[Georgia]
Recording requested by and when recorded mail to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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STATE OF GEORGIA
COUNTY OF ▇▇▇▇▇▇
FIRST OPEN END LEASEHOLD DEED TO SECURE DEBT,
SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF RENTS
THIS LEASEHOLD DEED TO SECURE DEBT, SECURITY AGREEMENT, FINANCING
STATEMENT AND ASSIGNMENT OF RENTS ("Leasehold Deed") made and given as of this
12th day of February 1997, made by ("Grantor"), in favor of CAMERON CAPITAL
LTD., a Bermuda corporation, having an office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇, ▇▇▇▇▇▇▇ ("Grantee"), 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 Grantee 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 Grantor, 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, Grantee has required as a condition, among others, to its
execution and delivery of the Loan Agreement that Grantor enter into this
Leasehold Deed and grant Grantee 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), that Grantor
execute and deliver this Leasehold Deed to Grantee; 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 Leasehold
Deed, and it shall not in any manner limit, affect or impair any grant of a
security interest or other right in favor of the Grantee under the provisions of
the Loan Agreement or under any other security agreement at any time executed by
Grantor;
NOW THEREFORE, FOR AND IN CONSIDERATION of the sum of TEN AND NO/100
DOLLARS ($10.00) and other valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, and in order to secure (i) the indebtedness of
Grantor hereinafter set forth, (ii) all amounts, sums and expenses paid
hereunder by Grantee according to the terms hereof and (iii) all other
obligations and liabilities of Grantor hereunder, together with interest on the
said indebtedness, obligations, liabilities, amounts, sums and expenses (all of
the aforesaid are hereinafter collectively referred to as the "Indebtedness"),
Grantor hereby grants, bargains, sells, warrants, conveys, aliens, remises,
releases, assigns, sets over and confirms to Grantee and the successors and
assigns of Grantee its respective interest in and to, all of the following
described land and interests in land, estates, easements, tenements, rights,
improvements, property, fixtures, machinery and equipment (collectively, the
"Secured Property"):
THAT CERTAIN estate for years and leasehold estate of, in and to all that
tract or parcel of land lying and being in Land Lot 99, of the 17th District,
▇▇▇▇▇▇ County, State of Georgia, which land (the "Land") is more particularly
described on Exhibit A attached hereto and made a part hereof, being the
leasehold estate created by, arising under an by virtue of that certain Ground
Lease from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇ to Country Star Restaurants, Inc., dated March
9, 1995, a short form of which is recorded at Deed Book _______, page ______,
▇▇▇▇▇▇ County, Georgia records; and including all of Borrower's right, title and
interest as lessee or tenant or otherwise in and to said leaseshold estate and
in and to the Ground Lease, including but not limited to, all rights ot
possession of the Land and the other property described in the Gound Lease and
any and all rights set forth in the Ground Lease with respect to the extension
and renewal fo the Ground Lease by lessee; and, subject to the restrictions
hereinafter set forth, together with all extensions and revewals of,
modifications and amendments to, and replacements of, the Ground Lease.
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 (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 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 Leasehold Deed to be real estate and covered by this
Leasehold Deed. 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
Leasehold Deed to be real estate and covered by this Leasehold Deed. 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 Grantee'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
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of the Real Property or any part thereof; and (except as otherwise provided
herein or in the Loan Agreement) the Grantee 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 pledge and assign to Grantee 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 Grantee 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"). Grantee
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 Grantee under this Leasehold Deed. ▇▇▇▇▇▇▇ further agrees to execute and
deliver such assignments of subleases or assignments of land sale contracts as
Grantee may from time to time request. In the event of an Event of Default (1)
the Grantor agrees, upon demand, to deliver to the Grantee all of the Subleases
with such additional assignments thereof as the Grantee may request and agrees
that the Grantee 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
Grantee upon request of the Grantee. Grantor hereby appoints Grantee 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 Grantee 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 Grantee to
make or cause to be made any repairs that may be needful or necessary and (ii)
Grantee agrees that until such Event of Default as aforesaid, Grantee shall
permit Grantor to perform the aforementioned
4
management responsibilities. Upon ▇▇▇▇▇▇▇'s receipt of the Rents, at Grantee'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 Leasehold Deed shall have been satisfied and
released of record and the releasing of this Leasehold Deed shall act as a
revocation of this power of attorney and assignment of rents. Grantee shall have
and hereby expressly reserves the right and privilege (but assumes no
obligation) to demand, collect, sue 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.
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
Grantee a Grantee-in-possession in the absence of the taking of actual
possession of the Mortgaged Property by the Grantee. Nothing contained in this
Leasehold Deed shall be construed as imposing on Grantee any of the obligations
of the sublessor under any sublease of the Mortgaged Property in the absence of
an explicit assumption thereof by ▇▇▇▇▇▇▇. In the exercise of the powers herein
granted to the Grantee, no liability shall be asserted or enforced against the
Grantee, all such liability being expressly waived and released by Grantor.
TO HAVE AND TO HOLD the Secured Property and all parts, rights, members
and appurtenances thereof, to the use, benefit and behoof of Grantee, its
successors and assigns, as an estate for years in accordance with the Lease.
THIS CONVEYANCE is intended to operate and is to be construed as a deed
passing title to the Secured Property to Grantee and is made under those
provisions of the existing laws of the State of Georgia relating to deeds to
secure debt, and not as a mortgage, and is given to secure the following
described indebtedness liabilities and obligations:
(a) The debt evidenced by the Loan Agreement in the maximum principal
amount of Fifteen Millions and NO/100 Dollars ($15,000,000.00) together with any
and all renewal or renewals, modification or modifications and extension or
extensions of the Indebtedness evidenced thereby, and together with any and all
accrued and unpaid interest thereon;
(b) Any and all additional advances made by ▇▇▇▇▇▇▇ to protect or preserve
the Secured
5
Property or the lien or security title thereof on the Secured Property or to pay
taxes, to pay premiums on insurance on the Secured Property, or to repair or
maintain the Secured Property, or to complete improvements on the Secured
Property (whether or not the original Grantor remains the Owner of the Secured
Property at the time of such advances, and whether or not the original Grantee
remains the owner of the Indebtedness and this instrument);
(c) Any and all expenses incident to the collection of the Indebtedness
secured hereby, the foreclosure hereof by action in any court, or by exercise of
the power of sale herein contained; and
(d) The full and prompt payment and performance of any and all obligations
or covenants of Grantor to Grantee under the terms of any other agreements,
assignments or other instruments now or hereafter evidencing, securing or
otherwise relating to the Indebtedness evidenced by the Loan Documents.
The following provisions shall also constitute an integral part of this
Leasehold Deed:
1. Payment of Taxes on the Leasehold Deed. 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 Leasehold Deed or shall levy, assess,
or charge any tax, assessment or imposition upon this Leasehold Deed or the
credit or indebtedness secured hereby or the interest of Trustee or Grantee in
the Premises or upon Trustee or Grantee 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 Grantee or pay (or reimburse Grantee for) such taxes,
assessments or impositions and, unless all such documentary stamps, taxes,
assessments and impositions are paid or reimbursed by ▇▇▇▇▇▇▇ when and as they
become due and payable, all sums hereby secured shall become immediately due and
payable, at the option of Grantee, notwithstanding anything contained herein or
in any law heretofore or hereafter enacted. ▇▇▇▇▇▇▇ agrees to exhibit to
Grantee, 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. ▇▇▇▇▇▇▇ agrees to indemnify Trustee and Grantee 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 Leasehold Deed shall have been
released.
2. Security Agreement.
(a) Insofar as the machinery, apparatus, equipment, fittings,
fixtures, building supplies and materials, articles of personal property,
contract rights, accounts and general intangibles either referred to or
described in this Security Deed, or in any way connected with the use and
enjoyment of the Secured Property by Grantor is concerned (other than any
personal property expressly excluded pursuant to the granting clauses hereof)
this Security Deed is hereby made and declared to be a security agreement,
encumbering each and every item of personal property
6
included herein, in compliance with the provisions of the Uniform Commercial
Code as enacted in the State of Georgia. A financing statement or statements
reciting this Security Deed to be a security agreement, affecting all of said
personal property aforementioned, shall be executed by Grantor and appropriately
filed. The remedies for any violation of the covenants, terms and conditions of
the security agreement herein contained shall be (i) as prescribed herein, or
(ii) as prescribed by general law, or (iii) as prescribed by the specific
statutory consequences now or hereafter enacted and specified in said Uniform
Commercial Code, all at Grantee's sole election. Grantor and Grantee agree that
the filing of such financing statement(s) in the records normally having to do
with personal property shall never be construed as in anywise derogating from or
impairing this declaration and hereby stated intention of Grantor and Grantee
that everything used in connection with the production of income from the
Secured Property and/or adapted for use therein and/or which is described or
reflected in this Security Deed, is, and at all times and for all purposes and
in all proceedings both legal or equitable shall be, regarded as part of the
real estate irrespective of whether (a) any such item is physically attached to
the Premises, (b) serial numbers are used for the better identification of
certain items capable of being thus identified in a recital contained herein, or
(c) any such item is referred to or reflected in any such financing statements
so filed at any time. Similarly, the mention of any such financing statements of
the rights in and to (aa) the proceeds of any fire, casualty and/or hazard
insurance policy, or (bb) any award in condemnation proceedings for a taking or
for loss of value, or (cc) Grantor's interest as lessor in any present or future
lease or rights to income growing out of the use and/or occupancy of the Secured
Property, whether pursuant to lease or otherwise, shall never be construed as in
anywise altering any of the rights of Grantee as determined by this instrument
or impugning the priority of ▇▇▇▇▇▇▇'s lien granted hereby or by any other
recorded document, but such mention in such financing statements is declared to
be for the protection of Grantee in the event any court shall at any time hold
with respect to the foregoing (aa), (bb) or (cc), that notice of ▇▇▇▇▇▇▇'s
priority of interest to be effective against a particular class of persons, must
be filed in the Uniform Commercial Code records.
(b) Grantor shall execute and deliver to Grantee, in form and
substance satisfactory to Grantee, such "financing statements", real estate and
related notice filing and such further assurances as Grantee may from time to
time reasonably consider necessary to create, perfect and preserve ▇▇▇▇▇▇▇'s
security interest herein granted, and Grantee may cause such statements and
assurances to be recorded and filed at such times and places as may be required
or permitted by law to so create, perfect and preserve such security interest.
(c) The assignment and security interest herein granted shall
not be deemed or construed to constitute Grantee as a "trustee in possession" of
the Secured Property, to obligate Grantee to lease the Secured Property or
attempt to do same, or to take any action, incur any expense or perform or
discharge any obligation duty or liability whatsoever under any of the leases or
otherwise.
3. 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-
7
pancy of the Real Property at any time assigned to Grantee 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 Leasehold Deed shall, at Grantee's option and without
any further documentation, attorn to Grantee as sublessor if for any reason
Grantee becomes sublessor thereunder, and, upon demand, pay rent to Grantee, and
Grantee shall not be responsible under such sublease for matters arising prior
to Grantee becoming sublessor thereunder.
4. 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 ▇▇▇▇▇▇▇'s
reasonable judgment, to impair ▇▇▇▇▇▇▇'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.
5. 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 Grantor has
granted in the Loan Agreement, ▇▇▇▇▇▇▇ agrees to indemnify and hold harmless
Trustee and Grantee from and against any and all losses, suits, obligations,
fines, damages, judgments, penalties, claims, charges, costs and expenses
(including reasonable attorneys' and paralegals' 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)
construction, 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.
6. Insurance. Grantor shall, at its sole expense, obtain for,
deliver to, assign and maintain for the benefit of Trustee and Grantee, 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.
7. Condemnation Awards. Grantor hereby assigns to Grantee, as
additional 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.
8. Remedies.
(a) Upon the occurrence of any Event of Default, Grantee may
take such action, without notice or demand, as it deems advisable to protect and
enforce its rights against
8
Grantor and in and to the Secured Property, including, but not limited to, the
following actions, each of which may be pursued concurrently or otherwise, at
such time and in such order as Grantee may determine, in its sole discretion,
without impairing or otherwise affecting the other rights and remedies of
Grantee: (1) declare the entire unpaid Indebtedness to be immediately due and
payable; or (2) notify all subtenants of the Premises and all others obligated
on leases of any part of the Premises that all rents and other sums owing on
leases have been assigned to Grantee and are to be paid directly to Grantee, and
to enforce payment of all obligations owing on subleases, by suit, ejectment,
cancellation, releasing, reletting or otherwise, whether or not Grantee has
taken possession of the Premises, and to exercise whatever rights and remedies
Grantee may have under any assignment of rents and leases; or (3) enter into or
upon the Premises, either personally or by its agents, nominees or attorneys and
dispossess Grantor and its agents and servants therefrom, and thereupon Grantee
may (i) use, operate, manage, control, insure, maintain, repair, restore and
otherwise deal with all and every part of the Premises and conduct the business
thereat; (ii) complete any construction on the Premises in such manner and form
as Grantee deems advisable; (iii) make alterations, additions, renewals,
replacements and improvements to or on the Secured Property; (iv) exercise all
rights and power of Grantor with respect to the Premises, whether in the name of
Grantor, or otherwise, including, without limitation, the right to make, cancel,
enforce or modify leases, obtain and evict tenants, and demand, sue for, collect
and receive all earnings, revenues, rents, issues, profits and other income of
the Premises and every part thereof, which rights shall not be in limitation of
Grantee's rights under any assignment of rents and leases securing the loan; and
(v) apply the receipts from the Premises to the payment of the Indebtedness,
after deducting therefrom all reasonable expenses (including reasonable
attorneys' fees) incurred in connection with the aforesaid operations and all
amounts necessary to pay the taxes, assessments, insurance and other charges in
connection with the Secured Property, as well as just and reasonable
compensation for the services of Grantee, its counsel, agents and employees; or
(4) institute proceedings for the complete foreclosure of this Security Deed
either at law, in equity or pursuant to Paragraph 8 (b) herein, in which case
the Secured Property may be sold for cash in one or more parcels; or (5) with or
without entry, to the extent permitted and pursuant to the procedures provided
by applicable law, institute proceedings for the partial foreclosure of this
Security Deed for the portion of the Indebtedness then due and payable (if
Grantee shall have elected not to declare the entire Indebtedness to be
immediately due and owing), subject to the continuing lien of this Security Deed
for the balance of the Indebtedness not then due;) or (6) sell for cash the
Secured Property or any part thereof and all estate, claim, demand, right, title
and interest of Grantor therein and rights of redemption thereof, pursuant to
power of sale or otherwise, at one or more sales, as an entity or in parcels, in
whole or in part, and as to the fee estate (or any lesser estate including only
the leasehold estate), at Grantee's election, and such estates shall not merge
unless elected by Grantee, at such time and place, upon such terms and after
such notice thereof, as may be required or permitted by law, and in the event of
a sale, by foreclosure or otherwise, of less than all of the Secured Property,
this Security Deed shall continue as a lien on the remaining portion of the
Secured Property; or (7) institute an action, suit or proceeding in equity for
the specific performance of any covenant, condition or agreement contained
herein or in the Lease Agreement or the Loan Agreement or other Loan Documents;
or (8) recover judgment on the Loan Agreement or other Loan Documents either
before, during or after any proceedings for the enforcement of this Security
Deed; or (9) apply for
9
the appointment of a trustee, receiver, liquidator or conservator of the Secured
Property, without regard for the adequacy of the security for the Indebtedness
and without regard for the solvency of Grantor, any guarantor, or any other
person, firm or other entity liable for the payment of the Indebtedness; or (10)
pay or perform any default in the payment, performance or observance of any
term, covenant or condition of this Security Deed, and all payments made or
costs or expenses incurred by Grantee in connection therewith, shall be secured
hereby and shall be, without demand, immediately repaid by Grantor to Grantee
with interest thereon as provided above, the necessity for any such actions and
of the amounts to be paid to be in the sole judgment of ▇▇▇▇▇▇▇, and Grantee may
enter and authorize others to enter upon the Secured Property or any part
thereof for the purpose of performing or observing any such defaulted term,
covenant or condition without thereby becoming liable to Grantor or any person
in possession holding under Grantor; or (11) pursue such other remedies as
Grantee may have under applicable law, in equity or under this Security Deed, or
any of the other Loan Documents; or (12) pursue any remedy available to Grantee
under the Guaranty or any other guaranty.
(b) If an Event of Default shall have occurred, Grantee, at
its option, may sell the Secured Property or any part of the Secured Property at
public sale or sales at the usual place for conducting sales in the county in
which the Secured Property or any part of the Secured Property is situated, to
the highest bidder for cash, in order to pay the Indebtedness secured hereby and
accrued interest thereon and insurance premiums, liens, assessments, taxes and
charges, including utility charges, if any, with accrued interest thereon and
all expenses of the sale and of all proceedings in connection therewith,
including reasonable attorneys' fees, actually incurred, after advertising the
time, place and terms of sale once a week for four (4) weeks immediately
preceding such sale (but without regard to the number of days) in a newspaper in
which Sheriff's sales are advertised in said county, all other notice being
hereby waived by Grantor. At any such public sale, Grantee may execute and
deliver to the purchaser a conveyance of the Secured Property or any part of the
Secured Property in fee simple or leasehold estate, as applicable, with full
warranties of title (or without warranties of Grantee shall so elect) and to
this end, Grantor hereby constitutes and appoints Grantee the agent and
attorney-in-fact of Grantor to make such sale and conveyance, and thereby to
divest Grantor of all right, title, interest, equity and equity of redemption
that Grantor may have in and to the Secured Property and to vest the same in the
purchaser or purchasers at such sale or sales, and all the acts and doings of
said agent and attorney-in-fact are hereby ratified and confirmed and any
recitals in said conveyance or conveyances as to facts essential to a valid sale
shall be binding upon Grantor. The aforesaid power of sale and agency hereby
granted are coupled with an interest and are irrevocable by death or otherwise,
are granted as cumulative of the other remedies provided hereby or by law for
collection of the Indebtedness secured hereby and shall not be exhausted by one
exercise thereof but may be exercised until full payment of all Indebtedness
secured hereby. In the event of any such foreclosure sale by Grantee, Grantor
shall be deemed atenant holding over and shall forthwith deliver possession to
the purchaser or purchasers at such sale or be summarily dispossessed according
to provisions of law applicable to tenants holding over.
(c) The proceeds of any sale made under or by virtue of this
Article II, together with any other sums which then may be held by Grantee under
this Security Deed, whether
10
under the provisions of this Article II or otherwise, shall be applied as
follows:
First: To the payment of the costs and expenses of any such sale,
including reasonable compensation to Grantee, its agents and counsel, and of any
judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Grantee under this Security Deed,
together with interest as provided herein on all advances made by Grantee and
all taxes or assessments, except any taxes, assessments or other charges subject
to which the Secured Property shall have been sold.
Second: To the payment of the whole amount then due, owing or unpaid upon
the indebtedness evidenced by the Loan Agreement for principal, together with
any and all applicable interest and late charges.
Third:To the payment of any other sums required to be paid by Grantor
pursuant to any provision of this Security Deed, or any of the other Loan
Documents.
Fourth: To the payment of the surplus, if any after the payment of all the
Indebtedness, to whomsoever may be lawfully entitled to receive the same.
Grantee and any receiver of the Secured Property, or any part thereof, shall be
liable to account for only those rents, issues and profits actually received by
it.
(d) Grantee may adjourn from time to time any sale by it to be
made under or by virtue of this Security Deed by announcement at the time and
place appointed for such sale or for such adjourned sale or sales; and, except
as otherwise provided by any applicable provision of law, Grantee, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
(e) Upon the completion of any sale or sales made by Grantee
under or by virtue of this Article II, Grantee, or an officer of any court
empowered to do so, shall execute and deliver to the accepted purchaser or
purchases a good and sufficient instrument, or good and sufficient instruments,
conveying, assigning and transferring all estate, right, title and interest in
and to the property and rights sold. Grantee is hereby irrevocably appointed the
true and lawful attorney of Grantor, in its name and stead, to make all
necessary conveyances, assignments, transfers and deliveries of the Secured
Property and rights so sold and for that purpose Grantee may execute all
necessary instruments of conveyance, assignment and transfer, and may substitute
one or more persons with like power, Grantor hereby ratifying and confirming all
that is said attorney or such substitute or substitutes hall lawfully do by
virtue hereof. Any such sale or sales as to the portion of the Security Property
sold and made under or by virtue of this Article II, whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or of
a judgment or degree of foreclosure and sale, shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Grantor in and to the properties and rights so sold, and shall be
a perpetual bar both at law and in equity against Grantor and against any and
all persons claiming or who may claim the same, or any part thereof from,
through or under Grantor.
11
(f) In the event of any sale made under or by virtue of this
paragraph (whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale) the entire Indebtedness, if not previously due and payable, immediately
thereupon shall, anything in the Loan Documents or in this Security Deed to the
contrary notwithstanding, become due and payable.
(g) Upon any sale made under or by virtue of this paragraph
(whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or degree of foreclosure and sale),
Grantee may bid for and acquire the Secured Property or any part thereof and in
lieu of paying cash therefor may make settlement for the purchase price be
crediting upon the Indebtedness the net sales price after deducting therefrom
the expenses of the sale and the costs of the action and any other sums which
Grantee is authorized to deduct under this Security Deed.
(h) No recovery of any judgment by ▇▇▇▇▇▇▇ and no levy of an
execution under any judgment upon the Secured Property or upon any other
property of Grantor shall affect in any manner or to any extent, the lien and
title of this Security Deed upon the Secured Property or any part thereof, or
any liens, titles, rights, powers or remedies of Grantee hereunder, but such
liens titles, rights, powers and remedies of Grantee shall continue unimpaired
as before.
(i) Grantor agrees, to the fullest extent permitted by law,
that upon the occurrence of 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, extension, homestead, exemption
or redemption laws now or hereafter in force, in order to prevent or hinder the
enforcement or foreclosure of this Security Deed, or the absolute sale of the
Secured Property, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers 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 comprised in the security intended to be created hereby
marshalled upon any foreclosure of the lien or title hereof.
Grantee, at is option, is authorized to foreclose this Security Deed
subject to the rights of any subtenants of the Premises, and the failure to make
any such subtenants parties to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted to be by Grantor, a, defense to any
proceedings instituted by Grantee to collect the sums secured hereby.
9. ▇▇▇▇▇▇▇'s Remedies against Multiple Parcels. If more than one
property, lot or parcel is covered by this Leasehold Deed, and if this Leasehold
Deed is foreclosed upon, or judgment is entered upon any Obligations secured
hereby, or if Grantee exercises its power of sale, execution may be made upon or
Grantee 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
12
advertisement may likewise be conducted separately or concurrently, in each case
at ▇▇▇▇▇▇▇'s election.
10. No Merger. In the event of a foreclosure of this Leasehold Deed
or any other mortgage or Leasehold Deed securing the Obligations, the
Obligations then due the Grantee shall not be merged into any decree of
foreclosure entered by the court, and Grantee may concurrently or subsequently
seek to foreclose one or more mortgages or deeds of trust which also secure said
Obligations.
11. 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 Leasehold Deed (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.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
Los Angeles, California
Attention: Chief Operating Officer
Telecopy No. 310.268.2208
with copies to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Brandeis, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No. 212.223.6433
if to Trustee or Grantee:
Cameron Capital Ltd.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇▇▇
Attention: Nic ▇▇▇▇▇▇▇▇
Telecopy No. 441.295.9022
with a copy to:
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▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy No. 303.628.4240
Grantor or Grantee shall, from time to time, have the right to specify as the
proper addressee and/or address for the purposes of this Leasehold Deed any
other party or address in the United States upon giving five (5) days' written
notice thereof.
12. 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 Leasehold Deed upon the Mortgaged Property or any
part thereof (other than persons or property explicitly released as a result of
the exercise by Trustee or Grantee of its rights and privileges hereunder),
Grantee may at any time and from time to time, on request of the Grantor,
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.
13. Governing Law. ▇▇▇▇▇▇▇ and Grantee have agreed that the Loan is
to be secured by collateral security located in different states. In addition,
▇▇▇▇▇▇▇ and Grantee have agreed that the law of the State of Georgia 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
Leasehold Deed shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Leasehold Deed shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Leasehold Deed.
14. Satisfaction of Leasehold Deed. 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
Leasehold Deed or reconveyance of the Mortgaged Property shall promptly be
provided by Grantee to Grantor.
15. Successors and Assigns Included in Parties. This Leasehold Deed
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 ▇▇▇▇▇▇▇'s respective
successors and assigns; all references herein to the Grantor and to the Grantee
shall be deemed to include their respective successors and assigns. ▇▇▇▇▇▇▇'s
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in
14
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.
16. Interpretation with Other Documents. Notwithstanding anything in
this Leasehold Deed to the contrary, in the event of a conflict or inconsistency
between the Leasehold Deed and the Loan Agreement, the provisions of the Loan
Agreement shall govern.
17. Future Advances. The parties hereto intend that, in addition to
any other debt or obligation secured hereby, this Leasehold Deed shall secure
unpaid balances of the Obligations and other such extensions of credit made by
Grantee to Grantor after this Leasehold Deed 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 Grantee or otherwise. Such Obligations
and other extensions of credit may or may not be evidenced by notes executed
pursuant to the Loan Agree ment. All future advances will have the same priority
as the original advance.
18. Invalid Provisions to Affect No Others. In the event that any of
the covenants, agreements, terms or provisions contained in this Leasehold Deed
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 Leasehold Deed 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.
19. Changes. Neither this Leasehold Deed 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 Grantee
relating to this Leasehold Deed shall be superior to the rights of the holder of
any inter vening lien or encumbrance.
20. Time of Essence. Time is of the essence with respect to the
provisions of this Leasehold Deed.
21. Required Notices. Grantor shall notify Grantee promptly of the
receipt of any notice of default from the landlord under the Lease.
22. 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 Leasehold Deed shall continue in full force and effect
against the Mortgaged Property until its release of record, and this Leasehold
Deed shall become and remain a valid fee mortgage lien on the Mortgaged
Property.
15
23. 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.
24. 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 Grantee 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 Leasehold Deed shall contain a covenant to the effect that such
sublessee shall, at Grantee's option, agree to attorn to Grantee as sublessor
and, upon demand, to pay rent to Grantee. Grantor shall not, without the prior
written approval of Grantee 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.
25. Excess Interest. In no event shall any interest rate hereunder
exceed the maximum rate permissible for corporate Grantors 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 paragraph, have been paid or
accrued if the interest rates otherwise set forth in the Loan Agreement had at
all times been in effect, then Grantor 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 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
16
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.
26. Payment of Rent and Performance Under Ground Lease and Other
Agreements.
(a) Borrower shall pay or cause to be paid, not later than the date upon
which same becomes due and payable pursuant to the provisions of the Ground
Lease, all rent, additional rent and other payments required to be paid by
Borrower under the Ground Lease according to the terms, conditions and
provisions of the Ground Lease. Borrower shall forward to Lender, simultaneously
with the transmittal of such payment, a photostatic copy of such transmittal of
payment, which copy shall be certified by Borrower as being true, correct and
complete and as being delivered by Borrower to the party designated on such
date. Within ten (10) days after the date of each such payment, Borrower shall
deliver to Lender the original or photostatic copy of the official receipt
evidencing such payment or other proof of payment satisfactory to lender.
(b) At the sole cost and expense of Borrower, Borrower shall duly and
punctually observe and perform all of the covenants, duties, obligations and
agreements of the lessee or tenant under the Ground Lease in strict accordance
with the terms, conditions and provisions thereof, shall not do or permit to be
done anything to impair the Lender's security, shall enforce the performance and
observance of each and every covenant and condition of the Ground Lease to be
performed or observed by any other party to the Ground Lease and shall otherwise
maintain the Ground Lease as a valid and subsisting estate for years and
leasehold estate in full force and effect in accordance with the terms,
conditions and provisions thereof without threat of termination of the Ground
Lease or diminishment of the leasehold estate demised thereby.
(c) In the event Borrower defaults under the terms, conditions or
provisions of the Ground Lease, or Borrower receives any notice from any Lessor
under the Ground Lease or otherwise of the occurrence of a default or event of
default on the part of the Borrower or any other party under the Ground Lease,
or Borrower receives any notice from any Lessor under the Ground Lease or
otherwise of the occurrence of, or failure of, any condition under the Ground
Lease or any other circumstance pursuant to which the Ground Lease may be
terminated or canceled or the leasehold estate may otherwise be diminished,
Borrower shall within three (3) days of the commission of such default or of the
receipt of such notice of default or other occurrence, notify Lender of the
occurrence of such default or event of default or occurrence and provide Lender
in such notification with a copy of such notice of default. Without diminishing
in any respect ▇▇▇▇▇▇'s rights hereunder or otherwise, Borrower shall in such
notification and at all times thereafter provide Lender with such information as
Lender may require with respect to the nature of such default, the steps
Borrower is taking (or proposes to take) with respect thereto and any other
information which Lender may require. Borrower shall take any and all actions as
are necessary to avoid termination of the Ground Lease, including the
institution of legal proceedings to enforce the Ground Lease, and Borrower shall
appear in and defend any action or proceeding arising under or in any manner
17
connected with the Ground Lease, or the obligations or liabilities of Borrower
as the lessee thereunder.
(d) Borrower warrants, represents and certifies that:
(i) The Borrower is the sole owner and holder of the entire lessee's
interest in the Ground Lease and of the leasehold estate created thereby,
free and clear of any and all liens, security interests and encumbrances,
but subject only to those title exceptions listed on Exhibit B attached
hereto and made a part hereof. ▇▇▇▇▇▇▇▇ has made no assignment other than
this Mortgage of any of the rights of Borrower under the Ground Lease.
(ii) The Ground Lease is a valid and subsisting estate for years of,
in and to the Land and of the other property described therein and
purported to be demised thereunder for the term therein set forth. The
Ground Lease is valid and enforceable and in full force and effect in
accordance with the terms, conditions and provisions thereof and has not
been altered, modified or amended in any manner whatsoever except as
expressly set forth herein.
(iii) Neither the Borrower nor the lessor under the Ground Lease is
in default under any of the terms, covenants or conditions thereof nor
does there exist any event of default or any state of facts or condition
which would with the passage of time or the giving of notice, or both,
constitute a default or event of default on the part of said lessor or
Borrower under any of said terms, covenants or conditions or otherwise
impair, reduce or otherwise alter the leasehold estate conveyed
thereunder.
(iv) Borrower is not prohibited under any judgment, court decree,
administrative regulation, administrative ruling, ordinance, law or other
ruling applicable to Borrower, from the execution and delivery of this
Mortgage and of the assignment of ▇▇▇▇▇▇▇▇'s interest in the Ground Lease,
the performance of each and every obligation of Borrower hereunder and
under the Ground Lease and the meeting of each and every condition herein
or in the Ground Lease contained.
(v) That no action has been brought or threatened which would in any
manner interfere with the right of Borrower to execute this Assignment and
to perform all of Borrower's obligations contained in this Assignment or
under the Leases.
(vi) The copy of the Ground Lease provided by Borrower to Lender is
a true, correct and complete copy thereof and that the records related
thereto which have been furnished by the Borrower to the Lender are true,
correct, accurate and complete in all material respects.
(vii) Borrower has neither done any act nor failed to do any act
which might prevent Lender from, or limit Lender in, acting under any of
the provisions of this Mortgage or which might cause Borrower to be
estopped from exercising any of its rights under the
18
Ground Lease.
(viii)Borrower has full power and authority to execute and deliver
this Mortgage and said execution and delivery has been duly authorized and
does not conflict with or constitute a default under the Ground Lease or
any other agreement, indenture or other instrument binding upon the
Borrower or the Premises.
(e) Borrower shall not, without in each such event the prior written
consent of Lender, enter into any agreements, whether written or oral, which
purport to amend, modify, or vary the terms, conditions and provisions of the
Ground Lease or which directly or indirectly waives or releases any lessor from
the performance or observance by the lessor of any obligation or condition of
the Ground Lease. The prior written consent of Lender shall be evidenced in the
following manner: Lender must either (i) join in the execution of such
amendment, modification of variance shall be thereupon recorded in the real
estate records in the state and county in which the Land is located, or (ii)
Lender's written consent shall be executed in recordable form, attaching thereto
a true, correct and complete copy of such amendment, modification or variance,
and which document indicating such consent of Lender shall be thereupon recorded
in the real estate records in the state and county in which the Land is located.
Any such purported amendment, modification or variance entered into by Borrower
and such lessor under the Ground Lease without the prior written consent of
Lender evidenced in such manner shall be null and void ab initio and shall be of
no force and effect.
(f) Borrower shall duly and punctually perform all covenants, duties,
obligations and agreements of Borrower under that certain Escrow Agreement of
even date herewith between Borrower, ___________ and ______________, as Escrow
Agent, and under any replacement escrow agreements or other agreements or
obligations related to the payment of rental under the Ground Lease hereafter
entered into or agreed to by Borrower and any other parties interested in the
Ground Lease. Provided further, however, that should Borrower fail to perform
any of the covenants, duties, obligations or agreements of Borrower under such
Escrow Agreement or such other agreements in strict accordance with the terms,
conditions and provisions thereof, said failure shall constitute an Event of
Death hereunder.
(g) In addition to the foregoing and not in limitation thereof, in the
event of a failure or default by Borrower in the observance or performance of
any one or more of the covenants and obligations of the lessee under the Ground
Lease or in the event that the Ground Lease otherwise becomes subject to, or
threatened with, termination or cancellation, such default or condition or
occurrence shall constitute a default hereunder and under the Note and Secured
Indebtedness secured hereby and, in any such event, Lender, at ▇▇▇▇▇▇'s sole
option, may, in addition to the other remedies provided herein in the event of a
default hereunder, do any one or more of the following: (a) declare immediately
due and payable the Note secured hereby and proceed to exercise any and all
rights and remedies available to Lender hereunder and under said Note, at law or
in equity; (b) and to enter in and upon the Premises or any part thereof to such
extent and as often as Lender, in its sole discretion, deems necessary or
desirable in order to prevent or cure any default or event of
19
default by ▇▇▇▇▇▇▇▇. Lender may pay and expend such sums of money as Lender, in
its sole discretion, deems necessary for any such purpose, including, but not
limited to the payment of any rental amounts or other sums due under the Ground
Lease, and Lender may proceed to perform any and all obligations of the Borrower
contained in the Ground Lese and exercise any and all rights of Borrower therein
contained as fully as the Borrower itself could, and upon so doing shall be
subrogated to any and all rights of Borrower as Lessee under the Ground Lease,
and ▇▇▇▇▇▇▇▇ hereby agrees to pay to ▇▇▇▇▇▇ immediately and without demand, all
such sums so paid and expended by ▇▇▇▇▇▇, together with interest thereon from
the date of such payment at the default rate set forth in the Note, which sums
shall be secured by this Mortgage. Borrower hereby appoints and constitutes
Lender as ▇▇▇▇▇▇▇▇'s duly authorized attorney in fact to make advances under
this Mortgage for any purpose described in this paragraph and to take any other
action referenced in this Mortgage, and such power is coupled with an interest
and is irrevocable by death or otherwise.
(h) New Ground Lease with Lender. If the Ground Lease shall be terminated
prior to the natural expiration of its term due to an event of default
thereunder, and if, pursuant to any provision of the Ground Lease, the Lender or
its designee shall acquire from the Lessor under the Ground Lease a new lease of
the Premises and the Improvements, the Borrower shall have no right, title or
interest in or to such new lease or the leasehold estate created thereby, or
renewal privileges therein contained.
(i) No Merger of Fee and Leasehold Estates. So long as any portion of the
Secured Indebtedness shall remain unpaid, and unless the Lender shall otherwise
consent, the fee title to the Premises and the Improvements and the leasehold
estate therein created pursuant to the provisions of the Ground Lease shall not
merge, but shall always be kept separate and distinct, notwithstanding the union
of such estates in the Borrower or in any other person, by purchase, operation
of law or otherwise. If the Lender shall acquire the fee title to the Premises
and the Improvements and the leasehold estate therein created pursuant to the
provisions of the Ground Lease, by foreclosure of this Mortgage or otherwise,
such estates shall not merge as a result of such acquisition and shall remain
separate and distinct for all purposes after such acquisition unless and until
the Lender shall elect to merge such estates.
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 LEASEHOLD
DEED.
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Signed, sealed and delivered Borrower:
in the presence of: COUNTRY STAR RESTAURANTS, INC.,
a Delaware corporation.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Witness
Its ______ President
Attest: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Its: /s/ Secretary
-------------------------
AFFIX CORPORATE SEAL
[SIGNATURE PAGE OF GEORGIA OPEN END LEASEHOLD DEED]
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 Secretary and President of Country Star Restaurant, Inc., a Delaware
corporation, and personally known to me to be the same persons whose name 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 30 day of January , 1997.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Notary Public
My Commission Expires:
8 - 8 - 2000
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Commission #1108108
Notary Public--California
Los Angeles County
My Comm. Expires Aug 8, 2000
EXHIBIT A
Legal Description of Land:
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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.
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