[California]
Recording requested by and when recorded mail to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FIRST OPEN END LEASEHOLD DEED OF TRUST,
SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST ("Deed of Trust") dated as of the 12th day of
February 1997, made by COUNTRY STAR RESTAURANTS, INC., a Delaware corporation,
having its chief executive office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Grantor"), in favor of CHICAGO TITLE COMPANY, a California
corporation ("Trustee"), and CAMERON CAPITAL LTD., a Bermuda corporation, having
an office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 19, Bermuda ("Beneficiary"), as
Agent for the Lenders who are parties to the Loan Agreement referred to below
(the "Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Loan and Security Agreement dated
as of the date hereof among Grantor, the Beneficiary and the Lenders (as such
Loan and Security Agreement may be extended, supplemented, modified, restated or
otherwise changed, the "Loan Agreement"), the Lenders may from time to time make
loans and extend financial accommodations to Borrower, which loans shall consist
of line of credit loans in the maximum principal amount of Three Million Five
Hundred Thousand and No/100 Dollars ($3,500,000.00) (the "Line of Credit Loan")
and a term loan in the principal amount of Four Million and No/100 Dollars
($4,000,000.00) ("Term Loan") (the Line of Credit Loan and Term Loan being
collectively referred to herein as the "Loan") (the Loan Agreement and all other
documents, instruments and agreements entered into in connection therewith are
hereinafter sometimes jointly referred to as the "Loan Documents"); and
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WHEREAS, the Loan shall mature on the dates and shall bear interest
at the rates specified in the Loan Agreement; and
WHEREAS, Beneficiary has required as a condition, among others, to
its execution and delivery of the Loan Agreement that Grantor enter into this
Deed of Trust and grant Beneficiary the liens and security interests referred to
herein to secure the prompt and complete payment, observance and performance of
all of the "Obligations" (as defined in the Loan Agreement) and to secure all
notes, if any (the "Obligations" as defined in the Loan Agreement and the
obligations of Borrower under all notes, if any, are hereinafter collectively
referred to as the "Obligations"), that Grantor execute and deliver this Deed of
Trust to Beneficiary; and
WHEREAS, the Obligations secured hereby shall not exceed an
aggregate principal amount, at any one time outstanding of Fifteen Million
Dollars and 00/100 ($15,000,000.00), provided, that the foregoing limitation
shall apply only to the lien upon the leasehold estate created by this Deed of
Trust, and it shall not in any manner limit, affect or impair any grant of a
security interest or other right in favor of the Beneficiary under the
provisions of the Loan Agreement, Guaranty or under any other security agreement
at any time executed by Grantor;
NOW, THEREFORE, in consideration of the premises contained herein
and to secure payment of the Obligations and in consideration of Ten Dollars
($10.00) in hand paid, receipt whereof is hereby acknowledged, Grantor does
hereby irrevocably grant, bargain, remise, release, alien, convey, mortgage and
warrant to Trustee IN TRUST, WITH POWER OF SALE, its successors and assigns, all
of Grantor's interest as lessee or tenant under that certain lease, as the same
may be or have been amended (the "Lease"), of the real estate (the "Land") in
_______ County, California, all as described on Exhibit A attached hereto and by
this reference made a part hereof, which interest in the Lease, together with
all right, title and interest, if any, which Grantor may now have or hereafter
acquire in and to all improvements, buildings and structures thereon of every
nature whatsoever, is herein called the "Premises."
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Grantor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto and, (b) all hereditaments, gas, oil,
minerals, and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or appertaining
and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the rights and interests
described in subparagraphs (a) and (b) above (hereinafter the "Property
Rights"); and
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Grantor may now have
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or hereafter acquire in and to all fixtures and appurtenances of every nature
whatsoever now or hereafter located in, on or attached to, and used or intended
to be used in connection with, or with the operation of, the Premises,
including, but not limited to (a) all apparatus, machinery and equipment of
Grantor to the extent deemed fixtures under law; and (b) all extensions,
additions, improvements, betterments, renewals, substitutions and replacements
to or of any of the foregoing (all of the foregoing items in this paragraph
being referred to as the "Fixtures"); as well as all personal property and
equipment of every nature whatsoever now or hereafter located in or on the
Premises, including but not limited to (c) all screens, window shades, blinds,
wainscoting, storm doors and windows, floor coverings, and awnings of Grantor;
(d) all apparatus, machinery, equipment and appliances of Grantor not included
as Fixtures; (e) all items of furniture, furnishings and personal property of
Grantor; and (f) all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the foregoing (c)-(e) (the items
described in the foregoing (c)-(f) and any other personal property referred to
in this paragraph being the "Personal Property") and in and to the proceeds of
the Personal Property. It is mutually agreed, intended and declared that the
Premises and all of the Property Rights and Fixtures owned by Grantor (referred
to collectively herein as the "Real Property") shall, so far as determined by
law, be part and parcel of the Land and for the purpose of this Deed of Trust to
be real estate and covered by this Deed of Trust. It is mutually agreed,
intended and declared that the premises and all of the Property Rights and
Fixtures owned by Grantor (referred to collectively herein as the "Real
Property") shall, so far as permitted by law, be deemed to form a part and
parcel of the Land and for the purpose of this Deed of Trust to be real estate
and covered by this Deed of Trust. Subject to the terms and conditions of the
Loan Agreement, the remedies for any violation of the covenants, terms and
conditions of the agreements herein contained shall be as prescribed herein or
by general law, or, as to that part of the security in which a security interest
may be perfected under the Uniform Commercial Code, by the specific statutory
consequences now or hereafter enacted and specified in the Uniform Commercial
Code, all at the Beneficiary's sole election; and
TOGETHER WITH all the estate, right, title and interest of the
Grantor in and to (i) all judgments, insurance proceeds, awards of damages and
settlements resulting from condemnation proceedings or the taking of the Real
Property, or any part thereof, under the power of eminent domain or for any
damage (whether caused by such taking or otherwise) to the Real Property, or any
part thereof, or to any rights appurtenant thereto, and all proceeds of any
sales or other dispositions of the Real Property or any part thereof; and
(except as otherwise provided herein or in the Loan Agreement) the Beneficiary
is hereby authorized to collect and receive said awards and proceeds and to give
proper receipts and acceptances therefor, and to apply the same as provided in
the Loan Agreement for application of payments; and (ii) all contract rights,
general intangibles, actions and rights in action relating to the Real Property
including, without limitation, all rights to insurance proceeds and unearned
premiums arising from or relating to damage to the Real Property; and (iii) all
proceeds, products, replacements, additions, substitutions, renewals and
accessions of and to the Real Property. (The rights and interests described in
this paragraph shall hereinafter be called the "Intangibles").
As additional security for the Obligations secured hereby, Grantor
does (i) hereby
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pledge and assign to Beneficiary from and after the date hereof (including any
period of redemption), primarily and on a parity with the Real Property, and not
secondarily, all the rents, issues and profits of the Real Property and all
rents, issues, profits, revenues, royalties, bonuses, rights and benefits due,
payable or accruing (including all deposits of money as advance rent, for
security or as ▇▇▇▇▇▇▇ money or as down payment for the purchase of all or any
part of the Real Property) (the "Rents") under any and all present and future
subleases, contracts or other agreements relative to the ownership or occupancy
of all or any portion of the Real Property, and (ii) except to the extent such a
transfer or assignment is not permitted by the terms thereof, does hereby
transfer and assign to Beneficiary all such subleases and agreements (including
all Grantor's rights under any contracts for the sale of any portion of the Real
Property and all revenues and royalties under any oil, gas and mineral leases
relating to the Real Property) (the "Subleases"). Beneficiary hereby grants to
Grantor the right to collect and use the Rents as they become due and payable
under the Subleases, but not more than one (1) month in advance thereof, unless
an "Event of Default" (as defined in the Loan Agreement) shall have occurred
provided that the existence of such right shall not operate to subordinate this
assignment to any subsequent assignment, in whole or in part, by Grantor, and
any such subsequent assignment shall be subject to the rights of the Beneficiary
under this Deed of Trust. Grantor further agrees to execute and deliver such
assignments of subleases or assignments of land sale contracts as Beneficiary
may from time to time request. In the event of an Event of Default (1) the
Grantor agrees, upon demand, to deliver to the Beneficiary all of the Subleases
with such additional assignments thereof as the Beneficiary may request and
agrees that the Beneficiary may assume the management of the Real Property and
collect the Rents, applying the same upon the Obligations in the manner provided
in the Loan Agreement, and (2) the Grantor hereby authorizes and directs all
tenants, purchasers or other persons occupying or otherwise acquiring any
interest in any part of the Real Property to pay the Rents due under the
Subleases to the Beneficiary upon request of the Beneficiary. Grantor hereby
appoints Beneficiary as its true and lawful attorney in fact to manage said
property and collect the Rents, with full power to bring suit for collection of
the Rents and possession of the Real Property, giving and granting unto said
Beneficiary and unto its agent or attorney full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in the protection of the security hereby conveyed; provided, however, that
(i) this power of attorney and assignment of rents shall not be construed as an
obligation upon said Beneficiary to make or cause to be made any repairs that
may be needful or necessary and (ii) Beneficiary agrees that until such Event of
Default as aforesaid, Beneficiary shall permit Grantor to perform the
aforementioned management responsibilities. Upon Beneficiary's receipt of the
Rents, at Beneficiary's option, it may pay: (1) reasonable charges for
collection thereof, costs of necessary repairs and other costs requisite and
necessary during the continuance of this power of attorney and assignment of
rents, (2) general and special taxes, insurance premiums, and (3) the balance of
the Rents pursuant to the provisions of the Loan Agreement. This power of
attorney and assignment of rents shall be irrevocable until this Deed of Trust
shall have been satisfied and released of record and the releasing of this Deed
of Trust shall act as a revocation of this power of attorney and assignment of
rents. Beneficiary shall have and hereby expressly reserves the right and
privilege (but assumes no obligation) to demand, collect, ▇▇▇ for, receive and
recover the Rents, or any part thereof, now existing or hereafter made, and
apply the same in accordance with the provisions of the Loan Agreement.
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All of the property described above, and each item of property
therein described, not limited to but including the Lease, the Land, the
Premises, the Property Rights, the Fixtures, the Personal Property, the Real
Property, the Intangibles, the Rents and the Subleases, is herein referred to as
the "Mortgaged Property." Notwithstanding the foregoing, the term "Mortgaged
Property" shall include all right, title and interest of Grantor in and to the
present or future use of wastewater, wastewater capacity, drainage, water or
other utility facilities to the extent such use benefits the Mortgaged Property,
including without limitation, all reservations, commitments or receipts covering
any such use, whether now or hereafter acquired.
Nothing herein contained shall be construed as constituting the
Beneficiary a beneficiary-in-possession in the absence of the taking of actual
possession of the Mortgaged Property by the Beneficiary. Nothing contained in
this Deed of Trust shall be construed as imposing on Beneficiary any of the
obligations of the sublessor under any sublease of the Mortgaged Property in the
absence of an explicit assumption thereof by Beneficiary. In the exercise of the
powers herein granted to the Beneficiary, no liability shall be asserted or
enforced against the Beneficiary, all such liability being expressly waived and
released by Grantor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights and
privileges hereby conveyed or assigned, or intended so to be, unto Trustee, its
successors and assigns, forever for the uses and purposes herein set forth.
Grantor hereby releases and waives all rights under and by virtue of the
Homestead Exemption Laws, if any, of the State of California (the "State") and
Grantor hereby covenants, represents and warrants that, at the time of the
ensealing and delivery of these presents, Grantor is lawfully possessed of the
Mortgaged Property by virtue of the Lease as a valid and subsisting leasehold
estate for the full term thereof, subject only to the full fee simple interest
of the fee owner thereof, to the extent set forth in the Lease and with lawful
authority to sell, assign, and convey the Mortgaged Property, and that the title
to the Mortgaged Property is free and clear of all encumbrances except as set
forth on Exhibit B attached hereto and made a part hereof, and that, except for
the encumbrances set forth on Exhibit B, Grantor will forever defend the same
against all lawful claims.
The following provisions shall also constitute an integral part of
this Deed of Trust:
1. Payment of Taxes on the Deed of Trust. Grantor agrees that, if
the United States or any department, agency or bureau thereof or if the State or
any of its subdivisions having jurisdiction shall at any time require
documentary stamps to be affixed to this Deed of Trust or shall levy, assess, or
charge any tax, assessment or imposition upon this Deed of Trust or the credit
or indebtedness secured hereby or the interest of Trustee or Beneficiary in the
Premises or upon Trustee or Beneficiary by reason of or as holder of any of the
foregoing, then Grantor shall pay for such documentary stamps in the required
amount and deliver them to Beneficiary or pay (or reimburse Beneficiary for)
such taxes, assessments or impositions and, unless all such documentary stamps,
taxes, assessments and impositions are paid or reimbursed by Grantor when and as
they become due and payable, all sums hereby secured shall become immediately
due and payable, at the option of Beneficiary, notwithstanding anything
contained herein or in any law heretofore or hereafter enacted.
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Grantor agrees to exhibit to Beneficiary, at any time upon request, official
receipts showing payment of all taxes, assessments and charges which Grantor is
required or elects to pay under this paragraph. Grantor agrees to indemnify
Trustee and Beneficiary against liability on account of such documentary stamps,
taxes, assessments or impositions, whether such liability arises before or after
payment of the Obligations and regardless of whether this Deed of Trust shall
have been released.
2. Subleases Affecting the Real Property. Grantor agrees faithfully
to perform all of its obligations under all present and future subleases or
other agreements relative to the occu pancy of the Real Property at any time
assigned to Beneficiary as additional security, and to refrain from any action
or inaction which would result in termination of any such subleases or
agreements or in the diminution of the value thereof or of the rents or revenues
due thereunder. All future sublessees under any sublease of the Real Property,
or any part thereof, made after the date of recording of this Deed of Trust
shall, at Beneficiary's option and without any further documentation, attorn to
Beneficiary as sublessor if for any reason Beneficiary becomes sublessor
thereunder, and, upon demand, pay rent to Beneficiary, and Beneficiary shall not
be responsible under such sublease for matters arising prior to Beneficiary
becoming sublessor thereunder.
3. Use of the Real Property. Grantor agrees that it shall not permit
the public to use the Real Property in any manner that might tend, in
Beneficiary's reasonable judgment, to impair Grantor's leasehold interest in
such property or any portion thereof, or to make possible any claim or claims of
easement by prescription or of implied dedication to public use.
4. Indemnification. Grantor shall not use or permit the use of any
part of the Real Property for any illegal purpose, including, without
limitation, the violation of any environmental laws, statutes, codes,
regulations or practices. Without limiting any indemnification Borrower has
granted in the Loan Agreement, Grantor agrees to indemnify and hold harmless
Trustee and Beneficiary from and against any and all losses, suits, obligations,
fines, damages, judgments, penalties, claims, charges, costs and expenses
(including reasonable attorneys' and para legals' fees, court costs and
disbursements) which may be imposed on, incurred or paid by or asserted against
the Real Property by reason or on account of or in connection with the (i)
construc tion, reconstruction or alteration of the Real Property, (ii) any
negligence or misconduct of Grantor, any sublessee of the Real Property, or any
of their respective agents, contractors, subcontractors, servants, employees,
licensees or invitees, (iii) any accident, injury, death or damage to any person
or property occurring in, on or about the Real Property or any street, drive,
sidewalk, curb or passageway adjacent thereto, or (iv) any other transaction
arising out of or in any way connected with the Mortgaged Property.
5. Insurance. Grantor shall, at its sole expense, obtain for,
deliver to, assign and maintain for the benefit of Trustee and Beneficiary,
until the Obligations are paid in full, insurance policies as specified in the
Loan Agreement. In the event of a casualty loss, the net insurance proceeds from
such insurance policies shall be paid and applied as specified in the Loan
Agreement.
6. Condemnation Awards. Grantor hereby assigns to Beneficiary, as
additional
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security, all awards of damage resulting from condemnation proceedings or the
taking of or injury to the Real Property for public use, and Grantor agrees that
the proceeds of all such awards shall be paid and applied as specified in the
Loan Agreement.
7. Remedies. Upon the occurrence of an Event of Default under the
terms of the Loan Agreement, in addition to any rights and remedies provided for
in the Loan Agreement, and to the extent permitted by applicable law, the
following provisions shall apply:
(a) Beneficiary's Power of Enforcement. It shall be lawful for
Beneficiary, by or through Trustee or otherwise, to (i) immediately sell the
Mortgaged Property either in whole or in separate parcels, as prescribed by the
State law, under power of sale, which power is hereby granted to Beneficiary
and/or Trustee to the full extent permitted by the State law, and thereupon, to
make and execute to any purchaser(s) thereof deeds of conveyance pursuant to
applicable law or (ii) immediately foreclose this Deed of Trust by judicial
action. The court in which any proceeding is pending for the purpose of
foreclosure of this Deed of Trust may, at once or at any time thereafter, either
before or after sale, without notice and without requiring bond, and without
regard to the solvency or insolvency of any person liable for payment of the
Obligations secured hereby, and without regard to the then value of the
Mortgaged Property or the occupancy thereof as a homestead, appoint a receiver
(the provisions for the appointment of a receiver and assignment of rents being
an express condition upon which the Loan hereby secured is made) for the benefit
of Beneficiary, with power to collect the Rents, due and to become due, during
such foreclosure suit and the full statutory period of redemption, if any,
notwithstanding any redemption. The receiver, out of the Rents, when collected,
may pay costs incurred in the management and operation of the Real Property,
prior and subordinate liens, if any, and taxes, assessments, water and other
utilities and insurance, then due or thereafter accruing, and may make and pay
for any necessary repairs to the Real Property, and may pay all or any part of
the Obligations or other sums secured hereby or any deficiency decree entered in
such foreclosure proceedings. Upon or at any time after the filing of a suit to
foreclose this Deed of Trust, the court in which such suit is filed shall have
full power to enter an order placing Trustee or Beneficiary in possession of the
Real Property with the same power granted to a receiver pursuant to this
subparagraph and with all other rights and privileges of a
mortgagee-in-possession under applicable law.
(b) Beneficiary's Right to Enter and Take Possession, Operate and
Apply Income. Beneficiary shall, at its option, have the right, acting through
Trustee and/or its agents or attorneys, either with or without process of law,
forcibly or otherwise, to enter upon and take possession of the Real Property,
expel and remove any persons, goods, or chattels occupying or upon the same, to
collect or receive all the Rents and to manage and control the same, and to
sublease the same or any part thereof, from time to time, and, after deducting
all reasonable attorneys' fees and expenses, and all reasonable expenses
incurred in the protection, care, maintenance, management and operation of the
Real Property, distribute and apply the remaining net income in accordance with
the terms of the Loan Agreement or upon any deficiency decree entered in any
foreclosure proceedings.
(c) Sale of Mortgaged Property. Beneficiary may, at its option, and
in addition
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to any and every other remedy, request Trustee to proceed with foreclosure
(which request shall be presumed), and in such event Trustee is hereby
authorized and empowered and it shall be his special duty, upon such request of
Beneficiary, to (a) sell the Mortgaged Property, or any part thereof, at public
vendue to the highest bidder, for cash, at the county courthouse of the county
of the State in which the Mortgaged Property is situated in the area in such
courthouse designated for real property foreclosure sales in accordance with
applicable law (or in the absence of any such designation, in the area set forth
in the notice of sale hereinafter described) between the hours of 10:00 a.m. and
4:00 p.m. (commencing no earlier than such time as may be designated in the
hereinafter described notice of sale) on the first Tuesday of any month, after
giving legally adequate notice of the time, place and terms of said sale, and
the property to be sold, by posting (or by having some person or persons acting
for him post) for at least twenty-one (21) days preceding the date of the sale,
written or printed notice of the proposed sale at the courthouse door of the
appropriate county, or (b) sell the Mortgaged Property at such other time, place
and in accordance with such procedures and require ments as may hereafter be
provided by the laws of the State. In addition to such posting of notice the
holder of the indebtedness hereby secured shall at least twenty-one (21) days
preceding the date of sale serve or cause to be served written notice of the
proposed sale by certified mail on Grantor and on each other debtor, if any,
obligated to pay the indebtedness hereby secured according to the records of
such holder, and shall at least twenty-one (21) days preceding the date of sale
file written notice of the proposed sale in the county clerk's Office of the
county of the State in which the Mortgaged Property is located. Service of such
notice shall be completed upon deposit of the notice, enclosed in a postpaid
wrapper, properly addressed to Grantor, and such other debtors at their last
known address or addresses as shown by the records of the holder of the
indebtedness hereby secured in a post office or official depository under the
care and custody of the United States Postal Service. The affidavit of any
person having knowledge of the facts to the effect that such a service was
completed shall be prima facie evidence of the fact of service. Grantor agrees
that no notice of any sale other than as set out in this paragraph need be given
by Trustee, Beneficiary or any other person. Grantor hereby designates as his
address for the purpose of such notice, the address set out herein and agrees
that such address shall be changed only by depositing notice of such change,
enclosed in a postpaid wrapper, in post office or official depository under the
care and custody of the United States Postal Service, certified mail, postage
prepaid, return receipt requested, addressed to the Beneficiary at the address
for the Beneficiary set out herein (or to such other address as the Beneficiary
may have designated by notice given as above provided to Grantor). Any sale made
by the Trustee hereunder may be as an entirety or in such parcels as
announcement at the time and place appointed for such sale without further
notice except as may be required by law. The sale by the Trustee of less than
the whole of the Mortgaged Property shall not exhaust the power of sale herein
granted, and the Trustee is specifically empowered to make successive sale or
sales under such power until the whole of the Mortgaged Property shall be sold;
and, if the proceeds of such sale of less than the whole of the Mortgaged
Property shall be less than the aggregate of the indebtedness secured hereby and
the expense of executing this trust as provided herein, this Deed of Trust and
the lien hereof shall remain in full force and effect as to the unsold portion
of the Mortgaged Property just as though no sale had been made; provided,
however, that Grantor shall never have any right to require the sale of less
than the whole of the Mortgaged Property, but the Beneficiary shall have the
right, at its sole election, to request the Trustee to sell less than the whole
of the Mortgaged
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Property. After each sale, the Trustee shall make to the purchaser or purchasers
at such sale good and sufficient conveyances in the name of Grantor, conveying
the property so sold to the purchasers or purchasers in fee simple with general
warranty of title and shall receive the proceeds of said sale or sales and apply
the same as herein provided. The power of sale granted herein shall not be
exhausted by any sale held hereunder by the Trustee or his substitute or
successor, and such power of sale may be exercised from time to time and as many
times as the Beneficiary may deem necessary until all of the Mortgaged Property
has been duly sold and all of the indebtedness has been fully paid. In the event
any sale hereunder is not completed or is defective in the opinion of the
Beneficiary, such sale shall not exhaust the power of sale hereunder and the
Beneficiary shall have the right to cause a subsequent sale or sales to be made
hereunder. In case of any sale hereunder, all prerequisites to the sale shall be
presumed to have been performed. Any and all statements of fact or other
recitals made in any deed or deeds given by the Trustee or any successor or
substitute appointed hereunder as to nonpayment of the indebtedness secured
hereby or as to the occurrence of any Event of Default, or as to the Beneficiary
having declared all of such indebtedness to be due and payable, or as to the
request to sell, or as to notice of time, place and terms of sale and of the
properties to be sold having been duly given, or as to the refusal, failure or
inability to act of the Trustee or any substitute or successor, or as to the
appointment of any substitute or successor trustee, or as to any other act or
thing having been duly done by the Beneficiary or by such Trustee, substitute or
successor, shall be taken as prima facie evidence of the truth of the facts so
stated and recited. The Trustee, his successor or substitute, may appoint or
delegate any one or more person as agent to perform any ministerial act or acts
necessary or incident to notices but in the name and on behalf of the Trustee,
his successor or substitute.
(d) Holder's Right to Purchase. The Beneficiary shall have the right
to become the purchaser at any sale held by any Trustee or substitute or
successor or by any receiver or public officer, and any Beneficiary purchasing
at any such sale shall have the right to credit upon the amount of the bid made
therefore, to the extent necessary to satisfy such bid, the Obligations.
(e) Foreclosure Without Maturing All Obligations. If any Event of
Default occurs as the result of Grantor's failure to make payment of any part of
the Obligations, the Beneficiary shall have the option to proceed with
foreclosure of the liens and security interests evidenced hereby in satisfaction
of such item either through the courts or by proceeding or by directing the
Trustee to proceed as if under a full foreclosure, conducting the sale as herein
provided, all without declaring all of the Obligations due, and provided that if
sale of the Mortgaged Property is made because of an Event of Default, such sale
may be made subject to the unmatured part of the Obligations; and such sale, if
so made, shall not in any manner affect the unmatured part of the Obligations,
but as to such unmatured part this Deed of Trust shall remain in full force and
effect just as though no sale had been made. The proceeds of any sale shall be
applied as provided herein. Several sales may be made hereunder without
exhausting the right of sale for any unmatured part of the Obligations. It is
the purpose hereof to provide for a foreclosure and sale of the Mortgaged
Property for any matured portion of the Obligations without exhausting the power
to foreclose and to sell the Mortgaged Property for any other part of the
Obligations whether matured at the time or subsequently maturing.
9
(f) Judicial Foreclosure. This instrument shall be effective as a
mortgage as well as a Deed of Trust and upon the occurrence of an Event of
Default may be foreclosed as to any of the Mortgaged Property in any manner
permitted by the laws of the State or any other state in which any part of the
Mortgaged Property is situated, and any foreclosure suit may be brought by the
Trustee or by the Beneficiary. In the event a foreclosure hereunder shall be
commenced by the Trustee, or his substitute or successor, the Beneficiary may at
any time before the sale of the Mortgaged Property direct the said Trustee to
abandon the sale, and may then institute suit for the collection of the
Obligations and any other secured indebtedness, and for the foreclosure of this
Deed of Trust. It is agreed that if the Beneficiary should institute a suit for
the collection of the indebted ness or any other secured indebtedness (whether
before, simultaneously with, or after the commencement of any foreclosure by
Trustee) and/or for the foreclosure of this Deed of Trust, the Beneficiary may
at any time before the entry of a final judgment in said suit dismiss the same,
and require the Trustee, his substitute or successor to sell the Mortgaged
Property in accordance with the provisions of this Deed of Trust.
8. Application of the Rents or Proceeds from Foreclosure or Sale.
The proceeds of any sale (whether through a foreclosure proceeding or
Beneficiary's exercise of the power of sale) shall be distributed and applied in
accordance with the terms of the Loan Agreement. In any foreclosure of this Deed
of Trust by judicial action, or any sale of the Mortgaged Property by adver
tisement, in addition to any of the terms and provisions of the Loan Agreement,
there shall be allowed (and included in the decree for sale in the event of a
foreclosure by judicial action) to be paid out of the Rents or the proceeds of
such foreclosure proceeding and/or sale:
(a) Obligations. All of the Obligations and other sums secured
hereby which then remain unpaid; and
(b) Other Advances. All other items advanced or paid by Beneficiary
pursuant to this Deed of Trust; and
(c) Costs, Fees and Other Expenses. All court costs, Trustee's fees,
reasonable attorneys' and paralegals' fees and expenses actually incurred,
reasonable appraiser's fees, reasonable advertising costs, reasonable notice
expenses, reasonable expenditures for documentary and expert evidence,
reasonable stenographer's charges, reasonable publication costs, and reasonable
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all abstracts of title, title searches and examinations,
title guarantees, title insurance policies, Torrens certificates and similar
data with respect to title which Beneficiary in the reasonable exercise of its
judgment may deem necessary. All such expenses shall become additional
Obligations secured hereby when paid or incurred by Beneficiary in connection
with any proceedings, including but not limited to probate and bankruptcy
proceedings, to which Beneficiary shall be a party, either as plaintiff,
claimant or defendant, by reason of this Deed of Trust or any indebtedness
hereby secured or in connection with the preparations for the commencement of
any suit for the foreclosure, whether or not actually commenced, or sale by
advertisement.
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9. Cumulative Remedies; Delay or Omission Not a Waiver. Each remedy
or right of Beneficiary shall not be exclusive of but shall be in addition to
every other remedy or right now or hereafter existing at law or in equity. No
delay in the exercise or omission to exercise any remedy or right accruing on
the occurrence or existence of any Event of Default shall impair any such remedy
or right or be construed to be a waiver of any such Event of Default or
acquiescence therein, nor shall it affect any subsequent Event of Default of the
same or different nature. Every such remedy or right may be exercised
concurrently or independently and when and as often as may be deemed expedient
by Beneficiary.
10. Beneficiary's Remedies against Multiple Parcels. If more than
one property, lot or parcel is covered by this Deed of Trust, and if this Deed
of Trust is foreclosed upon, or judgment is entered upon any Obligations secured
hereby, or if Beneficiary exercises its power of sale, execution may be made
upon or Beneficiary may exercise its power of sale against any one or more of
the properties, lots or parcels and not upon the others, or upon all of such
properties or parcels, either together or separately, and at different times or
at the same time, and execution sales or sales by advertisement may likewise be
conducted separately or concurrently, in each case at Beneficiary's election.
11. No Merger. In the event of a foreclosure of this Deed of Trust
or any other mortgage or deed of trust securing the Obligations, the Obligations
then due the Beneficiary shall not be merged into any decree of foreclosure
entered by the court, and Beneficiary may concurrently or subsequently seek to
foreclose one or more mortgages or deeds of trust which also secure said
Obligations.
12. Notices. Except as otherwise provided herein, any notices,
demands, consents, requests, approvals, undertakings or other instruments
required or permitted to be given in connection with this Deed of Trust (and all
copies of such notices or other instruments as set forth below) shall be in
writing, and shall be deemed to have been validly served, given or delivered if
hand-delivered or if sent by a nationally recognized overnight delivery service,
charges prepaid (effective two (2) business days following deposit with such
delivery service), or if mailed (effective three (3) business days following
deposit thereof at any main or branch United States Post Office) by United
States registered or certified mail, postage prepaid, return receipt requested,
addressed to the party so notified as follows:
if to Grantor:
Country Star Restaurants, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: Chief Operating Officer
Telecopy No. 310.268.2208
with copies to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Brandeis, LLP
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No. 212.223.6433
if to Trustee or Beneficiary:
Cameron Capital Ltd.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇▇▇
Attention: Nic ▇▇▇▇▇▇▇▇
Telecopy No. 441.295.9022
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy No. 303.628.4240
Grantor or Beneficiary shall, from time to time, have the right to specify as
the proper addressee and/or address for the purposes of this Deed of Trust any
other party or address in the United States upon giving five (5) days' written
notice thereof.
13. Extension of Payments. Grantor agrees that, without affecting
the liability of any person for payment of the Obligations secured hereby or
affecting the lien of this Deed of Trust upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Trustee or Beneficiary of its rights and privileges hereunder),
Beneficiary may at any time and from time to time, on request of the Borrower,
without notice to any person liable for payment of any Obligations secured
hereby, but otherwise subject to the provisions of the Loan Agreement, extend
the time, or agree to alter or amend the terms of payment of such Obligations.
Grantor further agrees that any part of the security herein described may be
released with or without consideration without affecting the remainder of the
Obligations or the remainder of the security.
14. Governing Law. Grantor and Beneficiary have agreed that the Loan
is to be secured by collateral security located in different states. In
addition, Grantor and Beneficiary have agreed that the law of the State of
Illinois will govern the Loan and that the laws of the individual states in
which such collateral security for the Loan is located will govern all matters
with regard to such collateral security accordingly. Wherever possible, each
provision of this Deed of Trust shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Deed of
Trust shall be prohibited by or invalid under applicable law, such provision
shall be
12
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Deed of Trust.
15. Satisfaction of Deed of Trust. Upon full payment of all the
Obligations, at the time and in the manner provided in the Loan Agreement, upon
expiration of the Lease by passage of time, this conveyance or lien shall be
null and void and, upon demand therefor following such payment, or expiration of
the Lease by passage of time, as the case may be, a satisfaction of this Deed of
Trust or reconveyance of the Mortgaged Property shall promptly be provided by
Beneficiary to Grantor.
16. Successors and Assigns Included in Parties. This Deed of Trust
shall be binding upon the Grantor and upon the successors and assigns of the
Grantor and shall inure to the benefit of the Trustee's and Beneficiary's
respective successors and assigns; all references herein to the Grantor and to
the Beneficiary shall be deemed to include their respective successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for the Grantor. Wherever used,
the singular number shall include the plural, the plural shall include the
singular, and the use of any gender shall be applicable to all genders.
17. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Grantor agrees, to the full extent permitted by law, that at
all times following an Event of Default, neither Grantor nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, or extension laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Deed of Trust
or the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchaser thereat;
and Grantor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws and any and all right to have the assets comprising the Mortgaged
Property marshaled upon any foreclosure of the lien hereof and agrees that
Beneficiary or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. To the full extent permitted by
law, Grantor hereby waives any and all statutory or other rights of redemption
from sale under any order or decree of foreclosure of this Deed of Trust, on its
own behalf and on behalf of each and every person acquiring any interest in or
title to the Mortgaged Property subsequent to the date hereof.
18. Interpretation with Other Documents. Notwithstanding anything in
this Deed of Trust to the contrary, in the event of a conflict or inconsistency
between the Deed of Trust and the Loan Agreement, the provisions of the Loan
Agreement shall govern.
19. Future Advances. The parties hereto intend that, in addition to
any other debt or obligation secured hereby, this Deed of Trust shall secure
unpaid balances of the Obligations and other such extensions of credit made by
Beneficiary to Borrower after this Deed of Trust is filed for recordation in the
official records of the county in which the Mortgaged Property is located,
whether made pursuant to an obligation of Beneficiary or otherwise. Such
Obligations and other extensions
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of credit may or may not be evidenced by notes executed pursuant to the Loan
Agreement. All future advances will have the same priority as the original
advance.
20. Invalid Provisions to Affect No Others. In the event that any of
the covenants, agreements, terms or provisions contained in this Deed of Trust
shall be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein or in the
Loan Agreement shall not be in any way affected, prejudiced or disturbed
thereby. In the event that the application of any of the covenants, agreements,
terms or provisions of this Deed of Trust is held to be invalid, illegal or
unenforceable, those covenants, agreements, terms and provisions shall not be in
any way affected, prejudiced or disturbed when otherwise applied.
21. Changes. Neither this Deed of Trust nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Grantor and Beneficiary
relating to this Deed of Trust shall be superior to the rights of the holder of
any inter vening lien or encumbrance.
22. Time of Essence. Time is of the essence with respect to the
provisions of this Deed of Trust.
23. Successor Trustee. Beneficiary, or any successor in ownership of
any indebtedness secured hereby, may from time to time, without other formality
than the execution of an instrument in writing, substitute a successor or
successors to any Trustee named herein or acting hereunder, which instrument,
shall be conclusive proof of proper substitution of such successor Trustee or
Trustees, who shall, without conveyance from the Trustee predecessor, succeed to
all its title, estate, rights, powers and duties. Said instrument must contain
the name of the original Grantor, Trustee and Beneficiary hereunder, the
recording information where this Deed is recorded and the name and address of
the new Trustee.
24. Trustee's Covenants and Acceptance. Trustee covenants faithfully
to perform the trust herein created, being liable, however, only for gross
negligence or willful misconduct. Trustee accepts this Trust, when this Deed of
Trust, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto or any action or
proceeding in which Grantor, Beneficiary or Trustee shall be a party unless
brought by Trustee.
25. Required Notices. Grantor shall notify Beneficiary promptly of
the receipt of any notice of default from the landlord under the Lease.
26. Acquisition of Fee Interest. In the event Grantor acquires the
fee interest in the Mortgaged Property, either pursuant to the terms of the
Lease or otherwise, this Deed of Trust shall continue in full force and effect
against the Mortgaged Property until its release of record, and
14
this Deed of Trust shall become and remain a valid fee mortgage lien on the
Mortgaged Property.
27. General Covenants; Representations and Warranties. Grantor
hereby covenants, represents and warrants that: (a) the Lease is a valid and
subsisting demise of the premises which it demises for the full term thereof;
(b) there are no known existing defaults under the Lease on the part of Grantor
and there are no existing defaults under the Lease on the part of any other
person or persons obligated to act or refrain from acting by reason thereof; (c)
Grantor has not assigned the Lease and there are no other assignments of the
Lease; (d) the lessor under the Lease had good right to demise the premises
therein demised; (e) the Lease is in full force and effect without any condition
pending which would by the passage of time ripen into a default; and (f) there
have been no amendments to the Lease.
28. Lease and Subleases affecting the Mortgaged Property. Grantor
agrees faithfully to perform all of its obligations under the Lease, all future
subleases, or other agreements relative to the occupancy of the Mortgaged
Property at any time assigned to Beneficiary as additional security, and to
refrain from any action or inaction which would result in termination of the
Lease, or of any such other subleases, or agreements, or in the diminution of
the value thereof or of the rents or revenues due thereunder. Grantor further
agrees that any future sublease of the Mortgaged Property made after the date of
recording of this Deed of Trust shall contain a covenant to the effect that such
sublessee shall, at Beneficiary's option, agree to attorn to Beneficiary as
sublessor and, upon demand, to pay rent to Beneficiary. Grantor shall not,
without the prior written approval of Beneficiary in each instance, (i) make or
enter into any sublease of all or any part of the Mortgaged Property; (ii)
change, amend, modify, or assign in any manner whatsoever the Lease or any
sublease thereof; (iii) terminate or cancel, surrender or accept a surrender of,
suffer or permit any cancellation, termination or surrender of, the Lease, any
sublease, or any leasehold estate in any manner whatsoever; or (iv) receive,
collect or accept or permit the receipt, collection or acceptance of any
prepayment of rent or other charges under any sublease for more than one (1)
month except that the Grantor may, at the execution of a sublease, accept any
rent security deposits.
29. Excess Interest. In no event shall any interest rate hereunder
exceed the maximum rate permissible for corporate borrowers under applicable law
(the "Maximum Rate"). If, in any month, any interest rate, absent such
limitation, would have exceeded the Maximum Rate, then the interest rate for
that month shall be the Maximum Rate, and, if in further months, that interest
rate would otherwise be less than the Maximum Rate, then that interest rate
shall remain at the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid if the same
had not been limited by the Maximum Rate. In the event that, upon payment in
full of the Obligations under the Loan Agreement, the total amount of interest
paid or accrued under the terms of the Loan Agreement is less than the total
amount of interest which would, but for this Section, have been paid or accrued
if the interest rates otherwise set forth in the Loan Agreement had at all times
been in effect, then Borrower shall, to the extent permitted by applicable law,
pay Lenders an amount equal to the difference between (a) the lesser of (i) the
amount of interest which would have been charged if the Maximum Rate had, at all
times, been in effect or (ii) the amount of interest which would have accrued
had the interest rates otherwise
15
set forth in the Loan Agreement, at all times, been in effect and (b) the amount
of interest actually paid or accrued under the Loan Agreement. In the event that
a court determines that any Lender has received interest and other charges
hereunder in excess of the Maximum Rate, such excess shall be deemed received on
account of, and shall automatically be applied to reduce, the Obligations other
than interest, in the inverse order of maturity, and if there are no Obligations
outstanding, such Lender shall refund to Borrower such excess.
IN WITNESS WHEREOF, this instrument is executed as of the day and
year first above written by the person or persons identified below on behalf of
Grantor (and said person or persons hereby represent that they possesses full
power and authority to execute this instrument).
THE GRANTOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE GRANTOR HAS
RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS DEED OF TRUST.
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GRANTOR:
COUNTRY STAR RESTAURANTS, INC.,
a Delaware corporation
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Its _____ President
ATTEST:
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its Secretary
---------------------
AFFIX CORPORATE SEAL
[SIGNATURE PAGE OF CALIFORNIA OPEN END LEASEHOLD DEED OF TRUST]
16
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
I, a Notary Public in and for said County, in the State aforesaid, do
hereby certify that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, personally known to me
to be the Secretary and President of Country Star Restaurants, Inc., a Delaware
corporation, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that they signed and delivered the said instrument as such, as
a free and voluntary act and as the free and voluntary act and deed of said
corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 30th day of January 1997.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Notary Public
My Commission Expires:
8 - 8 - 2000
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-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Commission # 1108108
[SEAL] Notary Public -- California
Los Angeles County
My Comm. Expires Aug 8, 2000
-----------------------------------
EXHIBIT A
Legal Description of the Land:
19
EXHIBIT B
Permitted Exceptions to Title:
Those title exceptions numbered _______ and listed on title
commitment dated February ___, 1997, issued by Ticor Title Insurance Corporation
for the property described on Exhibit A hereof.
20