HomeMy WebLinkAbout1997 - Deed of Trust, Security Agreement and Assignment of Rents and Fixture Filing - Big Foot Restaurants et al - 97011401779701140177
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Franchise Mortgage Acceptance Company LLC
5 Greenwich Office Park, •4th Floor
Greenwich, Connecticut 06831
Attention: Ms. Charan J. Chanana
to
CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation,
as Trustee
for the use and benefit of
FRANCHISE MORTGAGE ACCEPTANCE COMPANY LLC,
a California limited liability company,
as Beneficiary
. DEED OF TRUST, SECURITY AGREEMENT AND ASSIGNMENT OF
RENTS AND FIXTURE FILING
(Leasehold)
Dated: January 3_, 1997
Location: 15036 Pacific Highway South
Seattle, WA 98188
(Store No. 2375)
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BIG FOOT RESTAURANTS, INC., a Washington Corporation, as Trustor
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THIS DEED OF TRUST AND ASSIGNMENT OF RENTS AND FIXTURE
FILING is made the 3 ' day of January, 1997, between Big Foot
Restaurants, Inc., a Washington corporation (hereinafter referred
to as Trustor) for the use and benefit of Franchise Mortgage
Acceptance Company LLC, a California limited liability company,
having an office at 5 Greenwich Office Park, 4th Floor, Greenwich,
Connecticut 06831 (hereinafter referred to as Beneficiary).
W I T N E S S E 2 H:
Whereas Trustor is the owner of a leasehold estate in the
premises described in Exhibit A attached hereto (hereinafter
referred to as the Premises) under and pursuant to the provisions
of the lease described in Exhibit A -1 attached hereto (hereinafter
referred to as the Ground Lease);
NOW THEREFORE, to secure the payment of certain
obligations in the aggregate sum of FIVE HUNDRED . THIRTY-FIVE
THOUSAND and 00 /000 Dollars ($535,000), lawful money of the United
States of America, to be paid with interest and periodic charges
(said indebtedness, interest, periodic charges and all other sums
which may or shall become due hereunder being hereinafter
collectively referred to as the Obligations) according to a certain
Secured Promissory Note dated the date hereof given by Trustor to
Beneficiary (hereinafter referred to as the Note), and a certain
Pledge and Security Agreement entered into between Trustor and
Beneficiary (hereinafter referred to as the Security Agreement) ,
Trustor has given, granted, bargained, sold, aliened, enfeoffed,
conveyed, confirmed, transferred and assigned, and by these
presents does irrevocably give, grant, bargain, sell, alien,
enfeoff, convey, confirm, transfer and assign unto Trustee in
trust, with power of sale and right of entry and possession,
forever all right, title and interest of Trustor now owned, or
hereafter acquired, in and to the following property, rights and
interests (such property, rights and interests being hereinafter
collectively referred to as the Trust Property):
(a) the Premises;
(b)- all buildings and improvements now or hereafter
located on the Premises (hereinafter referred to as the
Improvements);
(b)(1) the Ground Lease and the leasehold estate created
thereunder;
(b) (2) all modifications, extensions and renewals of the
Ground Lease and all credits, deposits, options, purchase options,
privileges and rights of Trustor under the Ground Lease, including,
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privileges and rights of Trustor under the Ground Lease, including,
but not limited to, the right, if any, to renew or extend the
Ground Lease for a succeeding term or terms or to acquire fee title
to or other interest in all'or any portion of the Premises or the
Improvements;
(c) all of the estate, right, title, claim or demand of
any nature whatsoever of Trustor, either in law or in equity, in
possession or expectancy, in and to the Trust Property or any part
thereof;
(d) all easements, rights -of -way, gores of land,
streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments, and
appurtenances of any nature whatsoever, in any way belonging,
relating or pertaining to the Trust Property (including, without
limitation, any and all development rights, air rights or similar
or comparable rights of any nature whatsoever now or hereafter
appurtenant to the Premises or now or hereafter transferred to the
Premises) and all land lying in the bed of any street, road or
avenue, opened or proposed, in front of or adjoining the Premises
to the center line thereof;
(e) all machinery, apparatus, equipment, fittings,
fixtures and other property of every kind and nature whatsoever
owned by Trustor, or in which Trustor has or shall have an
interest, now or hereafter located upon the Trust Property, or
N. appurtenances thereto, or usable in connection with the present or
future operation and occupancy of the Trust Property and all
d building equipment, materials and supplies of any nature whatsoever
, owned by Trustor, or in which Trustor has or shall have an
,4 interest, now or hereafter located upon the Trust Property,
• including, without limitation, all equipment for the generation or
c distribution of air, water, heat, electricity, light, fuel or
Du refrigeration or for ventilating or air- condition purposes or for
Cr) sanitary or drainage purposes or for the removal of dust, refuse or
garbage, fire sprinklers and alarms, control devices, partitions,
appliances, furniture, furnishings, cabinets, awnings, window
shades, blinds, drapes and drapery rods and brackets, screens,
carpeting and other floor coverings, lobby furnishings,
incinerators and other property of every kind and description now
or hereafter placed, attached, affixed or installed in such
buildings, structures or improvements, and all replacements,
repairs, additions, accessions or substitution or proceeds thereto
or therefor (hereinafter collectively referred to as the
Equipment), and the right, title and interest of Trustor in and to
any of the Equipment which may be subject to any security
agreements (as defined in the Uniform Commercial Code of the State
in which the Premises are located) , superior in lien to the lien of
this Deed of Trust;
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DSLA- 166100L.1
January 2, 1997
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(f) all awards or payments, including interest thereon,
and the right to receive the same, which may be made with respect
to the Trust Property, whether from the exercise of the right of
eminent domain (including any transfer made in lieu of the exercise
of said right), or for any other injury to or decrease in the value
of the Trust Property;
(g) all leases and other agreements (other than the
Ground Lease) affecting the use or occupancy of the Trust Property
now or hereafter entered into (hereinafter referred to as the
Leases) and the right to receive and apply the rents, issues,
income, revenues and profits of the Trust Property (hereinafter
referred to as the Rents) to the payment of the Obligations;
(h) all proceeds of and any unearned premiums on any
insurance policies (collectively, hereinafter referred to as the
Policies) covering the Trust Property, including, without
limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for
damage to the Trust Property;
(i) the right, in the name and on behalf of Trustor, to
appear in and defend any action or proceeding brought with respect
to the Trust Property and to commence any action or proceeding to
protect the interest of Beneficiary in the Trust Property; and
(j) all proceeds of each of the foregoing.
TO HAVE AND TO HOLD the above granted and described Trust
Property unto and to the proper use and benefit of Trustee, and the
successors and assigns of Trustee forever;
IN TRUST, to secure the payment to Beneficiary of the
Obligations at the time and in the manner provided for its payment
in the Note and in this Deed of Trust, AND Trustor covenants and
agrees with and represents and warrants to Trustee and Beneficiary
as follows:.
1. Payment of Obligations. Trustor will pay the
Obligations at the time and in the manner provided for its payment
in the Note, the Security Agreement and this Deed of Trust, in the
Security Agreement and in this Deed of•Trust and any renewals,
extensions or modifications thereof and any replacements or
substitutions therefor, (a) payment of such further sums as Trustor
may hereafter borrow from Beneficiary when evidenced by another
note reciting it as so secured, and any renewals, extensions or
modifications thereof and replacement or substitutions therefor,
(b). payment of all other amounts agreed or provided to be paid by
Trustor and such further sums as may be advanced or loaned by
Beneficiary to Trustor hereunder or under the Note or Security
Agreement and (c) performance of each agreement of Trustor herein
contained or contained in any other agreement given by Trustor to
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January 2, 1997
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Beneficiary for the purpose of further securing any indebtedness
hereby secured.
2. Warranty of Title. Subject only to those exceptions
to title specifically set forth in the title policy issued or to be
issued to Beneficiary and insuring the lien of this Deed of Trust,
Trustor warrants the title to the Premises, the Improvements, the
Equipment, the Ground Lease and the balance of the Trust Property.
In addition, Trustor represents and warrants that (i) the Ground
Lease is in full force and effect and has not been modified in any
manner whatsoever, (ii) there are no defaults under the Ground
Lease and no event has occurred, which but for the passage of time,
or notice, or both, would constitute a default under the Ground
Lease, (iii) all rents, additional rents and other sums due and
payable under the Ground Lease have been paid in full, and (iv) no
action has commenced and no notice has been given or received for
the purpose of terminating the Ground Lease. Upon the recording of
this Deed of Trust, the lien of this Deed of Trust shall be a
perfected lien and fixture filing on all Equipment and other
personal property mortgaged hereunder.
3. Insurance. Trustor shall keep the Trust Property
insured in accordance with the provisions of the Security
Agreement. Sums paid to Beneficiary by any insurer may be retained
and applied by Beneficiary toward payment of the Obligations
whether or not then due and payable in such order, priority and
proportions as Beneficiary in its discretion shall deem proper or,
at the discretion of Beneficiary, the same may be paid, either in
whole or in part, to Trustor for such purposes as Beneficiary shall
designate. If Beneficiary shall receive and retain such insurance
proceeds, the lien of this Deed of Trust shall be reduced only by
the amount thereof received and retained by Beneficiary and
actually applied by Beneficiary in reduction of the Obligations.
4. Payment of Taxes, etc.. Trustor shall pay all
taxes, assessments, water rates, sewer rents, utility charges and
other charges, including vault charges and license fees for the use
of vaults, chutes and similar areas adjoining the Premises, now or
hereafter levied or assessed against the Trust Property
(hereinafter referred to as the Taxes) prior to the date upon which
any fine, penalty, interest or cost may be added thereto or imposed
by law for the nonpayment thereof. Trustor shall deliver to
Beneficiary, upon request, receipted bills, canceled checks and
other evidence satisfactory to Beneficiary evidencing the payment
of the Taxes prior to the date upon which any fine, penalty,
interest or cost may be added thereto or imposed by law for the
nonpayment thereof.
5. Condemnation. Notwithstanding any taking by any
public or quasi- public authority through eminent domain or
otherwise, Trustor shall continue to pay the Obligations at the
time and in the manner provided for its payment in the Note, the
Security Agreement and this Deed of Trust and the Obligations shall
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DBLA- 166100L.1
January 2, 1997
not be reduced until any award or.payment therefor shall have been
actually received and applied by Beneficiary to the discharge of
the Obligations. Beneficiary may apply the entire amount of any
such award or payment to the discharge of the Obligations whether
or not then due and payable in such order, priority and proportions
as Beneficiary in its discretion shall deem proper. If the Trust
_ Property is sold, through foreclosure or otherwise, prior to the
receipt by Beneficiary of such award or payment, Beneficiary shall
have the right, whether or not a deficiency judgment on the Note
shall have been sought, recovered or denied, to receive such award
or payment, or a portion thereof sufficient to pay the Obligations,
whichever is less. Trustor shall file and prosecute its claim or
claims for any such award or payment in good faith and with due
diligence and cause the same to be collected and paid over to
Beneficiary. Trustor hereby irrevocably authorizes and empowers
Beneficiary and Trustee, in the name of Trustor or otherwise, to
collect and receipt for any such award or payment and to file and
prosecute such claim or claims. Although it is hereby expressly
agreed that the same shall not be necessary in any event, Trustor
shall, upon demand of Beneficiary, make, execute and deliver any
and all assignments and other instruments sufficient for the
purpose of assigning any such award or payment to Beneficiary and
Trustee, free and clear of any encumbrances of any kind or nature
whatsoever.
6. Leases and Rents. Subject to the terms of this
paragraph, Beneficiary and Trustee waive the right to enter the
Trust Property for the purpose of collecting the Rents, and grant
Trustor the right to collect the Rents. Trustor shall hold the
Rents, or an amount sufficient to cover the payment of all
operating expenses of the Trust Property and to discharge all
current sums due on the Obligations, in trust for use in payment of
such current operating expenses and current sums due on the
Obligations. The right of Trustor to collect the Rents may be
revoked by Beneficiary upon any default by Trustor under the terms
of the Note, the Security Agreement or this Deed of Trust by giving
notice of such revocation to Trustor. Following such notice
Beneficiary or Trustee may retain and apply the Rents toward
payment of the Obligations in such order, priority and proportions
as Beneficiary, in its discretion, shall deem proper, or to the
operation, maintenance and repair of the Trust Property, and
irrespective of whether Beneficiary or Trustee shall have commenced
a foreclosure of this Deed of Trust or a sale of the Trust Property
pursuant to the provisions of this Deed of Trust or shall have
applied or arranged for the appointment of a receiver. Trustor
shall, not, without the consent of Beneficiary, make, or suffer to
be made, any Leases or modify or cancel any Leases or accept
prepayments of installments of the Rents for a period of more than
one (1) month in advance or further assign the whole or any part of
the Rents. Trustor shall fulfill or perform each and every
'provision of the Leases on the part of Trustor to be fulfilled or
performed, promptly send copies of all notices of default which
Trustor shall send or receive under the Leases to Beneficiary, and
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enforce, short of termination of the Leases, the performance or
observance of the provisions thereof by the tenants thereunder. In
addition to the rights which Beneficiary may have herein, in the
event of any default under this Deed of Trust, Beneficiary, at its
option, may require Trustor to pay monthly in advance to
Beneficiary, Trustee or any receiver appointed to collect the
_ Rents, the fair and reasonable rental value for the use and
occupation of such part of the Trust Property as may be in
possession of Trustor. Upon default in any such payment, Trustor
will vacate and surrender possession of the Trust Property to
Beneficiary, Trustee or to such receiver and, in default thereof,
Trustor may be evicted by summary proceedings or otherwise.
Nothing contained in this paragraph shall be construed as imposing
on Beneficiary or Trustee any of the obligations of the lessor
under the Leases.
7. Maintenance of the Trust Property. Trustor shall
cause the Trust Property to be maintained in good condition and
repair and will not commit or suffer to be committed any waste of
the Trust Property. The Improvements and the Equipment shall not
be removed, demolished or materially altered (except for normal
replacement of the Equipment), without the consent of Beneficiary.
Trustor shall promptly comply with all existing and future
.governmental laws, orders, ordinances, rules and; regulations
affecting the Trust Property, or any portion thereof or the use
thereof. Trustor shall promptly repair, replace or rebuild all or
any part of the Trust Property which may be damaged or destroyed by
fire or other property hazard or casualty (including any fire or
other property hazard or casualty for which insurance was not
obtained or obtainable) or which may be affected by any taking by
any public or quasi- public authority through eminent domain or
otherwise, and shall complete and pay for, within a reasonable
time, any structure at any time in the process of construction or
repair on the Premises. If such fire or other property hazard or
casualty shall be covered by the Policies, Trustor's obligation to
repair, replace or rebuild such portion of the Trust Property shall
be contingent upon Beneficiary paying Trustor the proceeds of the
Policies, or such portion thereof as shall be sufficient to
complete such repair, replacement or rebuilding, whichever is less.
Trustor will not, without obtaining the prior consent of
Beneficiary, initiate, join in or consent to any private
restrictive covenant, zoning ordinance, or other public or private
restrictions, limiting or affecting the uses which may be made of
the Trust Property or any part thereof.
8. Environmental Provisions. For the purposes of this
paragraph the following terms shall have the following meanings:
the term "Hazardous Material" shall mean any material or substance
that, whether by its nature or use, is now or hereafter defined as
a hazardous waste, hazardous substance, pollutant or contaminant
under any Environmental Requirement, or which is toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous and which is now or hereafter
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DBLA- 166100L.1
January 2, 1997
regulated under any Environmental Requirement, or which is or
contains petroleum, gasoline, diesel fuel or another petroleum
hydrocarbon product, the term "Environmental Requirements" shall
collectively mean all present and future laws, statutes,
ordinances, rules, regulations, orders, codes, licenses, permits,
decrees, judgments, directives or the equivalent of or by any
Governmental Authority and relating to or addressing the protection
of the environment or human health, and the term "Governmental
Authority" shall mean the Federal government, or any state or other
political subdivision'thereof, or any agency, court or body of the
Federal government, any state or other political subdivision
thereof, exercising executive, legislative, judicial, regulatory or
administrative functions. Trustor hereby represents and warrants
to Beneficiary that to the best of Trustor's knowledge after
diligent inquiry (i) no Hazardous Material is currently located at,
on, in, under or about the Trust Property, (ii) no Hazardous
Material is currently located at, in, or, under or about the Trust
Property in a manner which violates any Environmental Requirement,
or which requires cleanup or corrective action of any kind under
any Environmental Requirement, (iii) no releasing, emitting,
discharging, leaching, dumping or disposing of any Hazardous
Material from the Trust Property onto or into any other property or
from any other property onto or into the Trust Property has
occurred or is occurring in violation of any Environmental
Requirement, (iv) no notice of violation, lien, complaint, suit,
order or other notice with respect to the Trust Property is
14 presently outstanding under any Environmental Requirement, and (v)
the Trust Property and the operation thereof are in full compliance
Tr with all Environmental Requirements. Trustor shall comply, and
shall cause all tenants or other occupants of the Trust Property to
g ri comply, in all respects .with all Environmental Requirements, and
will not generate, store, handle, process, dispose of or otherwise
C? use, and will not permit any tenant or other occupant of the Trust
Property to generate, store, handle, process, dispose of or
Otherwise use, Hazardous Materials at, in, on, under or about the
Trust Property in a manner that could lead or potentially lead to
the imposition on Trustor, Beneficiary or the Trust Property of any
liability or lien of any nature whatsoever under any Environmental
Requirement. Trustor shall notify Beneficiary promptly in the event
of any spill or other release of any Hazardous Material at, in, on,
under or about the Trust Property which is required to be reported
to a Governmental Authority under any Environmental Requirement,
will promptly forward to Beneficiary copies of any notices received
by Trustor relating to alleged violations of any Environmental
Requirement and will promptly pay when due any fine or assessment
against Beneficiary, Trustor or the Trust Property relating to any
Environmental Requirement. If at any time it is determined that
the operation or use of the Trust Property violates any applicable
Environmental Requirement or that there are Hazardous Materials
located at, in, on, under or about the Trust Property which, under
any Environmental Requirement, require special handling in
collection, storage, treatment or disposal, or any other form of
cleanup or corrective action, Trustpr shall, within thirty (30)
8 DBLA- 166100L.1
January 2, 1997
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all costs and expenses incurred in connection with such audit,
otherwise the costs and expenses of such audit shall,
notwithstanding anything to the contrary set forth in this
paragraph, be paid by Beneficiary. If this Deed of Trust is
foreclosed, or if the Trust Property is sold pursuant to the
provisions of this Deed of Trust, or if Trustor tenders a deed or
assignment in lieu of foreclosure or sale, Trustor shall deliver
the Trust Property to the purchaser at foreclosure or sale or to
Beneficiary, its nominee, or wholly owned subsidiary, as the case
may be, in a condition that complies in all respects with all
Environmental Requirements. Trustor will defend, indemnify, and
hold harmless Beneficiary, its employees, agents, officers, and
directors, from and against any and all claims, demands, penalties,
causes of action, fines, liabilities, settlements, damages, costs,
or expenses of whatever kind or nature, known or unknown, foreseen
or unforeseen, contingent or otherwise (including, without
limitation, counsel and consultant fees and expenses, investigation
and laboratory fees and expenses, court costs, and litigation
expenses) arising out of, or in any way related to, any breach by
Trustor of any of the provisions of this paragraph, the presence,
disposal, spillage, discharge, emission, leakage, release, or
threatened release of any Hazardous Material which is at, in, on,
under, about, from or affecting the Trust Property, including,
without limitation, any damage or injury resulting from any such
Hazardous Material to or affecting the Trust Property or the soil,
water, air, vegetation, buildings, personal property, persons or
animals located on the Trust Property or on any other property or
otherwise, any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to any
such Hazardous Material, any lawsuit brought or threatened,
settlement reached, or order or directive of or by any Governmental
Authority relating to such Hazardous Material, or any violation of
any Environmental Requirement. The aforesaid indemnification
shall, notwithstanding any exculpatory or other provision of any
nature whatsoever to the contrary set forth in the Note, this Deed
of Trust or any other document or instrument now or hereafter
executed and delivered in connection with the loan evidenced by the
Note and secured by this Deed of Trust, constitute the personal
recourse undertakings, obligations and liabilities of Trustor. The
aforesaid indemnification shall not be applicable to any claim,
demand, penalty, cause of action, fine, liability, settlement,
damage, cost or other expense of any type whatsoever (i)
occasioned, arising and caused solely and directly as the result of
the gross negligence or willful misconduct of Beneficiary, its
nominee or wholly owned subsidiary or their respective employees or
agents and irrespective of whether occurring prior or subsequent to
the date upon which Beneficiary, its nominee or wholly owned
subsidiary acquires possession of the Trust Property by foreclosure
of this Deed of Trust, a sale of the Trust Property pursuant to the
provisions of this Deed of Trust, acceptance of a deed or
assignment in lieu of foreclosure or sale or otherwise, or (ii)
occasioned, arising and caused solely and directly as the result of
any act of any person or party (other than an act of Trustor, its
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January 2, 1997
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employees or agents or persons or parties under the control of
Trustor, or an act of Beneficiary, its nominee or wholly owned
subsidiary or their respective employees or agents which does not
constitute negligence or willful misconduct, or an act of any
Governmental Authority, including, without limitation, any change
in any Environmental Requirement) and occurring subsequent to the
earlier to occur of (x) the date of payment to Beneficiary in cash
of the entire Obligations, and (y) the date upon which Beneficiary,
its nominee or wholly owned subsidiary acquires possession of the
Trust Property by foreclosure of this Deed of Trust, a sale of the
Trust Property pursuant to the provisions of this Deed of Trust,
acceptance of a deed or assignment in lieu of foreclosure or sale
or otherwise. Except as hereinabove specifically provided to the
contrary in this paragraph, the obligations and liabilities of
Trustor under this paragraph shall survive and continue in full
force and effect and shall not be terminated, discharged or
released, in whole or in part, irrespective of whether the
Obligations has been paid in full and irrespective of any
foreclosure of this Deed of Trust, sale of the Trust Property
pursuant to the provisions of this Deed of Trust or acceptance by
Beneficiary, its nominee or wholly owned subsidiary of a deed or
assignment in lieu of foreclosure or sale and irrespective of any
other fact or circumstance of any nature whatsoever.
9. Estoppel Certificates. Trustor, within ten (10)
days after request by Beneficiary and at its expense, will furnish
Beneficiary with a statement, duly acknowledged and certified,
setting forth the amount.of the Obligations and the offsets or
defenses thereto, if any, and any other matter reasonably requested
by Beneficiary.
10. Transfer or Encumbrance of the Trust Property. No
part of the Trust Property nor any interest of any nature
whatsoever therein nor any interest of any nature whatsoever in
Trustor (whether partnership, stock, equity, beneficial, profit,
loss or otherwise) shall in any manner be further encumbered, sold,
transferred, assigned or conveyed, or permitted to be further
encumbered, sold, transferred, assigned or conveyed without the
prior consent of Beneficiary, which consent in any and all
circumstances may be withheld in the sole and absolute discretion
of Beneficiary. If any part of the Trust Property or any interest
of any nature whatsoever therein or any interest of any nature
whatsoever in Trustor is encumbered, sold, transferred assigned or
conveyed, or permitted to be further encumbered, sold, transferred,
assigned or conveyed without the prior consent of the Beneficiary,
Beneficiary shall have the right, at its option, to declare all
amounts secured hereby immediately due and payable. The provisions
of the foregoing sentences of this paragraph shall apply to each
and every such further encumbrance, sale, transfer, assignment or
conveyance, regardless of whether or not Beneficiary has consented
to, or waived by its action or inaction its rights hereunder with
respect to, any such previous further encumbrance, sale, transfer,
assignment or conveyance, and irrespective of whether such further
DBLA- 166100L.1
January 2, 1997
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encumbrance, sale, transfer, assignment or conveyance is voluntary,
by reason of operation of law or is otherwise made.
11. Notice. Any notice, request, demand, statement,
authorization, approval or consent made hereunder shall be in
writing and shall be sent in the manner specified in the Security
- Agreement.
12. Sale of Trust Property. If this Deed of Trust is
foreclosed, the Trust Property, or any interest therein, may, at
the discretion of Beneficiary, be sold in one or more parcels or in
several interests or portions and in any order or manner, at one
time or at different times.
13. Changes in Laws Regarding Taxation. In the event of
the passage after the date of this Deed of Trust of any law of the
State in which the Premises are located deducting from the value of
real property for the purpose of taxation any lien or encumbrance
thereon or changing in any way the laws for the taxation of deeds
of trusts or debts secured by deeds of trust for state or local
purposes or the manner of the collection of any such taxes, and
imposing a tax, either directly or indirectly, on this Deed of
Trust, the Note or the Obligations, Trustor shall, if permitted by
law, pay any tax imposed as a result of any such law within the
statutory period or within fifteen (15) days after demand by
Beneficiary, whichever is less, provided, however, that if, in the
opinion of the attorneys for Beneficiary, Trustor is not permitted
by law to pay such taxes, Beneficiary shall have the right, at its
option; to declare the Obligations due and payable on a date
specified in a prior notice to Trustor of not less than thirty (30)
days.
14. No Credits on Account of the Obligations. Trustor
will not claim or demand or be entitled to any credit or credits on
account of the Obligations for any part of the Taxes assessed
against the Trust Property or any part thereof and no deduction
shall otherwise be made or claimed from the taxable value of the
Trust Property, or any part thereof, by reason of this Deed of
Trust or the Obligations.
15. Documentary Stamps. If at any time the United
States of America, any state thereof, or any governmental
subdivision of any such state, shall require revenue or other
stamps to be affixed to the Note or this Deed of Trust, Trustor
will pay for the same, with interest and penalties thereon, if any.
15 A. The Ground Lease. Trustor shall pay all rents,
additional rents and other sums required to be paid by Trustor as
ground lessee under and pursuant to the provisions of the Ground
Lease, diligently perform and observe all of the terms, covenants
and•conditions of the Ground Lease on the part of Trustor, as
ground lessee thereunder, to be performed and observed, unless such
performance or observance shall be waived or not required in
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DBLA- 166100L.1
January 2, 1997
writing by the ground lessor under the Ground Lease, to the end
that all things shall be done which are necessary to keep
unimpaired the rights of Trustor, as ground lessee, under the
Ground Lease, and promptly notify Beneficiary of the giving of any
notice by the ground lessor under the Ground Lease to Trustor of
any default by Trustor in the performance or observance of any of
the terms, covenants or conditions of the Ground Lease on the part
of Trustor, as ground lessee thereunder, to be performed or
observed and deliver to Beneficiary a true copy of each such
notice. Trustor shall not, without the prior consent of
Beneficiary, surrender the leasehold estate created by the Ground
Lease or terminate or cancel the Ground Lease or modify, change,
supplement, alter or amend the Ground Lease, in any respect, either
orally or in writing, and Trustor hereby assigns to Beneficiary, as
further security for the payment of the Obligations and for the
performance and observance of the terms, covenants and conditions
of this Deed of Trust, all of the rights, privileges and
prerogatives of Trustor, as ground lessee under the Ground Lease,
to surrender the leasehold estate created by the Ground Lease or to
terminate, cancel, modify, change, supplement, alter or amend the
Ground Lease, and any such surrender of the leasehold estate
created by the Ground Lease or termination, cancellation,
modification, change, supplement, alteration or amendment of the
Ground Lease without the prior consent of Beneficiary shall be void
r and of no force and effect. If Trustor shall default in the
. b. performance or observance of any term, covenant or condition of the
il Ground Lease on the part of Trustor, as ground lessee thereunder,
0 to be performed or observed, then, without limiting the generality
of the other provisions of this Deed of Trust, and without waiving
M or releasing Trustor from any of its obligations hereunder,
CD Beneficiary shall have the right, but shall be under no obligation,
to pay any sums and to perform any act or take any action as may be
C'l appropriate to cause all of the terms, covenants and conditions of
the Ground Lease on the part of Trustor, as ground lessee
thereunder, to be performed or observed to be promptly performed or
observed on behalf of Trustor, to the end that the rights of
Trustor in, to and under the Ground Lease shall be kept unimpaired
and free from default. If Beneficiary shall make any payment or
perform any act or take action in accordance with the preceding
sentence, Beneficiary will notify Trustor of the making of any such
payment, the performance of any such act, or the taking of any such
acion. In any such event, subject to the rights of lessees and
other occupants under the Leases, Beneficiary and any person.
designated by Beneficiary shall have, and are hereby granted, the
right to enter upon the Trust Property at any time and from time to
time for the purpose of taking any such action. If the ground
lessor under the Ground Lease shall deliver to Beneficiary a copy
of any notice of default sent by said ground lessor to Trustor, as
ground lessee under the Ground Lease, such notice shall constitute
full protection to Beneficiary for any action taken or omitted to
be taken by Beneficiary, in good faith, in reliance ther?on.
Trustor shall, from time to time, obtain from the ground lessor
under the Ground Lease such certifigates of estoppel with respect
13
DBLA- 166100L.1
January 2, 1997
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.
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•
•
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applications and other documents received by Trustor in connection
with such petition or proceeding by ground lessor.
Trustor shall not surrender its leasehold estate and its
interest created under the Ground Lease, nor terminate or cancel
the Ground Lease. Any attempted surrender, termination or
cancellation by Trustor shall be null and void and of no force or
effect.
If there shall be filed by or against Trustor a petition
under the Bankruptcy Code, 11 U.S.C. Sections 101 et seq. (the
"Bankruptcy Code "), Trustor, as tenant under the Lease, or any
trustee appointed by the Bankruptcy Court in such proceedings,
shall immediately (but in no event more than one (1) day after the
filing of such petition) notify Beneficiary in writing of Trustor's
or the trustee's intent, as the case may be, to assume or reject
the Lease pursuant to Section 365(a) of the Bankruptcy Code. If
the intent of Trustor or such trustee is to reject the Ground Lease
or to take no action under such Section 365(a), and Trustor or
Trustee has received notification from Beneficiary that, if such is
the case, Beneficiary desires an assignment of the Ground Lease,
then:
(i) Trustor (or Beneficiary upon Trustor's
failure to do so promptly) shall file, prior to the expiration of
the period provided in Section 365(d)(4) of the Bankruptcy Code, a
motion with the Bankruptcy Court to assume and assign the Lease to
Beneficiary; and
(ii) Trustor shall bear the burden of
establishing with the Bankruptcy Court that Trustor can perform as
required by Sections 365(b) and (f) of the Bankruptcy Code.
If Trustor notifies Beneficiary of its intent to assume
the Lease, Trustor shall not seek to reject the Lease but shall
promptly (and in all events before the expiration of all applicable
time periods for such.assumption and assignment) obtain consent
from the Bankruptcy Court to assume and assign the Lease for the
purposes of this paragraph. Trustor agrees that Beneficiary may at
any time apply to the Bankruptcy Court for an extension of any time
period for the assumption of the Lease by Trustor and that the
protection of Beneficiary's security interest in the Lease shall be
deemed sufficient cause for such extension and Trustor shall not
oppose any application by Beneficiary for such extension. Trustor
agrees that, if for any reason the Lease is rejected pursuant to
the provisions of Section 365 of the Bankruptcy Code, Trustor will
not take the position that such rejection is a termination of the
Lease.
16. Performance of Other Agreements. Trustor shall
observe and perform each and every term to be observed or performed
by Trustor pursuant to the terms of any agreement or recorded
instrument affecting or pertaining t,o the Trust Property.
15
. ��
DBLA- 166100L.1
January 2, 1997
• •Y
1
17. events of Default. The Obligations shall become due
at the option of Beneficiary upon the occurrence of any one or more
of the following events (herein collectively referred to as Events
of Default) ;
(a) if an Event of Default, as defined in the
Security Agreement, shall occur;
(b) if Trustor shall fail to pay within fifteen
(15) days of notice and demand by Beneficiary, any installment of
any assessment against the Trust Property for local improvements
heretofore or hereafter laid, which assessment is or may become
payable in annual or periodic installments and is or may become a
lien on the Trust Property, notwithstanding the fact that such
installment may not be due and payable at the time of such notice
and demand;
(c) if without the consent of Beneficiary any
Leases are made, canceled or modified or if any portion of the
Rents is paid for a period of more than one (1) month in advance or
if any of the Rents are further assigned;
(c) (1) if Trustor shall default in the observance or
j performance of any term, covenant or condition of the Ground Lease
v4 on the part of Trustor, as ground lessee thereunder, to be observed
or performed, unless any such observance or performance shall have
id` been waived or not required in writing by the ground lessor under
.•4 the Ground Lease, or if any one or more of the events referred to
"4 in the Ground Lease shall occur which would or may cause the Ground
Lease to terminate without notice or action by the ground lessor
P� thereunder or which would entitle the ground lessor under the
`I Ground Lease to terminate the Ground Lease and the term thereof by
giving notice to Trustor, as ground lessee thereunder, or if the
leasehold estate created by the Ground Lease shall be surrendered,
in whole or in part, or if the Ground Lease shall be terminated or
canceled for any reason or under any circumstance whatsoever, or if
any of the terms, covenants or conditions of the Ground Lease shall
in any manner be modified, changed, supplemented, altered or
amended without the consent of Beneficiary;
(d) if Trustor or any other person shall be in
default under any deed of trust or mortgage covering any part of
the Trust Property whether superior or inferior in lien to this
Deed of Trust, and including, without limitation, any such deed of
trust or mortgage now or hereafter held by Beneficiary; or
(e) if the Trust Property shall become subject to
any tax lien, other than a lien for local real estate taxes and
assessments not due and payable, or to any lis pendens, notice of
pendency, stop order, notice of intention to file mechanic's or
materialman's lien, mechanic's or materialman's lien or other lien
of any nature whatsoever and the same shall not either be
discharged of record or in the alternative insured over to the
16 DBLA- 166100L.1
January 2, 1997
«..... .. ,..:.
.
satisfaction of Beneficiary by the title company insuring the lien
of this Deed of Trust within a period of thirty (30) days after the
same is filed or recorded, and irrespective of whether the same is
superior or subordinate in lien or other priority to the lien of
this Deed of Trust and irrespective of whether the same constitutes
a perfected or inchoate lien or encumbrance on the Trust Property
or is only a matter of record or notice; or
(f) if an Event of Default shall occur under any
deed of trust or mortgage, pledge agreement or other loan documents
now or hereafter entered into by Trustor or an affiliate of Trustor
in favor of Beneficiary.
18. Right to Cure Defaults. If default in the
performance of any of the covenants of Trustor herein occurs,
Beneficiary or Trustee may, at their discretion, remedy the same
and for such purpose shall have the right to enter upon the Trust
Property or any portion thereof without thereby becoming liable to
Trustor or any person in possession thereof holding under Trustor.
If Beneficiary or Trustee shall remedy such a default or appear in,
defend, or bring any action or proceeding to protect their interest
in the Trust Property or to foreclose this Deed of Trust or to sell
the Trust Property pursuant to the provisions of this Deed of Trust
or to collect the Obligations, the costs and expenses thereof
(including reasonable attorneys' fees to the extent permitted by
law), with interest as provided in this paragraph, shall be paid by
Trustor to Beneficiary upon demand and shall constitute part of the
Obligations secured by this Deed of Trust. All such costs and
expenses incurred by Beneficiary or Trustee in remedying such
default or in appearing in, defending, or bringing any such action
or proceeding shall be paid by Trustor to Beneficiary upon demand,
with interest accruing at the Default Rate, as defined in the
Security Agreement.
19. Appointment of Receiver. Beneficiary or Trustee, in
any action to foreclose this Deed of Trust or upon the actual or
threatened waste to any part of the Trust Property or upon the
occurrence of any default hereunder, shall be at liberty, without
notice, to apply for the appointment of a receiver of the Rents,
and shall be entitled to the appointment of such receiver as a
matter of right, without regard to the value of the Trust Property
as security for the Obligations, or the solvency or insolvency of
any person then liable for the payment of the Obligations.
20. Von- Waiver. The failure of Beneficiary or Trustee
to insist upon strict performance of any term of this Deed of Trust
shall not be deemed to be a waiver of any term of this Deed of
Trust. Trustor shall not be relieved of Trustor's obligation to
pay the Obligations at the time and in the manner provided for its
payment in the Note, the Security Agreement and this Deed of Trust
by reason of failure of Beneficiary or Trustee to comply with any
request of Trustor to take any action to foreclose this Deed of
Trust or sell the Trust Property pursuant to the provisions of this
17
DBLA- 166100L.1
January 2, 1997
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i
f
I
Deed of Trust or otherwise enforce any of the provisions hereof or
of the Note or any other deed of trust, mortgage, instrument or
document evidencing, securing or guaranteeing payment of the
Obligations or any portion thereof, the release, regardless of
consideration, of the whole or any part of the Trust Property or
any other security for the Obligations, or any agreement or
stipulation between Beneficiary or Trustee and any subsequent owner
or owners of the Trust Property or other person extending the time
of payment or otherwise modifying or supplementing the terms of the
Note, the Security Agreement, this Deed of Trust or any other deed
of trust, mortgage, instrument or document evidencing, securing or
guaranteeing payment of the Obligations or any portion thereof,
without first having obtained the consent of Trustor, and in the
latter event, Trustor shall continue to be obligated to pay the
Obligations at the time and in the manner provided in the Note, the
Security Agreement and this Deed of Trust, as so extended, modified
and supplemented, unless expressly released and discharged from
such obligation by Beneficiary in writing. Regardless of
consideration, and without the necessity for any notice to or
consent by the holder of any subordinate lien, encumbrance, right,
title or interest in or to the Trust Property, Beneficiary may
release any person at any time liable for the payment of the
Obligations or any portion thereof or any part of the security held
for the Obligations and may extend the time of payment or otherwise
modify the terms of the Note, the Security Agreement or this Deed
of Trust, including, without limitation, a modification of the
interest rate payable on the principal balance of the Note, without
in any manner impairing or affecting this Deed of Trust or the lien
thereof or the priority of this Deed of Trust, as so extended and
modified, as security for the Obligations over any such subordinate
lien, encumbrance, right, title or interest. Beneficiary may
resort for the payment of the Obligations to any other security
held by Beneficiary in such order and manner as Beneficiary, in its
discretion, may elect. Beneficiary or Trustee may take action to
recover the Obligations, or any portion thereof, or to enforce any
covenant hereof without prejudice to the right of Beneficiary or
Trustee thereafter to foreclose this Deed of Trust or to effect a
sale of the Trust Property in accordance with the provisions of
this Deed of Trust. Beneficiary and Trustee shall not be limited
exclusively to the rights and remedies herein stated but shall be
entitled to every additional right and remedy now or hereafter
afforded by law. The rights of Beneficiary and Trustee under this
Deed of Trust shall be separate, distinct and cumulative and none
shall be given effect to the exclusion of the others. No act of
Beneficiary or Trustee shall be construed as an election to proceed
under any one provision herein to the exclusion of any other
provision.
21. Power of Sale. If an Event of Default occurs and
Beneficiary so requests, Trustee shall sell the Trust Property in
accordance with the Deed of Trust Act of the State of Washington
(R.C.W. Chapter 61.24 as existing now or hereafter amended) at
public auction to the highest bidder. Any person except Trustee
.
18 DBLA- 166100L.1
January 2, 1997
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may bid at Trustee's sale. Trustee shall apply the proceeds of the
sale as follows: (i) to the expenses of sale, including Trustee's
fee and attorneys' fee; (ii) to all the indebtedness evidenced by
the Note and all other indebtedness secured by this Deed of Trust;
(iii) the surplus, if any, shall be distributed in accordance with
the Deed of Trust Act. Trustee shall deliver to the purchaser at
the sale its deed, without warranty, which shall convey to the
purchaser the interest in the Trust Property which Trustor had or
had the power to convey at the time of its execution of this Deed
of Trust and such as it may have acquired thereafter. Trustee's
deed shall recite the facts showing that the sale was conducted in
compliance with all the requirements of the law and of this Deed of
Trust, which recital shall be prima facie evidence of such
compliance and conclusive evidence thereof in favor of bona fide
purchasers and encumbrancers for value. The power of sale
conferred by this Deed of Trust and by the Deed of Trust Act of the
State of Washington is not an exclusive remedy, and when not
exercised Beneficiary may foreclose this Deed of Trust as a
mortgage. .
Secured Party shall have the right to proceed as to the
Equipment in accordance with Beneficiary's rights and remedies in
respect to real property or sell the Equipment separately and
without regard to the remainder of the Trust Property in accordance
with Beneficiary's rights and remedies provided by the Washington
Uniform Commercial Code as well as other rights and remedies
available at law or in equity.
v
c Upon the occurrence of an Event of Default, Beneficiary
is authorized, either by itself or its agent to be appointed y by g ppointed by
'd' it for that purpose or by a receiver appointed by a court of
,4 competent jurisdiction, to enter into and upon and take and hold
4 possession of any portion or all of the Trust Property, both real
CD and personal, and exclude Trustor and all other persons therefrom;
i%. to operate and manage the Trust Property and rent and lease the
0) same; to perform such reasonable acts of repair or protection as
may be reasonably necessary or proper to conserve the value
thereof; and collect any rents for the benefit and protection of
Beneficiary, and from time to time apply or accumulate such rents
in such order and manner as Beneficiary or such receiver, in its
sole discretion, shall consider advisable, to or upon the
following: the expenses of receivership, if any; the proper costs
of upkeep, maintenance, repair and /or operation of the Trust
Property; the repayment of any sums theretofore or thereafter
advanced pursuant to the terms of this Deed of Trust, the interest
then due or next to become due upon the indebtedness secured
hereby, and the taxes and assessments upon the Trust Property then
due or next to become due, or upon the unpaid principal of such
indebtedness. The collection or receipt of rents by Beneficiary,
its agent or receiver, after notice of default and notice of sale
shall not affect or impair such default or notices or any sale
proceedings predicated thereon. Any rents in the possession of
Beneficiary, its agent or receiver, : at the time of sale and not
19
DBLA- 166100L.1
January 2, 1997
.3
.4
.;
.:
theretofore applied as herein provided, shall be applied in the
same manner and for the same purposes as the proceeds of the sale.
Neither Trustee nor Beneficiary shall be under any
obligation to make any of the payments or do any of the acts
referred to in this paragraph 21, and any of the actions referred
to in this paragraph 21 may be taken by Beneficiary regardless of
whether any notice of default or notice of sale has been given
hereunder and without regard to the adequacy of the security for
the indebtedness evidenced by the Note.
Secured Party shall have the right, at its option, to
foreclose this Deed of Trust subject to the rights of any tenants
of the Trust Property, and the failure to make any tenants a party
defendant to any foreclosure proceeding will not be asserted by
Trustor as a defense in any action or suit instituted to collect
the indebtedness secured hereby or any deficiency remaining after
foreclosure. Any such tenant whom Beneficiary elects to not make
a party or subject to any foreclosure action shall continue in
possession of its leasehold for the unexpired term of its lease and
shall attorn to Beneficiary or other purchaser at the sale.
22. Concerning the Trustee. Trustee shall be under no
duty to take any action hereunder except as expressly required
hereunder or by law, or to perform any act which would involve
Trustee in any expense or liability or to institute or defend any
suit in respect hereof, unless properly indemnified to Trustee's
reasonable satisfaction. Trustee, by acceptance of this Deed of
Trust, covenants to perform and fulfill the trusts herein created,
being liable, however, only for willful negligence or misconduct,
and hereby waives any statutory fee and agrees to accept reasonable
compensation, in lieu thereof, for any services rendered by Trustee
in accordance with the terms hereof. Trustee may resign at any
time upon giving thirty (30) days' notice to Trustor and to
Beneficiary. Beneficiary may in its sole and absolute discretion
and with or without cause remove Trustee at any time or from time
to time and select a successor trustee. In the event of the death,
removal, resignation, refusal to act, or inability to act of
Trustee, or in its sole and absolute discretion for any reason
whatsoever Beneficiary may, without notice and without specifying
any reason therefor and without applying to any court, select and
appoint a successor trustee, by an instrument recorded wherever
this Deed of Trust is recorded and all powers, rights, duties and
authority of Trustee, as aforesaid, shall thereupon become vested
in such successor. Such substitute trustee shall not be required
to give bond for the faithful performance of the duties of Trustee
hereunder unless required to do so by Beneficiary.
23. Trustee's Fees. Trustor shall pay all costs, fees
and expenses incurred by Trustee and Trustee's agents and counsel
in connection with the performance by Trustee of Trustee's duties
hereunder and all such costs, fees and expenses shall be secured by
this Deed of Trust.
20 DBLA- 166100L.1
January 2, 1997
..!"?; '^r1' • '7 .7.. 113
•
41
24. Construction. The terms of this Deed of Trust shall
be construed in accordance with the laws of the State in which the
Premises are located.
25. Further Acts. etc. Trustor will, at the cost of
Trustor, and without expense to Beneficiary or Trustee, do,
- execute, acknowledge and deliver all and every such further acts,
deeds, conveyances, deeds of trust, mortgages, assignments, notices
of assignments, transfers and assurances as Beneficiary or Trustee
shall, from time to time, require for the better assuring,
conveying, assigning, transferring and confirming unto Beneficiary
or Trustee, as the case may be, the property and rights hereby
conveyed or assigned or intended now or hereafter so to be, or
which Trustor may be or may hereafter become bound to convey or
assign to Beneficiary or Trustee, or for carrying out the intention
or facilitating the performance of the terms of this Deed of Trust
or for filing, registering or recording this Deed of Trust and, on
demand, will execute and deliver and hereby authorizes Beneficiary
or Trustee to execute in the name of Trustor to the extent
Beneficiary and Trustee may lawfully do so, one or more financing
statements, chattel. mortgages or comparable security instruments,
to evidence more effectively the lien hereof upon the Trust
Property.
26. Ifeadings. etc., The headings, titles and captions of
various paragraphs of this Deed of Trust are for convenience of
reference only and are not to be construed as defining or limiting,
in any way, the scope or intent of the provisions hereof.
27. Filing of Deed of Trust, etc. Trustor forthwith
upon the execution and delivery of this Deed of Trust and
thereafter, from time to time, will cause this Deed of Trust, and
any security instrument creating a lien or evidencing the lien
hereof upon the Trust Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in
such places as may be required by any present or future law in
order to publish notice of and fully to protect, preserve and
perfect the lien hereof upon, and the interest of Beneficiary and
Trustee in, the Trust Property. Trustor will pay all filing,
registration and recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Deed of Trust,
any deed of trust or mortgage supplemental hereto, any security
instrument with respect to the Trust Property, and any instrument
of further assurance, and all Federal, state, county and municipal
taxes, duties, imposts, assessments and charges arising out of or
in connection. with the execution and delivery of this Deed of
Trust, any deed of trust or any mortgage supplemental hereto, any
security instrument with respect to the Trust Property or any
instrument of further assurance. Trustor shall hold harmless and
indemnify Beneficiary, its successors and assigns, against any
liability incurred by reason of the imposition of any tax on the
making and recording of this Deed of Trust.
21
DBLA- 166100L.1
January 2, 1997
aSIZIP3.1; • ?1a ::-u -^►: :".1%+7.13:411%." } :was:...... ..
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28. Sole Discretion of Beneficiary or Trustee. Except
as may otherwise be expressly provided to the contrary, wherever
pursuant to the Note, this Deed of Trust, or any other document or
instrument now or hereafter executed and delivered in connection
therewith or otherwise with respect to the loan secured hereby,
Beneficiary or Trustee exercises any right given to Beneficiary or
Trustee to consent or not consent, or to approve or disapprove, or
any arrangement or term is to be satisfactory to Beneficiary or
Trustee, the decision of Beneficiary or Trustee to consent or not
consent, or to approve or disapprove or to decide that arrangements
or terms are satisfactory or not satisfactory, shall be in the sole
and absolute discretion of Beneficiary or Trustee and shall be
final and conclusive.
29. Duplicate Originals. This Deed of Trust may be
executed in any number of duplicate originals and each such
duplicate original shall be deemed to constitute but one and the
same instrument.
30. Certain Definitions. Unless the context clearly
indicates a contrary intent or unless otherwise specifically
provided herein, words used in this Deed of Trust shall be used
interchangeably in singular or plural form and the word " Trustor"
shall mean each Trustor and any subsequent owner or owners of the
Trust, Property or any part thereof or interest therein; the word
"Beneficiary" shall mean Beneficiary or any subsequent holder of
the Note; the word "Note" shall mean the Secured Promissory Note or
any other evidence of indebtedness secured by this Deed of Trust;
the words "Security Agreement" shall mean the Pledge and Security
Agreement; the word "Guarantor" shall mean each person guaranteeing
payment of the Obligations or any portion thereof or performance by
Trustor of any of the terms of this Deed of Trust and their
respective heirs, executors, administrators, legal representatives,
successors and assigns; the word "person" shall include an
individual, corporation, partnership, trust, unincorporated
association, government,. governmental authority, or other entity;
the words "Trust Property" shall include any portion of the Trust
Property or interest therein; the word "Obligations" shall mean all
sums secured by this Deed of Trust; and the word "default" shall
mean the occurrence of any default by Trustor or other person in
the observance or performance of any of the terms, covenants or
provisions of the Note, the Security Agreement or this Deed of
Trust on the part of Trustor or such other person to be observed or
performed without regard to whether such default constitutes or
would constitute upon notice or lapse of time, or both, an Event of
Default under this Deed of Trust. Whenever the context may
require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural and vice versa.
31. Waiver of Notice. Trustor shall not be entitled to
any notices of any nature whatsoever from Beneficiary or Trustee
except with respect to matters for which this Deed of Trust
22
DBLA- 166100L.1
January 2, 1997
specifically and expressly provides for the giving of notice by
Beneficiary or Trustee to Trustor, and Trustor hereby expressly
waives the right to receive any notice from Beneficiary or Trustee
with respect to any matter for which this Deed of Trust does not
specifically and expressly provide for the giving of notice by
Beneficiary or Trustee to Trustor.
: �
32. Waiver of Statutory Rights: Trustor shall not and
installment of principal or interest or any other sum due under any
deed of trust or other lien superior in lien to the lien of this
Deed of Trust, as the same becomes due and payable, Beneficiary
may, at its option, pay the same, and Trustor shall upon demand
reimburse Beneficiary for all sums so expended by Beneficiary, with
interest at a rate per annum equal to the Default Rate. All such
sums expended by Beneficiary, with interest, shall be secured by
this Deed of Trust.
35. Nonagricultural Use. The Trust Property is not used
principally or primarily for agricultural or farming purposes.
36. Plats, Easements and Other Agreements. At any time
upon written request of Beneficiary, payment of its fees and
presentation of this Deed of Trust and the Note for endorsement (in
case of full reconveyance, for cancellation and retention), without
'affecting the liability of any person for the payment of the
indebtedness or the effect of this Deed of Trust upon this
remainder of the Trust Property,. Trustee may (i) consent to the
23
DBLA- 166100L.1
January 2, 1997
fTw4717::'rs' 'OrK r.: �•{: ..•w -rn :: :.. • •,.lama•'•
•
making of any map or plat of the Trust Property; (ii) join in
granting any easement or creating any restriction thereon (iii)
join in any subordination or other agreement affecting this Deed of
Trust or the lien or charge thereof; or (iv) reconvey, without
warranty, all or any part of the Trust Property. The grantee in
any reconveyance maybe described as the "person or persons legally
entitled thereto ", and the recitals therein of any matters or facts
shall be conclusive proof of the truthfulness thereof. Trustor
agrees to pay Trustee's fee for full or partial reconveyance,
together with a recording fee, if Trustee, at its option, elects to
record said reconveyance.
37. Reconveyance After Payment. Upon Beneficiary's
written request stating that all sums secured hereby have been
paid, and upon surrender of this Deed of Trust to Trustee for
cancellation and retention and upon payment of its fees, Trustee
shall reconvey the Trust Property to Trustor without warranty. The
recitals in any reconveyance executed under this Deed of Trust of
any matters or facts shall be conclusive proof of the truthfulness
thereof. The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto
38. Security Agreement. This Deed of Trust creates a
lien on the Trust Property, and to the extent the Trust Property is
not real property under applicable law this Deed of Trust
constitutes a security agreement under the Washington Uniform
Commercial Code and any other applicable law. If required by
Beneficiary, at any time during the term of this Deed of Trust,
Trustor will execute and deliver to Beneficiary, in form
satisfactory to Beneficiary, additional security agreements,
financing statements or other instruments covering all Equipment or
fixtures of Trustor which may at any time be furnished, placed on,
or annexed or made appurtenant to the Premises or used, useful or
held for use in the operation of the Improvements. Trustor further
agrees that:
(i) The obligations covered by this Security Agreement
include future advances in all forms;
(ii) Secured Party may: commingle any personal
property that comes into its possession; repledge such personal
property upon terms that impair Trustor's right to redeem such; and
require Trustor to assemble the personal property and make it
available to Beneficiary at a place to be designated by Beneficiary
which is reasonably convenient to both parties. To the extent
Beneficiary is required for any reason to provide commercially
reasonable notice to Trustor, Trustor agrees that notice mailed by
first class mail ten (10) days before the event of which notice is
given, is commercially reasonable notice;
(iii) The standard by which Beneficiary's rights and
duties under Article 9 of RCW ch. 62.A, including but not limited
24 DBLA- 166100L.1
January 2, 1997
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•
to Part 5 thereof, shall be measured is gross negligence or willful
misconduct;
(iv) Trustor shall notify Beneficiary in writing within
thirty (30) days of any change in name of Trustor or its corporate
structure. Nothing herein shall be construed as a consent by
Beneficiary to a change in corporate structure otherwise prohibited
hereby.
If Trustor fails to execute any documents submitted by
Beneficiary pursuant to this paragraph 39 within ten (10) days
after such submission, then Trustor hereby irrevocably constitutes
and appoints Beneficiary the attorney -in -fact of Trustor, to
execute deliver and file with the appropriate filing officer or
office such security. agreements, financing statements or other
instruments as Beneficiary may request or require in order to
impose and perfect the lien and security interest hereof more
specifically on the Equipment or any fixture.
If Trustor enters into a separate security agreement
with Beneficiary relating to any of the Equipment or fixtures, the
terms of such security agreement shall govern the rights and
remedies of Beneficiary in the event of default thereunder. Any
breach of or default under any such security agreement shall
constitute an event of default under this Deed of Trust.
It is understood and agreed that, in order to protect
Beneficiary from the effect of RCW 62A.9 -313, as amended from time
to time, in the event that (a) Trustor intends to purchase any
goods.that may become fixtures attached to the Premises, or any
part thereof, and (b) such goods will be subject to a purchase
money security interest held by a seller or any other party:
(1) Franchisee shall, before executing any security
agreement or other document evidencing such security interest,
obtain the prior written approval of Beneficiary, and all requests
for such written approval shall be in writing and contain the
following information:
(A) a description of the fixtures to be replaced,
added to, installed or substituted;
(B) the address at which the fixtures will be
replaced, added to, installed or substituted; and
(C) the name and address of the proposed holder and
proposed amount of the security interest, and any failure of
Trustor to obtain such approval shall be a material breach of
Trustor's covenant under this Deed of Trust, and shall, at the
option of Beneficiary, entitle Beneficiary to all rights and
remedies provided for herein upon default. No consent by
Beneficiary pursuant to this paragraph shall be deemed to
25
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DBLA- 166100L.1
January 2, 1997
3
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constitute an agreement to subordinate the right of the Beneficiary
in fixtures or other property covered by this Deed of Trust.
(2) If at any time Trustor fails to make any payment on
an obligation secured by a purchase money security interest in the
Equipment or any fixtures, Beneficiary, at its option, may at any
time pay the amount secured by such security interest and the
amount so paid shall be (A) secured by this Deed of Trust and shall
be a lien on the Trust Property having the same priorities as the
liens and security interests created by this Deed of Trust, and (B)
payable on demand with interest at the rate specified in the Note
from the time of such payment. If Trustor shall fail to make such
payment to Beneficiary within ten (10) days after demand, the
entire principal sum secured hereby with all unpaid interest
accrued thereon shall, at the option of Beneficiary, become due and
payable immediately.
(3) Secured Party shall have the right to acquire by
assignment from the holder of such security interest any and all
contract rights, accounts receivable, negotiable or non - negotiable
instruments, or other evidence of Trustor's indebtedness for such
Equipment or fixtures, and, upon acquiring such interest by
assignment, shall have the right to enforce the security interest
as assignee thereof, in accordance with the terms and provisions of
the Washington Uniform Commercial Code then in effect, and in
accordance with any other provisions of law.
(4) Whether or not Beneficiary has paid the indebtedness
secured by or taken an assignment of such security interest,
Trustor covenants to pay all sums and perform all obligations
secured thereby, and if Trustor at any time shall be in default for
a period of ten (10) days under such security agreement, it shall
be a material breach of Trustor's covenants under this Deed of
Trust, and Beneficiary may, at its option, declare the principal
sum secured hereby immediately due and payable, time being of the
essence.
(5) To the extent that any of the Trust Property
constitutes a fixture, this Deed of Trust shall serve as a fixture
filing pursuant to the Washington Uniform Commercial Code.
39. Business Purpose. Trustor represents and warrants
to Beneficiary that the transactions evidenced by the Note, the •
Security Agreement and this Deed of Trust are solely for
commercial, investment or business purposes and are not for
personal, family or household purposes.
40. Solvency, Binding Effect and Enforceability. The
Trustor is (and, after the giving of this Deed of Trust, will be)
solvent. This Deed of Trust is the legal, valid and binding
obligation of the Trustor enforceable in accordance with its terms.
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DBLA- 166100L.1
January 2, 1997
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41. Trustee Acceptance. Trustee accepts this trust when
this Deed of Trust, duly executed and acknowledged, is made a
public record as provided by law.
42. Attorney's Fees. Trustor shall be responsible for
the payment of any and all attorney's fees incurred in any and all
claims, actions, proceedings, arbitrations, bankruptcy proceedings
and suits arising out of or in connection with the enforcement of
Beneficiary's rights under this Deed of Trust and any other Loan
Documents, to the extent Beneficiary is the prevailing party in
such claim, action, proceeding or suit.
IN WITNESS WHEREOF, Trustor has duly executed this Deed
of Trust the day and year first above written.
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BIG FOOT RESTAURANTS, INC.,
a Washington /gorporation
By:
Name:
Title:
�ot ,r� e.; ✓�
DBLA- 166100L.1
December 5, 1996
;
IN WITNESS WHEREOF I h Areunt• s-t my hand and
official seal the day and year f rst above w •4.,i11 . y
a
}
._
STATE OF WASHINGTON)
ss.
COUNTY OF Kr q
On this ._._( day of Y , 1996, before
me, the undersigned, a Notary Public in and for the State of
Was.ix gt n duly and sworn, personally appeared
�� h( r ' be the person who signed
as �/ of ile Ag yi6 the corporation that
executed the within and fore4oing instrut, and acknowledged said
instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on
oath stated that 11C was duly elected,
qualified and acting as said officer of the corporation, that
At was authorized to execute said instrument and
that the seal affixed, if any, is the corporate seal of said
corporation.
OT Y PUB IC in
fate of
M
Expires: 105 e t
T srElae P. Lukens
28
and for the
residing at
Appointment
DBLA- 166100L.1
December 5, 1996
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EXHIBIT A
(Description of Premises)
The land referred to in this commitment is located in the County
of King, State of Washington, and described as follows:
_ Those portions of Lots 5, 6, 27, 28 and 29 of Block 4, First
Addition to Adam's Home Tracts, according to the plat recorded in
volume 12 of Plats, page 50, records of King County, Washington,
described as follows:
Beginning on the easterly margin of State Highway No. 1 (Pacific
Highway South), 23.75 feet northeasterly from its intersection
with the south line of said Lot 5; thence south 82 degrees 09'25"
east, 217.66 feet to the southeast corner of said Lot 6; thence
south 1 degree 05'28" west, along the easterly line of said Lot
27, 162.36 feet; thence north 82 degrees 09'25" west, 271.80 feet
to said easterly margin; thence north 20 degrees 06'38" east,
along said easterly margin, 165.00 feet to the point of
beginning.
Together with an easement for access and utilities across the
west 30 feet of the east 90 feet of that portion of said lot 27.
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DBLA- 166100L.1
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Exhibit A -1
(Description of Ground Lease)
That certain Building Lease dated March 21, 1978, by and
between Pasquale Verdi, Frank Desimone, Jr. and Louis Desimone,
individuals, as Lessor, and Big Foot Restaurants, Inc., a
_ Washington corporation, as Lessee, as amended by an agreement
entitled "Guaranty of Lease -- Big Foot Restaurants, Inc.," dated
March 21, 1978.
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DBLA- 166100L.1
January 2, 1997
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