1 0199304.01
Recording Requested By,
And After Recording,
Return To:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Team 1
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FIRST MODIFICATION OF DEED OF TRUST AND
ASSIGNMENT OF RENTS AND LEASES
This First Modification of Deed of Trust (this
"Modification") is entered into as of February 17, 1999, by and
between Xxxxx's Restaurants, Inc., an Oregon corporation
("Grantor"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Beneficiary").
RECITALS
This Modification is entered into upon the basis of the
following facts and understandings of the parties:
A. This Modification pertains to that certain Deed of
Trust and Assignment of Rents and Leases dated as of March 23,
1998, executed by Xxxxxxx to Xxxxx Fargo Bank (Arizona), National
Association, as Trustee, in favor of Beneficiary, and recorded on
March 31, 1998, as Instrument No. 98029150, of the Official
Records of Ada County, Idaho ("Deed of Trust").
B. The Deed of Trust cites an erroneous maturity date, and
Grantor and Beneficiary have agreed to modify the Deed of Trust
to accurately reflect the maturity date of the secured
obligation.
NOW, THEREFORE, the parties hereto agree as follows:
The following provisions shall be deemed added to the Deed
of Trust or to change the applicable paragraph thereof as
follows:
1. Section 2.10(a) of the Deed of Trust is hereby modified to
reflect the correct date of the Note as March 30, 1998 and the
correct maturity date of the Note as February 15, 2008.
2. Delete the word "immediately" in the first sentence of
Paragraph 4.04 and replace it with the following:
"within thirty (30) days of the filing thereof"
3. Add the following to the end of the last sentence of
Paragraph 4.04:
" except such (a) as Grantor may in good faith contest
or as to which a bona fide dispute may arise, and (b) for which
Grantor has made provision, to Bank's reasonable satisfaction,
for eventual payment thereof in the event Grantor is obligated to
make such payment. Upon the failure of Grantor to do so, or at
any time following and during the continuation of any Default,
Beneficiary at its option may pay any of them and shall be the
sole judge of the legality or validity thereof and the amount
necessary to discharge the same."
4. Add the word "reasonably" to the first sentence of Paragraph
4.05 between the words "from time to time..." and "... require"
and to the second sentence of Paragraph 4.05 between the words
"form and substance..." and "... satisfactory".
5. Delete Paragraphs 4.06 and 4.07 and replace them with the
following:
" 4.06 Tax and Insurance Impounds. Following the
occurrence of any Default, at Beneficiary's option and upon its
demand, Grantor shall, until all Secured Obligations have been
paid in full, pay to Beneficiary monthly, annually or as
otherwise directed by Beneficiary an amount estimated by
Beneficiary to be equal to: (a) all taxes, assessments, levies
and charges imposed by any public or quasi-public authority or
utility company which are or may become a lien upon the Subject
Property and will become due for the tax year during which such
payment is so directed; and (b) premiums for fire, other hazard
and mortgage insurance next due. If Beneficiary determines that
amounts paid by Grantor are insufficient for the payment in full
of such taxes, assessments, levies and/or insurance premiums,
Beneficiary shall notify Grantor of the increased amount required
for the payment thereof when due, and Grantor shall pay to
Beneficiary such additional amount within thirty (30) days after
notice from Beneficiary. All amounts so paid shall not bear
interest, except to the extent and in the amount required by law.
So long as any Default exists, Beneficiary at its sole option may
apply all or any part of said amounts to any Secured Obligation
and/or to cure such Default, in which event Grantor shall be
required to restore all amounts so applied, as well as to cure
any Default not cured by such application. Once any and all
Defaults are cured, Beneficiary shall apply said amounts to the
payment of, or at Beneficiary's sole option release said funds to
Grantor for application to and payment of, such taxes,
assessments, levies, charges and insurance premiums. Grantor
hereby grants and transfers to Beneficiary a security interest in
all amounts so paid and held in Beneficiary's possession, and all
proceeds thereof, to secure the payment and performance of each
Secured Obligation. Upon assignment of this Deed of Trust,
Beneficiary shall have the right to assign all amounts collected
and in its possession to its assignee, whereupon Beneficiary and
Trustee shall be released from all liability with respect
thereto. The existence of said impounds shall not limit
Beneficiary's rights under any other provision of this Deed of
Trust or any other agreement, statute or rule of law. Within
ninety-five (95) days following full repayment of all Secured
Obligations (other than as a consequence of a foreclosure or
conveyance in lieu of foreclosure of the liens and security
interests securing any Secured Obligation), or at such earlier
time as Beneficiary in its discretion may elect, the balance of
all amounts collected and in Beneficiary's possession shall be
paid to Grantor, and no other party shall have any right of claim
thereto.
4.07 Damages; Insurance and Condemnation Proceeds.
(a) (i) All awards of damages and all other compensation
payable directly or indirectly by reason of a condemnation or
proposed condemnation (or transfer in lieu thereof) for public or
private use affecting the Subject Property; (ii) all other claims
and awards for damages to or decrease in value of the Subject
Property; (iii) all proceeds of any insurance policies payable by
reason of loss sustained to the Subject Property; and (iv) all
interest which may accrue on any of the foregoing, are all
absolutely and irrevocably assigned to and shall be paid to
Beneficiary. If the amount of the awards or proceeds is less
than $500,000.00, and repair or restoration of the Subject
Property is economically feasible, in the reasonable judgment of
Beneficiary, the net amount of such award or proceeds shall be
applied to repair or restoration, and if repair or restoration is
not economically feasible, then, at the absolute discretion of
Beneficiary, whether or not its security is or may be impaired,
but subject to applicable law if any, and without regard to any
requirement contained in any other Section hereof, Beneficiary
may apply all or any of the proceeds it receives to its expenses
in settling, prosecuting or defending any such claim and apply
the balance to the Secured Obligations in any order, and release
all or any part of the proceeds to Grantor upon any conditions
Beneficiary may impose. Beneficiary may commence, appear in,
defend or prosecute any assigned claim or action, and may adjust,
compromise, settle and collect all claims and awards assigned to
Beneficiary; provided however, that in no event shall Beneficiary
be responsible for any failure to collect any claim or award,
regardless of the cause of the failure. Beneficiary may
commence, appear in, defend or prosecute any assigned claim or
action, and may adjust, compromise, settle and collect all claims
and awards assigned to Beneficiary; provided however, that in no
event shall Beneficiary be responsible for any failure to collect
any claim or award, regardless of the cause of the failure.
(b) If such insurance or condemnation proceeds held by
Beneficiary are to be used by Grantor for repair or restoration,
Beneficiary may impose any conditions on such use as Beneficiary
reasonably deems necessary."
6. Add the words "to the best of Xxxxxxx's knowledge," to the
first sentence of Section 4.09(a) between the words "hereof,..."
and "... the Subject Property is" and to Section 4.09(c) between
the words "or..." and "...threatened".
7. Add the word "reasonable" to the first sentence of Section
4.09(d) between the words "without limitation,..." and "...
attorneys' fees" and the words "reasonably incurred" to the first
sentence of Section 4.12(a) between the words "expenses..." and
"... in the administration of".
8. Add to the end of the first sentence of Section 4.12(b):
"(except to the extent attributable to Bank's gross
negligence or intentional misconduct)"
9. Delete the words "including, without limitation, where
applicable," from the first sentence of Section 4.14 and replace
them with the word "excluding".
10. Add the following to the end of Section 5.01(a) and to
Section 5.01(c) immediately after the word "obligation..." and
immediately preceding the words "..., or any defined event of
default":
"(after the expiration of any applicable notice or cure
periods)"
The real property and the whole thereof described in the
Deed of Trust shall remain subject to the lien, charge or
encumbrance of the Deed of Trust and nothing herein contained or
done pursuant hereto shall affect or be construed to affect the
liens, charges or encumbrances of the Deed of Trust, or the
priority thereof over other liens, charges or encumbrances, or to
release or affect the liability of any party or parties who may
now or hereafter be liable under or on account of said promissory
notes and/or the Deed of Trust.
All terms and conditions of the Deed of Trust not expressly
modified herein remain in full force and effect, without waiver
or amendment. This Modification and the Deed of Trust shall be
read together, as one document.
IN WITNESS WHEREOF, the parties hereto have caused this
Modification to be executed as of the day and year first above
written.
BENEFICIARY: GRANTOR:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
ELMER'S RESTAURANTS, INC., an
Oregon corporation
By: __/s/Xxxxx Xxx__________ By: __/s/Xxxxx X. Xxxxx________
Xxxxx Xxx
Vice President Title: President
OBTAIN NOTARY ACKNOWLEDGMENTS
