EXHIBIT (c)(5)
This Is A Credit Line Deed Of Trust
This Credit Line Deed of Trust, made and entered into this 14th day of June,
1996, by and among XXXXXXXX'X FOODS, INC., a Virginia corporation (herein,
whether one or more, referred to as "Grantor"), XXXXX X. XXXXXX, and XXXXX
XXXXXXXXX, who reside in the City of Virginia Beach, and the City of Virginia
Beach, Virginia, respectively (either of whom may act and who are referred to
herein as "Trustee"); and Crestar Bank (herein "Lender"), provides: The name of
the noteholder secured hereby is Crestar Bank. Communications to the noteholder
pursuant to Va. Code 55-58.2 are to be mailed or delivered to 000 Xxxx Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxx. The maximum aggregate
amount of principal to be secured hereby at any one time is Three Million
Twenty-Five Thousand Dollars ($3,025,000).
For and in consideration of the indebtedness herein recited and the trust
herein created, Grantor hereby grants, bargains, mortgages, assigns, sells and
conveys unto Trustee, in trust, with power of sale and with general warranty of
title, all of Grantor's present and future right, title and interest in and to
certain real estate located in the City of Portsmouth, Virginia, and more
particularly described as follows:
SEE EXHIBIT A ATTACHED
which has the address of 2410 and 0000 Xxxxxx Xxxxxx, and 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, together with all easement and appurtenances
thereto, all of the rights of Grantor in and to the streets, alleys, and
rights-of-way appurtenant to and adjoining or adjacent to the land hereinabove
described; and together with any and all right, title and interest of Grantor in
and to the improvements, which shall include any and all buildings and
structures now or at any time hereafter erected, constructed or situated upon
said land or any part thereof, together with all fixtures, machinery, apparatus,
fittings and equipment now or hereafter located in or upon the premises and now
owned or which may hereafter be owned by Grantor, in and upon said land and
premises, or which may hereafter be placed thereon, including, but not limited
to, any equity which may be acquired by Grantor in such property and as a result
of the making of instalment payments on account of the purchase thereof,
including but not limited to elevators, escalators, boilers, engines, heating,
ventilating and air conditioning systems, sprinkler or fire extinguishing
systems, plumbing, partitions, wiring, storm doors and windows, wire screens,
awnings, carpeting, drapes, window shades, switchboards, communications
apparatus, floor tiling, linoleum, attached cabinets, wall panels and
decorations
attached to walls and ceilings, gas and electrical fixtures, chattels, attached
appliances, and material used and to be used in the buildings and structures.
Reference in this Deed of Trust to "Property" shall be deemed to include, in
addition to the described land, improvements now or hereafter located thereon
and rights appurtenant thereto, all the equipment, furnishings, fixtures, goods
and chattels, above-mentioned and conveyed, all of which are deemed part and
parcel of the real estate and appropriated to the use of the real estate and,
whether affixed or not, shall for the purposes of this Deed of Trust be deemed
conclusively to be real estate and conveyed hereby, together with the proceeds
of all the foregoing. In Trust (a) to secure the prompt payment of Secured
Indebtedness (as hereinafter defined), payable to Lender at the address set out
above; and (b) to secure performance and observance of the terms and conditions
of this Deed of Trust, any Note (as hereinafter defined) or any Agreement (as
hereinafter defined). Lender has extended credit, or may in the future extend
credit to Grantor (herein, whether one or more, "Debtor", and which as used
herein shall include any one or more and any combination of the parties
constituting Debtor). The term "Secured Indebtedness" as used herein shall mean
all indebtedness of Debtor to Lender, whether now existing or hereinafter
arising, direct or indirect, fixed or contingent, due or to become due, joint or
several, for whatever purpose whether or not related to the Notes or Agreements,
as defined below, irrespective of how such indebtedness is evidenced, whether by
notes, bonds, letters of credit, advances, overdrafts, accounting entries or
otherwise, or by the endorsement or guaranty by Debtor of the obligations of
another; provided, however, that the aggregate outstanding principal amount of
the Secured Indebtedness secured by this Deed of Trust shall not at any one time
exceed the maximum aggregate amount of principal stated above, plus interest
thereon (at the rate or rates set forth in the Noted or Agreements or other
evidences of such indebtedness), fees due with respect to any such indebtedness,
and, to the extent permitted by applicable law, all costs of collection with
respect thereto, including without limitation, any costs and expenses incurred
by Trustee or Lender in connection with the enforcement of this Deed of Trust or
as otherwise provided herein. Secured indebtedness shall include, but not be
limited to, the principal of, interest on and all other amounts due under or in
connection with the note from Grantor to the Lender dated June 14, 1996, in the
amount of $1,750,000, the note from Grantor to the Lender dated June 14, 1996,
in the amount of $7,500,000, and any modifications, extensions or renewals of
such notes, agreements or loans.
As used herein the term "Note" shall mean each note from Debtor to Lender
and specifically referred to above, and any and all other notes or obligations
executed and delivered by Debtor to Lender, whether joint or several or joint
and several, to repay the Secured Indebtedness or any part thereof. The term
"Agreement" as used herein shall mean any and each agreement between Debtor and
Lender specifically referred to above, and any and all other agreements of
whatever nature executed and delivered by Debtor to Lender in connection with
any Note or the
Secured Indebtedness or any part thereof.
It is understood and agreed that the Secured Indebtedness will be advanced
from time to time by Lender in accordance with the provisions of any Note or any
Agreement, each of which is incorporated herein and made a part hereof by
reference to the same extent as if fully set forth herein, and it is further
understood and agreed that, from time to time, repayments on account of the
Secured Indebtedness may be made and Lender may thereafter make additional
advances including re-advances of sums previously repaid, as provided in any
Note or any Agreement, it being understood and agreed that each and every
advance made at the present or hereafter to Debtor or on behalf of Debtor or
Grantor shall be deemed to be an advance made on account of the Secured
Indebtedness and secured hereby unless otherwise specifically provided in the
Note, Agreement or other documents evidencing such advance. Repayment to Lender
of all of the Secured Indebtedness by Debtor shall not terminate the lien of
this Deed of Trust unless it is released by Lender upon receipt of the written
request of Grantor, payment of all outstanding Secured Indebtedness and
termination of all applicable Notes and Agreements; otherwise it shall remain in
force to secure future advances and indebtedness, irrespective of any additional
security that may be taken as to the Secured Indebtedness. Upon authorization of
Lender, Trustee and/or Lender shall release and discharge, at the expense of
Grantor or Debtor, this Deed of Trust and the liens, security interests and
assignments created hereby. Grantor represents, warrants, covenants and agrees
as follows:
1. Payment and Performance. Grantor shall perform its obligations under and
comply with the provisions of this Deed of Trust and any Note and any Agreement
to which it is a party.
2. Covenants; Warranty of Title; Payment of Taxes and Assessments; Prior Deeds
of Trust or Mortgages. Grantor makes the covenants and agrees to the other
provisions set forth in Section 55-59 of the Code of Virginia (1950), as
amended. Grantor is lawfully seized of the Property in fee simple absolute or
the leasehold estate if this Credit Line Deed of Trust is on a leasehold, and
has the right to convey the same. At the time of recordation, this Deed of Trust
shall be a First lien and encumbrance on the Property. Grantor will execute such
further assurances as Trustee or Lender deems necessary or desirable in order to
more fully vest title in Trustee. So long as any part of the Secured
Indebtedness shall be unpaid, Grantor will protect the title and possession of
the Property and will pay when the same become due all taxes and assessments now
existing or hereafter levied or assessed upon the Property or the interest
therein created by this Deed of Trust, or which by the laws of the jurisdiction
where the Property is located may be levied or assessed against Trustee or its
successors, or Lender, for or on account of the Secured Indebtedness upon this
Deed of Trust or the interest in the Property thereby created, together with all
sums now or hereafter owing on any senior deeds of trust or mortgages. Grantor
will provide Lender with evidence of any such
payments which from time to time may be required by Lender. Grantor will, at its
expense, take such other action and execute such other instruments as may be
necessary or desirable in the sole discretion of Lender to preserve and protect
the lien and priority of this Deed of Trust and all other instruments evidencing
or securing payment of the sums secured hereby.
3. Preservation and Maintenance of Property; Environmental Requirements. No
building or other improvement shall be substantially altered, removed or
demolished, except for changes which enhance its value, nor shall any fixtures
or attached appliances on, in or about said buildings or improvements be
severed, removed, sold or mortgaged without the prior written consent of Lender
(provided, however, that minor non-structural changes costing not more than
$10,000 may be undertaken without such consent, and that replacement of such
appliances or fixtures of equivalent value and function may be undertaken
without such consent). Grantor will not commit or suffer any waste, nor permit
or suffer any impairment or deterioration of the Property, or any part thereof.
Grantor will at all times keep and maintain the Property and every part thereof
in good condition, fit and proper for the respective purposes for which they
were originally erected or installed. Grantor will comply in all material
respects with all statutes, orders, requirements or decrees relating to the
Property, whether under federal, state, county or municipal authority, and will
observe and comply with all conditions and requirements necessary to preserve
and extend any and all rights, licenses, permits (including, but not limited to,
zoning variances, special exceptions and nonconforming uses), privileges,
franchises and concessions which are applicable to the Property or which have
been granted to or contracted for by Grantor in connection with any existing or
presently contemplated use of Property. Grantor will permit Lender or its agents
to enter upon and inspect the Property at all reasonable times and Lender shall
have the right to obtain such appraisals, reappraisals, appraisal updates or
environmental inspections as Lender, in its sole discretion, may deem necessary
from time to time.
Grantor represents and warrants that the Property never has been, and never
will be so long as this Deed of Trust remains in effect, used for the
generation, collection, manufacture, storage, treatment, disposal, release or
threatened release of any hazardous substance, as those terms are defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), Superfund Amendments and
Reauthorization Act ("XXXX"), applicable state laws, or regulations adopted
pursuant to either of the foregoing. Grantor agrees to comply with any federal,
state, or local law, statute, ordinance or regulation, court or administrative
order or decree or private agreement regarding materials which require special
handling in collection, storage, treatment or disposal because of their impact
on the environment ("Environmental Requirements"). Grantor agrees to indemnify
and hold Lender harmless against any and all claims and losses and expenses and
costs resulting from a breach of this
paragraph and Grantor will pay or reimburse Lender for all costs and expenses
for expert opinions, inspections or investigations required or requested by
Lender which, in Lender's sole discretion, are necessary to ensure compliance
with this paragraph. This obligation to indemnify shall survive the payment of
the Secured Indebtedness and the release of this Deed of Trust.
4. Insurance. Grantor will keep the Property and the improvements thereon
insured against loss by fire, casualty and other hazards (including flood
damage, if the improvements are located in a special flood hazard area) as may
from time to time be required by Lender for the benefit of Lender. If permitted
by applicable law, Grantor will maintain such public liability and indemnity
insurance as may from time to time be required by Lender. To the extent
permitted by applicable law, all such insurance shall be written in forms,
amounts and by companies satisfactory to Lender and losses thereunder shall be
payable to Lender pursuant to a standard noncontributing mortgagee's clause.
Certificates or other proof of insurance shall be delivered to Lender and
Grantor shall provide Lender with such evidence of payment of premiums due on
account of such insurance as from time to time may be required by Lender. All
such policies shall provide for at least thirty (30) days' prior written notice
to Lender of any cancellation or modification thereof, including without
limitation, cancellation for nonpayment of premium. Grantor shall give Lender
prompt notice of any loss covered by such insurance and Lender shall have the
right to join Grantor in adjusting any loss. Grantor hereby authorizes Lender,
at Lender's option, to collect, adjust and compromise any losses under any such
insurance policies herein referred to. Any funds received as payment for any
loss under any such insurance shall be paid over to Lender and shall be applied,
after deducting the costs of collection, at the option of Lender, either to the
prepayment of the Secured Indebtedness or to the reimbursement of Grantor for
expenses actually incurred by Grantor in the restoration or replacement of
Property, or any part thereof. In the event of foreclosure of this Deed of Trust
or other transfer of title to the Property conveyed hereby, all right, title and
interest of Grantor, in and to any insurance policies then in force, shall pass
to the purchaser or grantee, which may be, but shall not be limited to, Lender.
5. Lender's Right to Remedy Defaults. In the event Grantor shall neglect or
refuse (a) to keep the Property in good repair and condition; (b) to pay
promptly when due all taxes and assessments as aforesaid; (c) to remove any
statutory liens on the Property; (d) to keep the buildings, improvements and
chattels insured as aforesaid; (e) to deliver certificates or other proof of the
policies or policy of insurance or the renewals thereof to Lender as aforesaid;
(f) or if all amounts owed under any Note, Agreement or other obligation secured
by this Deed of Trust or any other deed of trust or other lien on the Property
are not paid promptly when due or all obligations, covenants, conditions and
agreements under such deed of trust or
other lien are not observed, then Lender may, if it shall so elect, in addition
to any other rights it may have under this Deed of Trust, take possession of the
Property, make repairs as it deems necessary, pay such taxes and assessments
with the accrued penalties and/or interest, pay any necessary expenses, redeem
the Property which may have been sold or forfeited for taxes or assessments
thereon, purchase any tax title thereon, remove any statutory liens or
encumbrances and prosecute or defend any suit in relation thereto, or insure and
keep insured said buildings, improvements and chattels as provided herein, or
make any payments as may be necessary to cure any default. Any sums including,
without limitation, costs, expenses and attorneys' fees which may be expended by
Lender or Trustee in so doing or otherwise for the protection or preservation of
the Property hereby or the lien of this Deed of Trust thereon, shall bear
interest from the dates of such payments at the highest rate of interest being
paid on any Secured Indebtedness (but in no event higher than the rate or rates
permitted under applicable law(, shall be paid by Grantor to Lender upon demand,
shall become a part of the Secured Indebtedness and shall be recoverable as such
in all respects. Any such liens, claims, taxes, expenses, assessments or tax
titles so purchased, paid or redeemed by Lender shall, as between the parties
hereto and their successors in interest, be deemed valid, so that in no event
shall the necessity or validity of any such payment be disputed. The occurrence
of an "Event of Default" as defined in the Amended and Restated Credit Agreement
of even date herewith by and between the Grantor and the Lender shall constitute
a default under this Deed of Trust.
6. Default, Acceleration of Payments; Trustee's Sale or Lease; Advertisement
Required. Upon the occurrence of any event of default regardless of whether
Lender shall have cured such event of default on behalf of Grantor in accordance
with the terms of this Deed of Trust, Lender may elect, without notice, to cause
all the Secured Indebtedness to be at once due and payable in full, and the
Trustee, or its successor in trust, as soon as reasonably practicable after
requested to do so by Lender (i) may take possession of the Property, may make
any repairs or replacements to the Property deemed necessary by Trustee or
Lender and/or sell (and in case of default of any purchaser, resell) in whole or
in part the Property at public auction at such time and place and upon such
terms and conditions as Trustee may deem appropriate or as otherwise required by
applicable law or rule of the court following public advertisement for the time
and in the manner prescribed by applicable law and in accordance with paragraph
16a, and in case of any sale, Trustee may require a bidder's deposit of not more
than ten percent (10%) of the outstanding amount secured, but not less than
$1,000, and shall (the terms of sale having been complied with) execute a deed
or deeds, assignment and transfer of title to the Property to the purchaser,
with such purchaser being discharged from all liability to see to the
application of the purchase money; at any such sale Lender may bid and become
the purchaser of the Property; or (ii) may take possession of the Property and
may
lease the Property either pending sale or until the amount of the Secured
Indebtedness is paid and deduct from rents received all costs of collection,
repair, replacement and administration and apply the net proceeds to the Secured
Indebtedness. The Trustee is hereby empowered to bring in its name, or in the
name of the Grantor, any suit or action it deems advisable for the enforcement
of the provisions of this clause, but the Trustee and the Lender shall be in no
way personally liable under any of the provisions of such lease or of this
clause, and shall not be personally liable to any person by virtue of their
possession of the Property or by virtue of their acting under any provisions of
this clause, except to the extent of accounting for rents actually received by
them. The proceeds of any sale of the Property by Trustee shall be applied by
Trustee: First, to pay all proper costs and charges, including but not limited
to court costs, advertising expenses, auctioneers' allowances, the expenses, if
any, required to correct any irregularity in the title, premium for Trustee's
bond, auditors' fees, attorneys' fees, cost of repairs or replacements, and all
other expenses of sale incurred in and about the protection and execution of
this Deed of Trust, and all moneys advanced for taxes, assessments, insurance,
and with interest thereon at the highest rate of interest being paid on any
Secured Indebtedness (but in no event higher than the rate or rates permitted
under applicable law), and all taxes and assessments due upon said land and
premises at time of sale, and to retain as compensation a trustee's commission
of not more than five percent (5%) on the amount of said sale or sales unless a
larger percentage or amount is agreed upon in writing by Lender, and attorneys'
fees and expenses of any litigation which may arise on account of the execution
and enforcement of this Deed of Trust or any Note or Agreement; second, to pay
and satisfy all Secured Indebtedness, interest and all other charges hereby
secured then remaining unpaid, and interest thereon to date of payment, whether
the same shall be due or not, it being understood and agreed by Grantor that the
amounts due under any Note or Agreement shall, upon such sale being made before
the maturity thereof, be and become immediately due and payable at the election
of Lender; and Third, to pay the remainder of said proceeds, if any, to Grantor,
its heirs, personal representatives, successors or assigns, or to any other
person lawfully entitled thereto, upon the delivery and surrender to the
purchaser, his, her or their heirs and assigns, of possession of the Property
and premises, less costs and expenses of obtaining possession. If after so
applying such proceeds, any portion of the Secured Indebtedness shall remain
unpaid, such balances shall continue to be due and payable, and shall be subject
to collection by Lender by suit or otherwise. In the event the Property shall be
advertised for sale as above provided but be withdrawn from sale or for any
other reason not sold, Trustee shall be entitled to a reasonable fee and
accruals, and any fees of attorneys or auctioneers, and any other expenses shall
be charged to and paid by Grantor. In addition, in the event of default
hereunder, Lender shall have all rights and remedies permitted by law and by any
document evidencing, governing, or securing the obligations secured hereby.
7. Substitute Trustee. Lender has the irrevocable right and power to substitute
without cause or notice a trustee or trustees in the place of any Trustee named
under this Deed of Trust. Such power of appointment and substitution may be
exercised at any time hereafter and as many times as Lender, its successors or
assigns, may desire. Such substitute Trustee(s) shall be vested with the same
titles and powers as are granted herein to the original Trustee. Nothing herein
contained shall deprive Lender of its right to apply for an receive any relief
regarding the Trustee hereunder which is now, or which may hereafter be,
provided for by the internal laws of the jurisdiction in which the Property is
located or applicable federal law.
8. Condemnation. Grantor hereby irrevocably grants, assigns, transfers and set
over unto Lender all right, title and interest of Grantor in and to any award or
payment made (not to exceed the outstanding Secured Indebtedness including,
without limitation, accrued interest, and costs, expenses, reasonable attorneys'
fees, and disbursements incurred by Lender in connection with collection of such
award and payment) in respect of (a) any taking of the Property or any part
thereof as a result of, or by agreement in anticipation or in lieu of, any
exercise of the power of eminent domain or condemnation; and (b) any such taking
of any appurtenances to the Property; and (c) any damage to the Property or any
part thereof due to governmental action affecting, but not resulting in a taking
of, the Property, including, by way of example and not by way of limitation, the
changing of the grade of a street adjacent or proximate to the Property provided
that if no Event of Default has occurred which remains uncured and such
condemnation does not affect more than 25% of the fair market value of the
improvements and Land constituting a portion of the Property, Lender agrees to
allow Grantor to use such condemnation proceeds to rebuild or restore the
Property. Grantor agrees to promptly notify Lender of the commencement of any
condemnation or eminent domain proceeding. Grantor further agrees, upon request,
to make, execute and deliver any assignments or other instruments necessary for
the purpose of assigning or transferring any such award or awards to Lender free
and clear of any encumbrances whatsoever. The excess amount of such award over
and above sums due Lender on account of the Secured Indebtedness, interest and
other charges, shall be paid to Grantor, its successors and assigns.
9. Restrictions on Transfer of Property; No Secondary Financing; Mechanics'
Liens. NOTICE - THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS
THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY. (a)
If all or any part of the Property is sold, transferred, conveyed or encumbered
without Lender's prior written consent, Lender may, at its option, require
immediate payment in full of all sums secured by this Deed of Trust and exercise
all remedies provided in this Deed of Trust in the event of default. However,
this option shall not be exercised by Lender if exercise is prohibited by
federal law as of the date of this Deed of Trust. Lender reserves the absolute
option and right, if permitted by
applicable law, among other things, to: require the agreement by Grantor and
Grantor's transferee to any terms and conditions that Lender may require upon
transfer, increase the rate of interest upon transfer, and charge an assumption
fee. (b) To the extent permitted by applicable law, Grantor shall not
voluntarily or otherwise permit to be created or filed against the Property,
without the prior written consent of Lender in each instance, any other deed of
trust or mortgage or other lien or liens or superior to the lien of this Deed of
Trust. c) Grantor will keep and maintain the Property free from all liens
arising by virtue of all persons supplying labor or materials performed thereon
or incorporated therein, notwithstanding by whom such labor or materials may
have been contracted, and if any liens in respect to any such labor or materials
are filed against the Property, Grantor shall cause the same to be released
completely of record either by payment and discharge or by the posting of
substitute collateral therefore in accordance with applicable laws within twenty
(20) days of the filing thereof, and Grantor will make all payments on all liens
permitted herein (if any), when due.
10. Assignment of Rents. Grantor hereby assigns unto Lender the rents, issues
and profits accrued and to accrue from all tenants of the Property or any part
thereof, during the term of this Deed of Trust, or any extensions thereof, it
being understood that as long as there is no event of default hereunder Grantor
shall have the privilege of collecting and receiving all rents, issue, and
profits (but no more than one (1) month in advance) accruing under leases or
contacts of tenancy for the Property or any part thereof. Upon the occurrence of
an event of default, Lender may immediately collect such rents, issues and
profits as they become due and apply the same, less the costs and expenses of
collection thereof, toward the payment of any of the Secured Indebtedness.
Grantor will not execute any assignment of the rents, issues and profits from
the Property or any part thereof unless such assignment shall provide that it is
subordinate to the assignment of rents set forth in this Deed of Trust and any
other assignments executed pursuant hereto or in conjunction herewith.
11. Notice of Adverse Claim of Lien. If Grantor shall receive any notice or
other instrument which might materially adversely affect the Property or the
lien of this Deed of Trust thereon, Grantor will furnish, within three (3) days
following such receipt, by certified mail, a copy of such notice or other
instrument to Lender. The notices referred to herein shall include, but not be
limited to, notices from any tenant or lessee claiming a default by Grantor
under any lease or occupancy agreement, any notice by any public authority
concerning any tax or special assessment, and any notice of any alleged
violation of any building, zoning, fire or other law or regulation affecting the
Property.
12. Remedies Cumulative; Forbearance by Lender/Trustee Not a Waiver. All
remedies available to Lender or the Trustee with
respect to this Deed of Trust or under any instrument evidencing, governing, or
securing the Secured Indebtedness, including, but not limited to, any other
deeds conveying other property in trust to secure payment of the obligations
secured hereunder, or provided by law or in equity or by any statute, or
otherwise, shall be cumulative and may be pursued concurrently or successively.
Grantor, for itself and all who claim under it, waives to the extent that it
lawfully may, all right to have the Property marshaled upon any sale or
foreclosure hereunder. No delay or omission of Trustee or Lender to exercise any
right, power or remedy shall impair any such right, power or remedy, or shall be
construed to be a waiver of any default or any acquiescence therein. No delay or
omission on the part of Lender to exercise any option granted for acceleration
of the maturity of the Secured Indebtedness or for foreclosure following any
default or any other option granted to Lender hereunder in any one or more
instances, or tender to and/or acceptance by Lender of any partial payment on
account of Grantor's or Debtor's obligations shall constitute a waiver of any
such default or operate to rescind any such acceleration and each such option
shall remain continuously in full force and effect.
13. Covenants Running with the Land. All covenants hereof
shall run with and be binding on the land and improvements
conveyed hereby until this Deed of Trust shall be released of
record.
14. Hold Harmless. Grantor shall save Lender and Trustee harmless from all costs
and expenses, including reasonable attorneys' fees and costs incurred by reason
of any action, suit, proceeding, hearing, motion or application before any court
or administrative body in and to which Lender and/or Trustee may be or become a
party by reason of this Deed of Trust, including, but not limited to,
condemnation, bankruptcy, probate and administration proceedings, as well as any
of the foregoing wherein proof of claim is by law required to be filed or in
which it becomes necessary to defend or uphold the terms or priority of this
Deed of Trust, and all money paid or expended by Lender or Trustee in that
regard, together with interest thereon from date of such payment at the highest
rate of interest being charged on any Secured Indebtedness (but in no event
higher than the rate or rates permitted under applicable law), shall be
immediately and without notice due and payable by Grantor, shall become a part
of the Secured Indebtedness and shall be recoverable as such in all respects.
15. Trustee's Authority. Trustee or any person acting in its stead shall have,
at its discretion, authority to employ all proper agents and attorneys in the
execution of this Deed of Trust, and pay for such services rendered out of the
proceeds of the sale of the Property conveyed hereby, should any be realized;
and if no sale be made, then Grantor hereby undertakes and agrees to pay to
Trustee the cost of such services rendered. If from time to time more than one
Trustee or Substitute Trustee shall have been appointed hereunder, then any one
Trustee or Substitute Trustee may act for all such Trustees and/or Substitute
Trustee(s).
16. Governing Law. This Deed of Trust, without regard for the place of contract,
advance of funds or payment, shall be governed, construed and enforced according
to the laws of the Commonwealth of Virginia, with reference to Articles 2 and 3,
Chapter Four, Title 55 of the Code of Virginia of 1950, as amended, and with
such further understandings in short form as provided therein, including the
following provisions: (a) Advertisement Required: Advertisement of the time,
place and terms of sale once a week for two weeks in a newspaper having general
circulation in the city or county where the Property or some part thereof is
located, after the giving of prior notice as prescribed by law.
(b) Exemptions waived.
(c) Subject to all upon default.
(d) Renewal, extensions or reinstatement permitted.
(e) Fire and extended coverage insurance required: $full replacement value.
(f) Substitution of Trustee permitted with or without cause.
(g) Any Trustee may act.
17. Severability of Provisions. In the event any one or more of the provisions
hereof or of any Note or Agreement shall for any reason be held to be invalid,
illegal, or unenforceable, in whole or in part or in any respect, or in the
event any one or more of the provisions hereof or of any Note or Agreement
operate or would prospectively operate to invalidate this Deed of Trust, then
and in any of those events, at the option of Lender, such provision or
provisions shall be severable and shall not affect any other provision hereof or
of the Note or Agreement shall remain operative and in full force and effect and
shall in no way be affected, prejudiced, or disturbed thereby.
18. Waiver of Notice of Future Advances and Consent to Extensions, Modifications
and Release. If Grantor (or any one or more of the parties constituting Grantor)
is not the Debtor, then Grantor expressly (a) waives notice of any and all loans
and/or advances made, from time to time during the continuance of this Deed of
Trust by the Lender to Debtor (or any one or more of the parties constituting
Debtor; (b) agrees that modifications of the terms of any Note or Agreement,
including without limitation, modifications extending the term for payment or
adjusting the interest rate applicable to any Secured Indebtedness, may be made
from time to time between Lender and Debtor without notice to or consent of
Grantor; (c) agrees that Lender, without notice to or further consent of
Grantor, may grant extension of time and other indulgences to and renew any of
the obligations of Debtor without regard to the number and length of such
extensions, renewals or other indulgences. Grantor further agrees that Lender
without notice to or further consent of Grantor, may release or discharge any
persons who are or may be liable for the payment of any Note or Agreement or
release or discharge any collateral for payment of the Secured Indebtedness and
that any such release or discharge shall not alter, modify, release or limit the
liability
of Grantor (or any one or more of the parties constituting Grantor) or the
validity or the enforceability of this Deed of Trust; and (d) agrees that Lender
may exercise its rights under this Deed of Trust prior to taking any action
against the Debtor.
19. Time is of the Essence. Time shall be of the essence for each and every
provision of any Note, any Agreement, this Deed of Trust and all other
documents, agreements and contacts evidencing, securing, or governing the
obligations secured hereby.
20. References; Applicability. All references in the foregoing covenants to
Lender shall apply equally to any subsequent holder or assignee of any Note or
any Agreement.
21. Titles. The paragraph titles contained in this Deed of Trust are for
reference purposes only and shall not affect the meaning or interpretation of
this Deed of Trust.
22. Designations. In any designation hereunder, the use of one gender shall
include any other gender wherever same may be appropriate, and the plural shall
be substituted for the singular or the singular substituted for the plural in
any place herein in which the context may require such substitution.
23. Riders to this Deed of Trust. If a rider is executed by Grantor and recorded
together with this Deed of Trust, the covenants and agreements of the rider
shall be incorporated into and shall amend and supplement the covenants and
agreements of this Deed of Trust as if the riders were a part of this Deed of
Trust.
IN WITNESS WHEREOF, Grantor on the year and day first written above, has caused
this Deed of Trust to be signed, sealed and delivered.
XXXXXXXX'X FOODS, INC.
By: Xxxxxx X. Xxxxxxxxx, Xx. (SEAL)
------------------------
(Signature)
Senior Vice President
[Acknowledgment for corporate Grantor]
Commonwealth of Virginia City of Norfolk, to wit:
[Illegible], a Notary Public in and for the aforesaid jurisdiction, do certify
that Xxxxxx X. Xxxxxxxxx, Xx., whose name is signed to the Deed of Trust above,
bearing date on the 14th day of June, 1996, as Senior Vice Pres. of Xxxxxxxx'x
Foods, Inc., a Virginia corporation, has acknowledged the same, before me in the
jurisdiction aforesaid. Given under my hand this 14th day of June, 1996.
My commission expires: July 31, 1996 [Illegible] (SEAL)
-------------
(Signature)
Notary Public
EXHIBIT A TO CREDIT LINE DEED OF TRUST DATED JUNE 14, 1996, BY
AND AMONG XXXXXXXX'X FOODS, INC., a Virginia corporation, as
Grantor, XXXXX X. XXXXXX and XXXXX XXXXXXXXX, as Trustees, and
CRESTAR BANK
PARCEL ONE:
THAT certain lot, piece or parcel of land, with the buildings and
improvements thereon, situate in the City of Portsmouth, State of Virginia, and
is shown on a certain plat entitled: "Plat Showing Property To Be Conveyed To
Xxxxxxxx'x Barbecue, Portsmouth, Virginia", dated December 11, 1962, made by
Xxxx-Xxxxxxx & Xxxxxx, and bounded and described according to said plat as
follows:
BEGINNING at a point at the intersection of the north side of Xxxxxx
Street and the west line of a right of way of Norfolk & Portsmouth Belt Line
Railroad, and running thence North 4 degrees 58' West along said right of way
585.00 feet to a point; thence South 85 degrees 02' West 242.56 feet to a point
at the intersection of the south side of Arlington Street and the east side of a
twelve foot (12) lane; thence South 4 degrees 58' East along said lane 585.00
feet to the north side of Xxxxxx Street, and thence east along the north side of
Xxxxxx Street, North 85 degrees (formerly erroneously designated as 58 degrees)
02' East 242.56 feet to the point of beginning, and containing 3.258 acres;
BEING the same property conveyed by Portsmouth Industrial Foundation,
Incorporated to Xxxxxx Realty Corporation by deed dated July 13, 1964, recorded
in the Office of the Clerk of the Circuit Court of Portsmouth, Virginia in Deed
Book 430, page 39; the said Xxxxxx Realty Corporation having merged into
Xxxxxxxx'x Barbecue, Inc. on March 7, 1972, and the said Xxxxxxxx'x Barbecue,
Inc. having merged into Xxxxxxxx'x Foods, Inc. on March 7, 1972, as described in
a Certificate of the Clerk of the Virginia State Corporation Commission recorded
in the Office of the Clerk of the Circuit Court of Portsmouth, Virginia in Deed
Book 918, page 129.
PARCEL TWO:
All that certain piece or parcel of property, with the appurtenances
thereunto belonging, situate in the City of Portsmouth, Virginia, containing
approximately 4.36 acres, and bounded and described as follows:
Beginning at a point on the east side of Chautauqua Avenue 160 feet north
from the northeast intersection of Chautauqua Avenue and Adriatic (formerly
Arlington) Street, and from thence running N 4 degrees 58' W along Chautauqua
Avenue 349.65 feet; thence N 85 degrees 02' E 394.56 feet to the right-of-way of
the Norfolk and Portsmouth Belt Line Railroad; thence S 4 degrees 58' E along
said right-of-way 559.65 feet; thence S 85 degrees 02' W 242.56 feet to the
eastern end of Adriatic Street; thence N 4 degrees 58' W along the eastern end
of Xxxxxxxx Xxxxxx 00 feet; thence S 85 degrees 02' W along the northern side of
Adriatic Street 6 feet; thence N 4 degrees 58' W 160 feet; and thence S 85
degrees 02' W 146 feet to the point of beginning;
BEING the same property conveyed by Portsmouth Port and Industrial
Commission to Xxxxxxxx'x Foods, Inc. by deed dated June 28, 1984, recorded in
the Office of the Clerk of the Circuit Court of Portsmouth, Virginia in Deed
Book 889, page 819.
PARCEL THREE:
All those ten certain lots of land, with the buildings and improvements
thereon, situate, in the City of Portsmouth, Virginia, and known and designated
as Lots Numbers 2279, 2280, 252, 253, 254, 255, 256, 257, 258, and 259 on the
plat of the Port Norfolk Land Company, recorded in the Clerk's Office of the
Circuit Court of the City of Chesapeake (formerly Norfolk County), Virginia, in
Map Book 4, pages 70 and 71; the said lots taken together being bounded and
described as follows:
Beginning at the southwest intersection of Virginia Avenue and Xxxxxx
Street, and thence running southerly along the west side of Virginia Avenue 400
feet to a point 200 feet north of the north side of Detroit Street; thence
westerly and at right angles to Virginia Avenue 140 feet to an alley; thence
northerly along said alley 400 feet to Xxxxxx Street; and thence easterly along
the south side of Xxxxxx Street 140 feet to the point of beginning.
Being a portion of the same property acquired by Xxxxxxxx'x Foods, Inc.,
a Virginia corporation, by deed from Xxxxxxx X. Xxxxx and Xxx X. Xxxxx, dated
July 14, 1980, and recorded in the Clerk's Office of the Circuit Court of the
City of Portsmouth, Virginia, in Deed Book 786, at page 321.
PARCEL FOUR:
All that certain piece or parcel of land, with the buildings and
improvements thereon, situate, lying and being in the City of Portsmouth,
Virginia, and being more particularly bounded and described as follows:
A parcel of land 35 feet in width and 400 feet in length lying in front
and east of the aforesaid lots [Parcel Three], being the western one-half of
Virginia Avenue, as shown on the plat of the Port Norfolk Land Company, recorded
in the Clerk's Office of the Circuit Court of the City of Chesapeake (formerly
Norfolk County), Virginia, in Map Book 4, pages 70 and 71; said portion of
Virginia Avenue having been closed and vacated as a public street by an
ordinance adopted by the City Council of the City of Portsmouth on November 23,
1965, a copy of which ordinance is recorded in the Clerk's Office of the Circuit
Court of the City of Portsmouth, in Deed Book 574, at page 263.
IT BEING the same property conveyed to XXXXXXXX'X FOODS
INC. by deed from W. Xxxxxx Xxxxx, General Receiver for The Port
Norfolk Land Co., dated May 27, 1981, recorded in Deed Book 807,
page 686; and
IT BEING part of the same property conveyed to XXXXXXXX'X FOODS INC. by
deed from Xxxxxxx X. Xxxxx and Xxx X. Xxxxx, his wife, dated July 14, 1980,
recorded in Deed Book 786, page 321.
