. Trustor shall pay when due all
claims for work performed and materials furnished on or in
connection with the Trust Property or any part thereof and shall
pay, discharge, or cause to be removed, all mechanic's,
artisan's, laborer's or materialman's charges, liens, claims of
liens or encumbrances upon the Trust Property. Trustor shall
substantially comply with all material laws, ordinances and
regulations now or hereafter enacted, including, without
limitation, the ADA, affecting the Trust Property or requiring
any alterations or improvements to be made. Except as required
by law, Trustor shall not remove, substantially alter, or
demolish any building or improvement included in the Trust
Property without Beneficiary's prior written consent not to be
unreasonably withheld.
5.3 (a) Trustor shall provide and maintain policies of
fire and extended coverage insurance on the Trust Property in an
amount not less than the full insurable value, on a replacement-
cost basis, of the Trust Property and, when requested by
Beneficiary, shall also provide and maintain policies of
insurance in amounts commercially reasonable covering vandalism
and malicious mischief, sprinkler leakage, rent abatement and/or
business loss, flood damage, earthquake and all other risks
commonly insured against by persons owning like properties in the
locality of the Trust Property or commonly required by prudent
institutional lenders making loans secured by liens against such
properties. All such policies shall contain standard, non-
contributory trust beneficiary clauses making losses payable to
Beneficiary. Trustor shall also provide and maintain
comprehensive public liability insurance in amounts reasonably
required by Beneficiary and containing endorsements naming
Beneficiary as an additional insured. All insurance policies
shall be with companies from time to time reasonably approved by
Beneficiary, shall provide that Beneficiary is to receive thirty
(30) days' notice prior to cancellation and shall otherwise be in
form and substance reasonably satisfactory to Beneficiary.
Original policies of insurance shall be delivered to Beneficiary;
renewal policies shall be delivered to Beneficiary thirty (30)
days before the expiration of the then-existing policies with
satisfactory proof that the premiums for renewal have been paid.
(b) In the event of loss, Trustor shall give immediate
notice to Beneficiary, and Beneficiary may make proof of loss if
not made promptly by Trustor. Each insurance company is hereby
authorized and directed to make payment for loss directly to an
escrow account with a third party bank selected by Beneficiary in
its reasonable discretion upon the written discretion of
Beneficiary, instead of to Trustor or to Trustor and Beneficiary
jointly; Beneficiary may apply all or any part of such insurance
proceeds to the payment of the Obligation, whether or not then
due, or the restoration or repair of the Trust Property.
Beneficiary shall not be responsible for any insurance, for the
collection of any insurance proceeds, or for the insolvency of
any insurer. Application of insurance proceeds in an amount less
than the full outstanding amount of the Obligations by
Beneficiary shall not cure nor waive any Event of Default nor
invalidate any act done hereunder because of any such Event of
Default. In the event of the sale of the Trust Property under
the power of sale herein granted to Trustee, or upon foreclosure
of this Deed of Trust as a mortgage, or in the event Beneficiary
or a receiver appointed by the court shall take possession of the
Trust Property without sale, then all right, title and interest
of Trustor in and to all insurance policies then in force shall
inure to the benefit of and pass to the beneficiary in
possession, receiver or purchaser at such sale, as the case may
be. Beneficiary is hereby appointed attorney in fact for Trustor
to assign and transfer such policies.
(c) If the insurance proceeds are to be used for the
restoration and repair of the Trust Property, they shall be held
in a non-interest bearing escrow account with a third party bank
selected by Beneficiary in its reasonable discretion (the
"Restoration Account"). Trustor, at its expense, shall promptly
prepare and submit to Beneficiary all plans and specifications
necessary for the restoration and repair of the damaged Trust
Property, together with evidence reasonably acceptable to
Beneficiary setting forth the total expenditure needed for the
restoration and repair based upon a fixed price contract with a
reputable builder and covered by performance and labor and
material payment bonds. The plans and specifications and all
other aspects of the proposed restoration and repair shall be
subject to Beneficiary's approval not to be unreasonable
withheld. In the event the insurance proceeds held in the
Restoration Account are insufficient to complete the restoration
and repair, Trustor shall deposit in the Restoration Account an
amount equal to the difference between the amount then held in
the Restoration Account and the total contract price for the
restoration and repair. Trustor may commence restoration and
repair of the damaged Trust Property only when authorized in
writing by Beneficiary to do so and thereafter shall proceed in a
commercially reasonable manner with the restoration and repair
until completed. Disbursements shall be made from the
Restoration Account for the restoration and repair in accordance
with a disbursement schedule, and subject to other terms and
conditions, reasonably acceptable to Beneficiary. Disbursements
from the Restoration Account shall be charged first against funds
deposited by Trustor and, after such funds are exhausted, against
the insurance proceeds deposited therein. In the event the
amounts held in the Restoration Account exceed the cost of the
restoration and repair of the damaged Trust Property, the excess
funds shall be disbursed to Trustor to the extent of any amounts
deposited therein by Trustor. Any funds remaining after such
disbursement, at Beneficiary's option, may be applied by
Beneficiary to the payment of the Obligation, whether or not then
due, or may be disbursed to Trustor. All funds held in the
Restoration Account are hereby assigned to Beneficiary as further
security for the Obligation. Beneficiary, at any time, may apply
all or any part of the funds held in the Restoration Account to
the curing of any Event of Default.
5.4 Trustor shall maintain and preserve all patented and
unpatented mining claims that are a part of the Trust Property.
Trustor shall pay or cause to be paid all taxes and assessments
of every kind, nature and description levied or assessed on or
against the Trust Property and shall deliver to Beneficiary, at
least ten (10) days before they become delinquent, receipts
showing payment of all such taxes and assessments. Trustor shall
maintain and preserve all permits associated with the Trust
Property and shall pay or cause to be paid all fees and charges
of every kind, nature and description with respect to the permits
and shall deliver to Beneficiary at least ten (10) days before
they become delinquent, receipts showing payment of all such fees
and charges. Trustor also shall pay when due all dues and
charges for water and water delivery, electricity, gas, sewers,
waste removal, bills for repairs, and any and all other claims,
encumbrances and expenses incident to the ownership of the Trust
Property and when requested by Beneficiary, Trustor shall
promptly deliver to Beneficiary evidence of payment of such
expenses. Trustor may contest in good faith the validity or
amount of any tax, assessment, charge or encumbrance in the
manner provided by law, provided that Trustor shall have
furnished Beneficiary a cash deposit to be held in an escrow
account with a third party bank selected by Beneficiary in its
reasonable discretion to protect Beneficiary against the creation
of any lien on, or any sale or forfeiture of, the Trust Property.
Upon the final determination of Trustor's contest, Trustor shall
promptly pay all sums determined to be due. Any deposit or
security provided by Trustor shall be returned to Trustor upon
the final determination of Trustor's contest and the payment by
Trustor of the sums, if any, determined to be due.
5.5 Beneficiary may contest, by appropriate legal
proceedings, the validity of any valuation for real or personal
property tax purposes or of any levy or assessment of any real or
personal property taxes against the Trust Property either in the
name of Beneficiary or the name of Trustor or both. Trustor,
upon notice and request by Beneficiary, shall join in any such
proceedings. Trustor shall cooperate with Beneficiary in any
such proceeding and execute any documents or pleadings required
for such purposes. Trustor shall provide Beneficiary with a copy
of the Notice of Valuation within ten (10) days after receipt
(five (5) days in the case of personal property). If Beneficiary
is successful in contesting any valuation, Trustor shall
reimburse Beneficiary for all reasonable costs and legal expenses
incurred by Beneficiary in connection with any such proceedings,
but in no event shall such reimbursement exceed the tax savings
achieved for the period covered by the Notice of Valuation. To
facilitate the right of Beneficiary to contest any real or
personal property tax valuation, levy, or assessment as described
above, Trustor does hereby make, constitute and appoint
Beneficiary, and its successors and assigns, Trustor's true and
lawful attorney-in-fact, in Trustor's name, place and stead, or
otherwise, to file any claim or proceeding or to take any action,
either in its own name, in that of its nominee, in the name of
Trustor, or otherwise, to contest any real or personal property
tax valuation, levy, or assessment. The power of attorney given
herein is a power coupled with an interest and shall be
irrevocable so long as any part of the Obligation remains unpaid
or unperformed. Beneficiary shall have no obligation to exercise
any of the foregoing rights and powers in any event.
5.6 In order to insure the payment of taxes and assessments
that are now, or hereafter may be, a lien upon the Trust
Property, and to insure the payment of all premiums on policies
of insurance required herein, Trustor, if required by Beneficiary
after an event of default, shall pay to Beneficiary each month to
be held in an escrow account in a third party bank selected by
Beneficiary in its reasonable discretion, in addition to any
other payments required hereunder, an amount equal to the taxes
and special assessments levied or to be levied against the Trust
Property and the premium or premiums that will become due and
payable to maintain the insurance on the Trust Property, all as
reasonably estimated by Beneficiary (giving due consideration to
the previous year's taxes, assessments and premiums) less all
deposits therefore already made, divided by the number of months
remaining before one month prior to the date when the taxes,
assessments and premiums become delinquent. If amounts paid to
Beneficiary under the terms of this paragraph are insufficient to
pay all taxes, assessments and premiums as they become due,
Trustor shall pay to Beneficiary upon demand all additional sums
necessary to fully pay and discharge these items. All moneys
paid to Beneficiary under the terms of this paragraph may be
either held by Beneficiary in an escrow account with a third
party bank selected by Beneficiary in its reasonable discretion
to pay the taxes, assessments and premiums before the same become
delinquent or applied to the Obligation upon payment by
Beneficiary from its own funds of the taxes, assessments and
premiums. To the extent provision is not made for payment
pursuant to this paragraph, Trustor shall remain obligated to pay
all taxes, assessments and premiums as they become due and
payable. Beneficiary shall have no liability to Trustor for
interest on any deposits.
5.7 Trustor hereby assigns, transfers and conveys to
Beneficiary all compensation and each and every award of damages
in connection with any condemnation for public or private use of,
or injury to, the Trust Property or any part thereof, to the
extent of the Obligation then remaining unpaid, and all such
compensation and awards shall be paid directly to Beneficiary.
Beneficiary may apply all or any part of such compensation and
awards to the payment of the Obligation, whether or not then due,
or to the restoration or repair of the Trust Property.
SECTION 6. PROTECTION AND PRESERVATION OF BENEFICIARY'S INTEREST
6.1 Trustor, by the payment of any such tax or taxes, shall
protect Beneficiary against any and all loss from any taxation of
indebtedness or deeds of trust, direct or indirect, that may be
imposed upon this Deed of Trust, the lien of this Deed of Trust
on the Trust Property, or upon the Obligation, by any law, rule,
regulation or levy of the federal government, any state
government, or any political subdivision thereof. In the event
the burden of such taxation cannot lawfully be shifted from
Beneficiary to Trustor, Beneficiary may declare the entire
Obligation due and payable sixty (60) days after notice to
Trustor.
6.2 If Trustor shall fail to pay any taxes, assessments,
expenses or charges, to keep all of the Trust Property free from
liens and claims of liens, to maintain and repair the Trust
Property, or to procure and maintain insurance thereon, or
otherwise fail to perform as required herein, Beneficiary may
advance the monies necessary to pay the same, to accomplish such
maintenance and repairs, to procure and maintain such insurance
or to so perform; Beneficiary is hereby authorized to enter upon
the Trust Property for such purposes.
6.3 Upon written request by Beneficiary, and excluding any
actions by Beneficiary to object to claims in Beneficiary's
pending Chapter 11 bankruptcy case, Trustor shall appear in and
prosecute or defend any action or proceeding that may affect the
lien or the priority of the lien of this Deed of Trust or the
rights of Beneficiary hereunder and shall pay all costs, expenses
(including the cost of searching title) and attorneys' fees
incurred in such action or proceeding. Beneficiary may appear in
and defend any action or proceeding purporting to affect the lien
or the priority of the lien of this Deed of Trust or the rights
of Beneficiary. Beneficiary may pay, purchase, contest or
compromise any adverse claim, encumbrance, charge or lien that in
the judgment of Beneficiary appears to be prior or superior to
the lien of this Deed of Trust, other than any Permitted
Exceptions.
6.4 Without obtaining the prior written consent of
Beneficiary not to be unreasonably withheld, Trustor shall not
sell, transfer, convey, assign or otherwise dispose of, or
further encumber, all or any material part of the Trust Property
or any interest therein, voluntarily or involuntarily, by
operation of law or otherwise. If Trustor is a corporation,
partnership, joint venture or trust, any material change in the
ownership or management of, or interest in, Trustor, or any
pledge or encumbrance of any interest in Trustor, shall be deemed
to be a transfer of the Trust Property. Upon the occurrence of
any such transaction with Beneficiary's consent, or without
Beneficiary's consent if Beneficiary elects not to exercise its
rights and remedies for an Event of Default, Beneficiary (i) may
increase the interest rate on all or any part of the Obligation
as set forth in the Note; (ii) may charge a loan fee and a
processing fee in connection with the change; and (iii) shall not
be obligated to release Trustor from any liability hereunder or
for the Obligation except to the extent required by law. Consent
to any such transaction shall not be deemed to be consent or a
waiver of the requirement of consent to any other such
transaction.
6.5 Without obtaining the prior written consent of
Beneficiary, Trustor shall not consent to, or vote in favor of,
the inclusion of all or any part of the Trust Property in any
Community Facilities District formed pursuant to the Community
Facilities District Act, A.R.S. Section 48-701, et seq., as
amended from time to time. Trustor shall immediately give notice
to Beneficiary of any notification or advice that Trustor may
receive from any municipality or other third party of any intent
or proposal to include all or any part of the Trust Property in a
Community Facilities District. Beneficiary shall have the right
to file a written objection to the inclusion of all or any part
of the Trust Property in a Community Facilities District, either
in its own name or in the name of Trustor, and to appear at, and
participate in, any hearing with respect to the formation of any
such district.
6.6 All rights, powers and remedies granted Beneficiary
herein, or otherwise available to Beneficiary, are for the sole
benefit and protection of Beneficiary, and Beneficiary may
exercise any such right, power or remedy at its option and in its
sole and absolute discretion without any obligation to do so. In
addition, if, under the terms hereof, Beneficiary is given two or
more alternative courses of action, Beneficiary may elect any
alternative or combination of alternatives, at its option and in
its sole and absolute discretion. All monies advanced by
Beneficiary under the terms hereof and all amounts paid, suffered
or incurred by Beneficiary in exercising any authority granted
herein, including reasonable attorneys' fees, shall be added to
the Obligation, shall be secured by this Deed of Trust, shall
bear interest at the highest rate payable on any of the
Obligation until paid, and shall be due and payable by Trustor to
Beneficiary immediately without demand.
6.7 Trustor, upon receipt of Beneficiary's reasonable
written request, shall promptly correct any defect, error or
omission that may be discovered in the content of this Deed of
Trust or in the execution or acknowledgment hereof. In addition,
Trustor shall do such further acts as may be necessary or that
Beneficiary may reasonably request to carry out more effectively
the purposes of this Deed of Trust, to subject any property
intended to be encumbered hereby to the lien and security
interest hereof, and to perfect and maintain the lien and
security interest hereof.
6.8 When requested by Beneficiary, from time to time,
Trustor shall promptly deliver, in writing, such information as
Beneficiary shall reasonably request relating to the results of
the financial operation of the Trust Property. Upon ten (10)
days' request, Beneficiary may have access to Trustor's books and
records to enable Beneficiary to verify the results of the
financial operation of the Trust Property.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 Trustor is a (i) duly organized, validly existing and
in good standing under the laws of the state in which it is
organized; (ii) is qualified to do business and is in good
standing under the laws of the state in which the Trust Property
is located and in each state in which it is doing business;
(iii) has full power and authority to own its properties and
assets and to carry on its business as now conducted; and (iv) is
fully authorized and permitted to execute and deliver this Deed
of Trust. To Trustor's knowledge the execution, delivery and
performance by Trustor of this Deed of Trust and all other
documents and instruments relating to the Obligation will not
result in any material breach of the terms or conditions or
constitute a default under any agreement or instrument under
which Trustor is a party or is obligated. Trustor is not in
material default in the performance or observance of any
covenants, conditions or provisions of any such agreement or
instrument.
7.2 The liens, security interests and assignments created
hereby will be valid, effective, properly perfected and
enforceable liens, security interests and assignments.
7.3 All representations and warranties made herein shall
survive the execution hereof, the execution and delivery of all
other documents and instruments in connection with the
Obligation, and until the Obligation has been fully paid and
performed.
SECTION 8. DEFAULTS; REMEDIES
8.1 The occurrence of any of the following events or
conditions shall constitute an "Event of Default" under this Deed
of Trust:
(a) Any failure to pay any principal or interest or
any other part of the Obligation when the same shall become due
and payable and such failure continues for ten (10) days after
written notice thereof to Trustor. No notice, however, shall be
required after maturity of any of the Obligation.
(b) Any failure or neglect to perform or observe any
of the covenants, conditions, provisions or agreements of this
Deed of Trust, the Note, the Grant of Production Payment (the
"Royalty Agreement") of even date herewith by and between Trustor
and Beneficiary, and that Environmental Indemnification Agreement
(the "Indemnity Agreement") dated of even date herewith, by and
between Trustor and Beneficiary; or any other document or
instrument executed or delivered in connection with the
Obligation (other than a failure or neglect described in one or
more of the other provisions of this Paragraph 8.1) and such
failure or neglect either (i) continues unremedied for a period
of thirty (30) days after written notice thereof to Trustor, or
(iii) can be remedied, although not within thirty (30) days even
by prompt and diligent action, but such remedy is not commenced
within thirty (30) days written notice after thereof to Trustor
or is not diligently prosecuted to completion within a total of
one hundred twenty (120) days from the date of such notice.
(c) Any warranty, representation or statement
contained in this Deed of Trust, the Note, the Indemnity
Agreement, the Royalty Agreement, or any other document or
instrument executed or delivered in connection with the
Obligation, or made or furnished to Beneficiary by or on behalf
of Trustor, that shall be or shall prove to have been false when
made or furnished and such warranty, representation or statement
(i) continues unremedied for a period of thirty (30) days after
written notice thereof to Trustor, or (iii) can be remedied,
although not within thirty (30) days even by prompt and diligent
action, but such remedy is not commenced within thirty (30) days
written notice after thereof to Trustor or is not diligently
prosecuted to completion within a total of one hundred
twenty (120) days from the date of such notice.
(d) The filing by Trustor, (or against Trustor or to
which Trustor acquiesces or that is not dismissed within forty-
five (45) days after the filing thereof) of any proceeding under
the federal bankruptcy laws now or hereafter existing or any
other similar statute now or hereafter in effect; the entry of an
order for relief under such laws with respect to Trustor; or the
appointment of a receiver, trustee, custodian or conservator of
all or any part of the assets of Trustor.
(e) The insolvency of Trustor, or the execution by
Trustor of an assignment for the benefit of creditors; or the
convening by Trustor of a meeting of its creditors, or any class
thereof, for purposes of effecting a moratorium upon or extension
or composition of its debts; or the failure of Trustor to pay its
debts as they mature; or if Trustor is generally not paying its
debts as they mature.
(f) The admission in writing by Trustor that it is
unable to pay its debts as they mature or that it is generally
not paying its debts as they mature.
(g) The liquidation, termination or dissolution of
Trustor or any such endorser or guarantor, if a corporation,
partnership or joint venture.
(h) Any levy or execution upon, or judicial seizure
of, any portion of the Trust Property, the Personal Property, or
any other collateral or security for the Obligation.
(i) Any attachment or garnishment of, or the existence
or filing of any lien or encumbrance other than any Permitted
Exceptions against, any portion of the Trust Property, the
Personal Property, or any other collateral or security for the
Obligation, that is not removed or released within fifteen (15)
days after its creation.
(j) The institution of any legal action or proceedings
to enforce any lien or encumbrance upon any portion of the Trust
Property, the Personal Property, or any other collateral or
security for the Obligation, that is not dismissed within fifteen
(15) days after its institution.
(k) The abandonment by Trustor of all or any part of
the Trust Property.
(l) The existence of any encroachment upon the Trust
Property that has occurred without the approval of Beneficiary
that is not removed or corrected within thirty (30) days after
its creation.
(m) The demolition or destruction of, or any
substantial damage to, any portion of the Trust Property that is
not adequately covered by insurance, or the loss, theft or
destruction of, or any substantial damage to, any portion of the
Personal Property or any other collateral or security for the
Obligation, that is not adequately covered by insurance.
(n) Subject to Section 8.1(b) or 8.1(c) above, the
occurrence of any event of default under the Note, the Indemnity
Agreement, the Royalty Agreement, or any other document or
instrument executed or delivered in connection with the
Obligation.
8.2 Upon the occurrence of any Event of Default, and at any
time while such Event of Default is continuing, Beneficiary may
do one or more of the following:
(a) Declare the entire Obligation to be immediately
due and payable, and the same, with all costs and charges, shall
be collectible thereupon by action at law.
(b) Give such notice of default and of election to
cause the Trust Property to be sold as may be required by law or
as may be necessary to cause Trustee to exercise the power of
sale granted herein. Trustee shall then record and give such
notice of trustee's sale as then required by law and, after the
expiration of such time as may be required by law, may sell the
Trust Property at the time and place specified in the notice of
sale, as a whole or in separate parcels as directed by
Beneficiary, or by Trustor to the extent required by law, at
public auction to the highest bidder for cash in lawful money of
the United States, payable at time of sale, all in accordance
with applicable law. Trustee, from time to time, may postpone or
continue the sale of all or any portion of the Trust Property by
public declaration at the time and place last appointed for the
sale. No other notice of the postponed sale shall be required.
Upon any sale, Trustee shall deliver its deed conveying the
property sold, without any covenant or warranty, express or
implied, to the purchaser or purchasers at the sale. The
recitals in such deed of any matters or facts shall be conclusive
as to the accuracy thereof. Any person, including Trustor,
Trustee or Beneficiary, may purchase at the sale.
(c) Commence proceedings for foreclosure of this Deed
of Trust in the manner provided by law for the foreclosure of a
real property mortgage.
(d) Exercise any or all of the remedies of a secured
party under the Uniform Commercial Code with respect to the
Personal Property. If Beneficiary should proceed to dispose of
any of the Personal Property in accordance with the provisions of
the Uniform Commercial Code, ten (10) days' notice by Beneficiary
to Trustor shall be deemed to be commercially reasonable notice
under any provision of the Uniform Commercial Code requiring
notice. Trustor, however, agrees that all property of every
nature and description, whether real or personal, covered by this
Deed of Trust, together with all personal property used on or in
connection with the Premises or any business conducted thereon by
the Trustor and covered by separate security agreements, is
encumbered as one unit, that this Deed of Trust and such security
interests, at Beneficiary's option, may be foreclosed or sold in
the same proceeding, and that all property encumbered (both
realty and personalty), at Beneficiary's option, may be sold as
such in one unit as a going business, subject to the provisions
of applicable law.
(e) Without regard to the adequacy of any security for
the Obligation or the solvency of Trustor or any other person or
entity, send notifications to any and all lessees and tenants
under the Leases that all Rents shall be paid to Beneficiary.
Thereafter, Beneficiary shall be entitled to collect the Rents
until Trustor cures all Events of Default and may apply the Rents
collected at its sole discretion to the maintenance of the Trust
Property and/or the payment of the Obligation.
(f) Apply any funds in the possession or control of
Beneficiary under the provisions of Paragraph 5.6 hereof to the
payment of the Obligation, in lieu of the purposes specified in
that paragraph.
(g) Apply for and obtain, without regard to the
adequacy of any security for the Obligation or the solvency of
the Trustor or any other person or entity, a receiver by any
court of competent jurisdiction to take charge of all the Trust
Property, to manage, operate and carry on any business then being
conducted or that could be conducted on the Premises, to carry
on, protect, preserve, replace and repair the Trust Property, and
receive and collect all Rents and to apply the same to pay the
receiver's expenses for the operation of the Trust Property and
then in the manner provided in Paragraph 3.3 herein. Upon
appointment of said receiver, Trustor shall immediately deliver
possession of all of the Trust Property to such receiver.
Neither the appointment of a receiver for the Trust Property by
any court at the request of Beneficiary or by agreement with
Trustor nor the entering into possession of all or any part of
the Trust Property by such receiver shall constitute Beneficiary
a "mortgagee in possession" or otherwise make Beneficiary
responsible or liable in any manner with respect to the Trust
Property or the occupancy, operation or use thereof. Trustor
agrees that Beneficiary shall have the absolute and unconditional
right to the appointment of a receiver in any independent and/or
separate action brought by Beneficiary regardless of whether
Beneficiary seeks any relief in such action other than the
appointment of a receiver. In that respect, Trustor waives any
express or implied requirement under common law or A.R.S. 12-
1241 that a receiver may be appointed only ancillary to other
judicial or non-judicial relief.
(h) Without regard to the adequacy of any security for
the Obligation or the solvency of Trustor or any other person or
entity, enter upon and take possession of all or any part of the
Trust Property, either in person or by agent or employee, or by a
receiver appointed by a court of competent jurisdiction; Trustor
shall on written demand peaceably surrender possession of the
Trust Property to Beneficiary. Beneficiary, in its own name or
in the name of Trustor, may operate and maintain all or any part
of the Trust Property to such extent as Beneficiary deems
advisable, may rent and lease the same to such persons, for such
periods of time, and on such terms and conditions as Beneficiary
in its reasonable discretion may determine, and may xxx for or
otherwise collect any and all Rents, including those past due and
unpaid. In dealing with the Trust Property as a beneficiary in
possession, Beneficiary shall not be subject to any liability,
charge, or obligation therefor to Trustor, other than for gross
negligence and wilful misconduct, and shall be entitled to
operate any business then being conducted or which could be
conducted thereon or therewith at the expense of and for the
account of Trustor (and all net losses, costs and expenses
thereby incurred shall be advances governed by Paragraph 6.6
hereof), to the same extent as the owner thereof could do, and to
apply the Rents to pay the receiver's expenses, if any, for the
operation of the Trust Property and then in the manner provided
in Paragraph 3.3 herein.
8.3 Trustor shall pay all reasonable costs and expenses,
including without limitation costs of title searches and title
policy commitments, Uniform Commercial Code searches, court costs
and reasonable attorneys' fees, incurred by Beneficiary in
enforcing payment and performance of the Obligation or in
exercising the rights and remedies of Beneficiary hereunder. All
such costs and expenses shall be secured by this Deed of Trust
and by all other lien and security documents securing the
Obligation. In the event of any court proceedings, court costs
and attorneys' fees shall be set by the court and not by jury and
shall be included in any judgment obtained by Beneficiary.
8.4 In addition to any remedies provided herein for an
Event of Default, Beneficiary shall have all other legal or
equitable remedies allowed under applicable law (including
specifically that of foreclosure of this instrument as though it
were a mortgage). No failure on the part of Beneficiary to
exercise any of its rights hereunder arising upon any Event of
Default shall be construed to prejudice its rights upon the
occurrence of any other or subsequent Event of Default. No delay
on the part of Beneficiary in exercising any such rights shall be
construed to preclude it from the exercise thereof at any time
while that Event of Default is continuing. Beneficiary may
enforce any one or more remedies or rights hereunder successively
or concurrently. By accepting payment or performance of any of
the Obligation after its due date, Beneficiary shall not thereby
waive the agreement contained herein that time is of the essence,
nor shall Beneficiary waive either its right to require prompt
payment or performance when due of the remainder of the
Obligation or its right to consider the failure to so pay or
perform an Event of Default. In any action by Beneficiary to
recover a deficiency judgment for any balance due under the Note
upon the foreclosure of this Deed of Trust or in any action to
recover the Obligation or Obligations secured hereby, and as a
material inducement to making the loan evidenced by the Note,
Trustor acknowledges and agrees that the successful bid amount
made at any judicial or non-judicial foreclosure sale, if any,
shall be conclusively deemed to constitute the fair market value
of the Premises, that such bid amount shall be binding against
Trustor in any proceeding seeking to determine or contest the
fair market value of the Premises and that such bid amount shall
be the preferred alternative means of determining and
establishing the fair market value of the Premises. Trustor
hereby waives and relinquishes any right to have the fair market
value of the Premises determined by a judge or jury in any action
seeking a deficiency judgment or any action on the Obligation or
Obligations secured hereby, including, without limitation, a
hearing to determine fair market value pursuant to A.R.S. 12-
1566, 33-814, 33-725 or 33-727.
SECTION 9. GENERAL PROVISIONS
9.1 Trustor shall defend, indemnify and hold harmless
Beneficiary, any successors to Beneficiary's interest in the
Trust Property, any purchaser of the Trust Property upon
foreclosure, and all shareholders, directors, officers, employees
and agents of all of the foregoing and their heirs, personal
representatives, successors and assigns from and against all
claims, costs, expenses, actions, suits, proceedings, losses,
damages and liabilities of any kind whatsoever, including but not
limited to all amounts paid in settlement of, and all reasonable
costs and expenses (including reasonable attorneys' fees)
incurred in defending or settling, any actual or threatened
claim, action, suit or proceeding, directly or indirectly arising
out of or relating to the Obligation, this Deed of Trust, or the
Trust Property, occurring from and after the sale of the Trust
Property to Trustor, including but not limited to (i) any
violation of or claim of violation of the ADA with respect to the
Trust Property; or (ii) any breach of any of the warranties,
representations and covenants contained herein. This indemnity
provision shall continue in full force and effect and shall
survive the payment and performance of the Obligation, the
release of record of the lien of this Deed of Trust, any
foreclosure (or action in lieu of foreclosure) of this Deed of
Trust, the exercise by Beneficiary of any other remedy under this
Deed of Trust or any other document or instrument evidencing or
securing the Obligation, and any suit, proceeding or judgment
against Trustor by Beneficiary hereon.
9.2 The acceptance of this Deed of Trust by Beneficiary
shall not be considered a waiver of or in any way to affect or
impair any other security that Beneficiary may have, acquire
simultaneously herewith, or hereafter acquire for the payment or
performance of the Obligation, nor shall the taking by
Beneficiary at any time of any such additional security be
construed as a waiver of or in any way to affect or impair the
security of this Deed of Trust; Beneficiary may resort, for the
payment or performance of the Obligation, to its several
securities therefor in such order and manner as it may determine.
9.3 Without notice or demand, without affecting the
obligations of Trustor hereunder or the personal liability of any
person for payment or performance of the Obligation, and without
affecting the lien or the priority of the lien of this Deed of
Trust, Beneficiary, from time to time, may: (i) extend the time
for payment of all or any part of the Obligation, accept a
renewal note therefor, reduce the payments thereon, release any
person liable for all or any part thereof, or otherwise change
the terms of all or any part of the Obligation; (ii) take and
hold other security for the payment or performance of the
Obligation and enforce, exchange, substitute, subordinate, waive
or release any such security; (iii) consent to the making of any
map or plat of the Trust Property; (iv) join in granting any
easement on or in creating any covenants, conditions or
restrictions affecting the use or occupancy of the Trust
Property; (v) join in any extension or subordination agreement;
or (vi) release or direct Trustee to release any part of the
Trust Property from this Deed of Trust. Any such action by
Beneficiary, or Trustee at Beneficiary's direction, may be taken
without the consent of any junior lienholder and shall not affect
the priority of this Deed of Trust over any junior lien.
9.4 Trustor waives and agrees not to assert: (i) any right
to require Beneficiary to proceed against any guarantor, to
proceed against or exhaust any other security for the Obligation,
to pursue any other remedy available to Beneficiary, or to pursue
any remedy in any particular order or manner; (ii) the benefits
of any legal or equitable doctrine or principle of marshalling;
(iii) the benefits of any statute of limitations affecting the
enforcement hereof; (iv) demand, diligence, presentment for
payment, protest and demand, and notice of extension, dishonor,
protest, demand and nonpayment, relating to the Obligation; and
(v) any benefit of, and any right to participate in, any other
security now or hereafter held by Beneficiary.
9.5 When all of the Obligation has been paid, Trustee (and
Beneficiary if necessary to clear title), upon payment of
Trustee's fees, shall promptly reconvey, without warranty, the
Trust Property to Trustor and Beneficiary shall promptly deliver
to Trustor the Note marked canceled and the Deed of Trust
whereupon this Deed of Trust shall be terminated for all
purposes. The recitals in such reconveyance of any matters or
facts shall be conclusive as to the accuracy thereof. The
grantee in such reconveyance may be described as "the person or
persons legally entitled thereto."
9.6 Beneficiary or Trustee, or both, shall have the right
to inspect the Trust Property at all reasonable times.
9.7 Time is of the essence hereof. If more than one
Trustor is named herein, the word "Trustor" shall mean all and
any one or more of them, severally and collectively. All
liability hereunder shall be joint and several. This Deed of
Trust shall be binding upon, and shall inure to the benefit of,
the parties hereto and their heirs, personal representatives,
successors and assigns. The term "Beneficiary" shall include not
only the original Beneficiary hereunder but also any future owner
and holder, including pledgees, of the Note. The provisions
hereof shall apply to the parties according to the context
thereof and without regard to the number or gender of words or
expressions used.
9.8 The acceptance by Trustee of this trust shall be
evidenced when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law. The
trust created hereby is irrevocable by Trustor.
9.9 This Deed of Trust cannot be changed except by
agreement, in writing, signed by Trustor and Beneficiary.
9.10 No setoff or claim that Trustor now has or may in the
future have against Beneficiary shall relieve Trustor from paying
or performing the Obligation.
9.11 Each term, condition and provision of this Deed of
Trust shall be interpreted in such manner as to be effective and
valid under applicable law but if any term, condition or
provision of this Deed of Trust shall be held to be void or
invalid, the same shall not affect the remainder hereof which
shall be effective as though the void or invalid term, condition
or provision had not been contained herein. In addition, should
this instrument be or become ineffective as a deed of trust, then
these presents shall be construed and enforced as a realty
mortgage with the Trustor being the Mortgagor and Beneficiary
being the Mortgagee.
9.12 This Deed of Trust, the Obligation and the agreements
of any person or entity to pay or perform the Obligation shall be
governed by and construed according to the laws of the State of
Arizona.
9.13 All notices required or permitted to be given hereunder
shall be in writing and may be given in person or by United
States mail, by delivery service or by electronic transmission.
Any notice directed to a party to this Deed of Trust shall become
effective upon the earliest of the following: (i) actual receipt
by that party; (ii) delivery to the designated address of that
party, addressed to that party; or (iii) if given by certified or
registered United States mail, twenty-four (24) hours after
deposit with the United States Postal Service, postage prepaid,
addressed to that party at its designated address. The
designated address of a party shall be the address of that party
shown at the beginning of this Deed of Trust or such other
address as that party, from time to time, may specify by notice
to the other parties.
9.14 As further security for the payment and performance of
the Obligation, Beneficiary shall be subrogated to the lien,
although released of record, of any and all encumbrances paid
from the proceeds of any loan included in the Obligation.
IN WITNESS WHEREOF, these presents are executed as of the
date indicated above.
NORD COPPER CORPORATION, A Delaware
corporation
By /s/ Xxx X. Xxxxxx
Its VP-Finance
TRUSTOR
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing instrument was acknowledged before me this 8th
day of June, 1999, by Xxx Xxxxxx , the VP-Finance
of NORD COPPER CORPORATION, a Delaware corporation, on behalf of
that corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
/s/ Xxx Xxxxx
Notary Public
My commission expires:
February 22, 2003
