EXHIBIT 10.52
DEED OF TRUST
DATED AS 0F OCTOBER 19, 2001
MADE BY
OMEGA PROTEIN, INC.
TO
XXXXXX X. XXXXX, XX, OF
NORTHUMBERLAND COUNTY, VIRGINIA
AND
B.H.B. XXXXXXX, III, OF
LANCASTER COUNTY, VIRGINIA, TRUSTEES
FOR THE BENEFIT OF
THE UNITED STATE OF AMERICA
1
DEED OF TRUST AND SECURITY AGREEMENT
COMMONWEALTH OF VIRGINIA
COUNTY OF NORTHUMBERLAND
1. PARTIES: WHEREAS, OMEGA PROTEIN, INC., a Virginia corporation,
hereinafter "Grantor", whether one or more, is indebted to the UNITED STATES OF
AMERICA acting by and through the Secretary of Commerce, Office of the Financial
Services Division, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, hereinafter"Beneficiary", in the aggregate amount of
One Million, Nine Hundred Thousand, and No/100 Dollars ($1,900,000.00), together
with interest thereon, as evidenced a certain promissory note, payable to the
order of the United States of America, acting by and through the Secretary of
Commerce, Office of the Financial Services Division, National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, which bears interest
and is payable according to the terms of said note and which has a final
maturity date of October 18, 2016.
2. THE PROMISSORY NOTE TO THE UNITED STATES OF AMERICA: NOW, THEREFORE, in
consideration of the premises and in order to secure the prompt and full payment
of said indebtedness, and any future advance(s), additional advance(s), and/or
readvance(s), and/or any renewal(s), extension(s), restructuring(s),
reamortization(s), any other sums provided for in any loan document, and/or any
other loan treatment(s) thereof, or any part thereof, and the interest thereon
and any and all other indebtedness(es) (including future advance(s) now or
hereafter owed by any of the undersigned to the Beneficiary), whether such
indebtedness(es) is primary or secondary, direct or indirect, contingent or
absolute, matured or unmatured, joint or several, and otherwise secured or not,
and the faithful performance of and compliance with all the terms, agreements,
provisions, obligations, covenants, conditions, warrants, representations, and
stipulations herein made, or made in any Loan Agreement or in any other document
related to the promissory note described as follows:
(a.) The Promissory Note to the United States of America executed by
Grantor in the principal amount of One Million, Nine Hundred thousand &
No/100 Dollars,
2
($1,900,000.00), with interest on the unpaid principal computed from the
19th day of October, 2001, at the rate of Seven and one one-hundredth
percent (7.01%) per year, payment to be made in installments of Fifty-one
thousand Four hundred thirty-four and No/100 Dollars ($51,434.00),
including principal and interest quarterly, with the balance of principal
and interest due 15 years from the date of said Note. The first quarterly
payment shall be due on the 19th day of January, 2002, and each quarterly
payment thereafter shall be due on the day of the month that the first
quarterly payment is due thereunder.
3. THE PROPERTY: OMEGA PROTEIN, INC., hereinafter Grantor, whether one or
more, in consideration of the premises and other good and valuable consideration
paid to Grantor by Xxxxxx X. Xxxxx, XX, Esq., and B.H.B. Xxxxxxx, III, Esq., as
Trustees, either of whom may act, whose address is X.X. Xxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, hereinafter, "Trustee", does hereby convey and warrant unto
Trustees with General Warranty the real estate, hereinafter "The Property",
situate in Northumberland County, Virginia, more particularly described on
Exhibit A, attached hereto, recorded herewith, and, by this reference ,
expressly made a part hereof for a further and more accurate desrciption of the
real estate hereby encumbered, together with all buildings and other
improvements, hereditaments and appurtenances thereunto belonging, or in any
wise appertaining now existing or hereafter erected upon the premises and all
the income and rents arising therefrom. Grantor does hereby intend to convey and
does convey all of Grantor's right, title and interest in and to any strips and
gores Grantor may now own contiguous to the above described property.
4. MINERALS INCLUDED: It is expressly understood and agreed, as a part of
the consideration for the loan made to the Grantor and secured by the premises
hereinabove described, that this instrument covers and includes all surface,
subsurface and/or mineral estate ownership now or after acquired by the
undersigned in the above-property and whether or not expressly excepted from the
description to the above security premises, any provisions herein to the
contrary being of no force and effect.
5. PLEDGE OF PERSONAL PROPERTY: AND FOR THE CONSIDERATION AFORESAID, and as
further security for any and all debt(s) and obligation(s) described above, said
Grantor does hereby assign, pledge and transfer to the Beneficiary, and grant to
the Beneficiary a security interest in and to the following described property
and interests, to-wit: (1) all timber of all
3
kind, character and description planted and/or growing, or to be planted and/or
grown, on the hereinabove described property; (2) all crop allotments, quotas,
and/or (3) all rents, profits, issues, income, royalties, bonuses, and revenues
of said property, or any part or interest herein, from time to time accruing
whether under leases or tenancies now existing or hereafter created; (4) each
and every policy of hazard insurance or the like now or hereafter in effect
which insures said property or any building, fixture and/or improvement thereon
or any part thereof, together with all the right, title and interest of Grantor
in and to such policy, including but not limited to any premiums paid (or rights
to return premiums) and/or all proceeds or payments thereunder; (5) all
judgments, award of damages and settlements hereafter made resulting from
condemnation proceedings or the taking of the real property, or any part
thereof, under the power of eminent domain, or for any damage (whether caused by
such taking or otherwise) to the property, or any part thereof, or to any rights
appurtenant thereto; (6) all building materials, equipment, fixtures and
fittings of all kind, character, and description used in connection with or
relating to said property and/or buildings, fixtures or improvements thereon;
(7) all equipment, including, but not limited to: forklifts, bobcats, cranes,
pallet trucks, lift trucks and other product or material movement equipment of
whatsoever nature; all trailers, tanks, trucks, or other rolling stock of
whatsoever nature; all fish unloading, transfer and conveying equipment of
whatsoever nature; all fish processing equipment of whatsoever nature; all fish
weighing equipment of whatsoever nature; all cooling, refrigerating, freezing
and other fish holding equipment (blast freezers, plate freezers, coolers, or
other refrigeration equipment) of whatsoever nature; all fish packaging
equipment of whatsoever nature; all fish baskets, totes, tanks, tubs, and other
fish holding equipment of whatsoever nature; all ice makers of whatsoever
nature; all hand and power tolls of whatsoever nature; all office equipment of
whatsoever nature; all fish hatching, releasing, rearing, growing, tending, and
other equipment of whatsoever nature in any way associated with fisheries
cultivation of every sort-all together with all associated equipment, machinery,
parts, tools, or other items of whatsoever nature and whether fixed or unfixed
to the Project Property or any other premises whatsoever; and/or (8) all
tangible or intangible property found on the premises and products, proceeds,
and additions and/or replacement of any or all of the property described above
in items 1 through 8.
4
Additionally, Grantor does hereby assign, pledge and transfer to the
Beneficiary, and grant to the Beneficiary a security interest in any
transferable fishing conservation and management allocation (including, but not
limited to, allocations, permits, quotas, licenses, cage tags, or any other
fisheries access restriction or right, however characterized, of whatsoever
nature) affecting, necessary for, or in any other way, however characterized,
associated with any of the property included in the collateral, the Grantor
agrees to grant to the Beneficiary a full senior security interest in such
allocation by whatsoever means deemed by the Beneficiary to be appropriate
(including, but not limited to, the Grantor's execution of security agreements
and the filing of financing statements under the UCC), presently owned or
acquired at any time in the future. Further, if the Grantor fails to do so, the
Grantor agrees that the Beneficiary may use, for the purpose of executing and
otherwise perfecting whatever documents may be required to effect the grant to
the Beneficiary of such a full security interest in such fisheries conservation
and management allocation, the attorney-in-fact authority conferred upon the
Beneficiary by Article XI of the Title XI Financial Agreement.
IN TRUST, however, to secure and enforce the repayment of all of Grantor's
obligations under the promissory note set forth above and to secure Grantor's
promises contained hereinafter. GRANTOR FURTHER COVENANTS, WARRANTS AND AGREES:
7. TAXES, FEES: To pay when due all taxes, liens, judgments, assessments or
fees assessed against said property and to promptly furnish Beneficiary with tax
receipts or like documents evidencing payment of or release from all taxes,
liens, judgments, assessments or fees. By execution hereof, Grantor agrees to
pay when due all community water system assessment and meter fees, if any,
applicable to said property, and in the event of foreclosure, hereby does
transfer and assign to the purchaser all of Grantor's interest and membership,
if any, in said community water system applicable to said property, and agrees
to execute such documents as are necessary to effectuate such transfer.
8. INSURANCE REQUIREMENT: To insure and keep insured buildings and other
improvements now on or which may hereafter be placed on said premises, against
loss or damage by
5
fire, water windstorm and/or all hazards included within "extended coverage", as
well as loss or damage by flood in areas designated by the U.S. Department of
Housing and Urban Development as subject to flood, any policy evidencing such
insurance to be deposited with, and the loss thereunder to be payable to
Beneficiary as its interest may appear, and providing for immediate notification
to Beneficiary of any lapse, cancellation or other impairment of said insurance.
All policies shall be written by reliable insurance companies authorized to
write policies of insurance in the State of Virginia, acceptable to Beneficiary.
At the option of Beneficiary, and subject to the general regulations of U.S.
Department of Commerce, where applicable, sums received by Beneficiary from such
insurance companies may be used to pay for reconstruction or repair of destroyed
or damaged buildings or improvement(s); or, if not so applied may, at the sole
option of the Beneficiary, be applied in payment of any indebtedness, matured or
unmatured, secured by this deed of trust and security agreement. The Beneficiary
will be listed on any insurance policy and named as First Loss Payee on all
insurance covering real property, except Liability coverage, in which case the
Beneficiary is named a Loss Payee as its interest may appear. The Beneficiary
will also be listed as a First Loss Payee on all insurance covering personal
property, as its interest may appear.
9. USE OF THE PROPERTY: That the aquaculture portion of the premises
hereinbefore described, if any, shall be continuously used in a husbandlike
manner for aquaculture production which incorporates good aquaculture practices
that will produce the maximum yield consistent with conservation goals; that in
the event that any part of the premises is used for agriculture, it shall be
conducted in a husbandlike manner, that Waste will not be committed or
permitted; if timber land is involved as security, Grantor will follow good and
approved forestry practices to minimize or prevent fire danger, erosion or
depreciation, protect young trees, and maintain forest production; it is agreed,
however, that no timber now or hereafter affected hereby will be cut, removed,
damaged or turpentined (except such as is customarily used on the property for
fuel, fencing or repairs) without the prior written consent of the Beneficiary.
Grantor will promptly notify Beneficiary of any damage to timber from any
source. Grantor will, where practical, promptly notify Beneficiary of any
potential damage to timber. In the event this covenant, or any part, is
breached, Grantor agrees to pay all costs and expenses, including reasonable
attorney's fees, incurred
6
by Beneficiary in investigating such violation and in protecting and preserving
this security.
10. EVENTS OF DEFAULT-REMEDIES: This conveyance, however, is in trust to
secure the payment and performance of the obligations. But if Grantor fails to
pay when due any sums secured hereby or if default is made by Grantor (or any
one of them) in the payment or performance of any of the obligations under the
Note, Promissory Note to the United States, Deed of Trust and Security
Agreement, Title XI Agreement, or any other document or agreement associated
with this transaction, or in case Grantor should become insolvent, commit an Act
of Bankruptcy, or apply to a bankruptcy court to be adjudicated a voluntary
bankrupt, or proceedings be instituted to put Grantor in involuntary bankruptcy,
or should any proceedings be taken against Grantor for the appointment of a
receiver, assignee or trustee, or should Grantor make an assignment for benefit
of one or more creditors, or should Beneficiary in good xxxxx xxxx itself
insecure and its prospect of payment impaired, or if any loan proceeds are used
for a purpose that will: (1) contribute to excessive erosion of highly erodible
land or to the conversion of wetlands to produce an agricultural commodity, as
further explained in 7 CFR Part 1940, Subpart G, Exhibit M, or (2) result in
poor aquaculture practices, then in that event all of the obligations shall, at
the option of Beneficiary, be and become at once due and payable without notice
to Grantor, and Trustee herein named or his successor or successors shall, at
the request of Beneficiary, sell all or any part of the Property as set out in
P. 30 of this Deed of Trust and Security Agreement. In the event of any such
default, Beneficiary shall also have all the remedies of a secured party under
the Uniform Commercial Code of Virginia and any other applicable law, including,
but not limited to the right to seek a judgment for any deficiency in the amount
owed, following liquidation of collateral. All remedies of Beneficiary shall be
cumulative. A failure on the part of Beneficiary to exercise any remedy or
option contained in this Deed of Trust and Security Agreement in the event of
default shall not constitute a waiver of Beneficiary's right to exercise said
remedy or option in the event of that or any subsequent default.
11. COMPLIANCE WITH ALL REGULATIONS: With respect to the Property, Grantor
covenants with Beneficiary, that Grantor has complied, is in compliance, and
will at all times comply in all respects with all applicable laws (whether
statutory, common law or otherwise), rules,
7
regulations, orders, permits, licenses, ordinances, judgments, or decrees of all
governmental authorities (whether federal, state, local or otherwise),
including, without limitation, all laws regarding public health or welfare,
environmental protection, water and air pollution, composition of product,
underground storage tanks, toxic substances, hazardous substances, hazardous
materials, hazardous wastes, other wastes or used oil, asbestos, occupational
health and safety, nuisances, trespass, and negligence.
12. HOLD HARMLESS AGREEMENT: Grantor agrees to indemnify and hold
Beneficiary, its directors, employees, agents, and its successors and assigns,
harmless from and against any and all claims, losses, damages, liabilities,
fees, penalties, charges, judgments, administrative orders, remedial action
requirements, enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including but not limited to, attorney's fees
and expenses, including all attorney's fees and expenses incurred by Beneficiary
in and for this indemnity), arising directly or indirectly, in whole or in part
out of any failure of Grantor to comply with the environmental representations,
warranties and covenants contained herein.
13. SURVIVAL OF GRANTOR'S LIABILITY: Grantor's representations, warranties,
covenants and indemnities contained herein shall survive the occurrence of any
event whatsoever, including without limitation, the satisfaction of the
promissory note secured hereby, the reconveyance or foreclosure of the mortgage,
the acceptance by Beneficiary of a deed in lieu of foreclosure, or any transfer
or abandonment of the property, failure to comply strictly with the
representations, warranties, covenants and indemnities commenced herein shall
constitute a default under this deed of trust.
14. VALID FIFTH LIEN: That this deed of trust and security agreement is a
valid fifth lien against all the land, interests and improvements offered and/or
appraised as security for this loan and that the property and interests
described herein is now free and clear of any and all other liens and
encumbrances except as otherwise set forth herein. If the validity of this deed
of trust, or if Grantor's title to any of said land, interests or improvements
is questioned in any manner, or if any part of such land, interests or
improvements is not properly described herein, Beneficiary may, in its
discretion, investigate and take such action as it considers necessary or
desirable for the protection of
8
its interests and for this purpose may employ legal counsel or expert assistance
and the Grantor will promptly pay all expenses so incurred by Beneficiary.
The lien of this deed of trust is subordinate and of inferior dignity to
the lien of that certain prior deed of trust dated July 18, 1989, from Xxxxxx
Xxxxxx Corporation to Xxxxxxx X. Xxxxxxxx, et al, Trustees, securing the United
States of America in the original amount of $4,675,000.00, recorded in Deed Book
298, at Page 80, in the Clerk's Office of the Circuit Court of Northumberland
County, Virginia, as amended by that certain Amendment dated March 31, 1993,
recorded in Deed Book 348, at Page 130, in the Clerk's Office aforesaid.
The lien of this deed of trust further is subordinate and of inferior
dignity to the lien of that certain prior deed of trust dated October 30, 1996,
from Xxxxxx Protein (USA), Inc., to Xxxxx X. Xxxxxxx, et al, Trustees, securing
the United States of America in the original amount of $1,848,562.00, recorded
in Deed Book 407, at Page 706, in the Clerk's Office of the Circuit Court of
Northumberland County, Virginia. The lien of this deed of trust further is
subordinate and of inferior dignity to the lien of that certain prior deed of
trust dated May 12, 1998, from Omega Protein, Inc., to Xxxxxx X. Xxxxx, XX, et
al, Trustees, securing the United States of America in the original amount of
$2,593,761.00, recorded in Deed Book 431, at Page 200, in the Clerk's Office of
the Circuit Court of Northumberland County, Virginia.
The lien of this deed of trust further is subordinate and of inferior
dignity to the lien of that certain prior deed of trust dated December 21, 1999,
from Omega Protein, Inc., to Xxxxxx X. Xxxxx, XX, et al, Trustees, securing the
United States of America in the original amount of $2,030,661.00, recorded in
Deed Book 460, at Page 721, in the Clerk's Office of the Circuit Court of
Northumberland County, Virginia.
15. GRANTOR TO PAY EXPENSES: That if Grantor defaults in any of the
provisions of this Deed of Trust and Security Agreement, particularly, but not
limited to, P. P. 7, 8, 9 or 14, then Beneficiary may pay such taxes, liens,
judgments or assessments, obtain and pay for such insurance, advance such
attorney's fees, expenses and costs, or take any other action or incur any other
expenditures that Beneficiary determines are necessary to protect Beneficiary's
interests and Grantor
9
agrees to immediately pay Beneficiary all amounts so advanced and that all
amounts so advanced shall be secured hereby.
16. USE OF PROCEEDS: That all representations and statements made in the
application for this loan are true and correct, that the proceeds of this loan
will be used solely for the purposes specified in said application and that
Grantor will comply with all requirements and conditions imposed by Beneficiary
in making this loan.
17. NON-ALIENATION CLAUSE: To not sell, assign or convey any part or all of
the mortgaged premises (regardless of whether the buyer or assignee "assumes"
the note or takes the mortgage premises "subject to" such note, or whether by
contract for deed or sale) without first obtaining the Beneficiary's prior
written consent as long as the above note, or any part, or any other sum owed to
the Beneficiary, remain unpaid. If Grantor is a corporation, not to change the
substantial ownership and/or control of said corporation without first obtaining
the Beneficiary's prior written consent as long as the above note, or any part,
or any other sums owed to the Beneficiary, remain unpaid.
18. PROMPT PAYMENT PROVISION: That all payments of principal and interest
(or any part thereof) not made when due shall bear interest from due date to the
date of payment thereof by maker or assumptor at the default rate which is equal
to eighteen percent (18%) per annum. All advances made by the holder hereof
shall be secured by and under this Deed of Trust and Security Agreement and
shall be payable with interest from the date each advance is made until paid by
maker or assumptor at the default rate.
19. RELEASE PROVISION: That Beneficiary may at any time, without notice,
release any of the property described herein, grant extensions or deferments of
time of payment of the indebtedness secured hereby, or any part thereof, grant
subordinations of lien(s) or release from liability any parties who are or may
become liable for the payment of said indebtedness, without affecting the
priority of this lien or the personal liability of the Grantor or any other
party liable or who may become liable for the indebtedness secured by this
instrument. If all or any part of the property hereinabove described becomes
vested in any party other than Grantor, Beneficiary may, without notice to
Grantor, deal with such successor in interest with reference to this instrument
and
10
the debt(s) and obligation(s) hereby secured in the same manner as with the
Grantor, without in any way releasing, vitiating or discharging the Grantor's
liability hereunder or for the debt(s) and obligation(s) hereby secured and
extension(s) of time for payment or other loan treatment(s) described herein
given or permitted by Beneficiary shall not operate to release, vitiate, or
discharge the liability of the Grantor herein, either in whole or in part.
20. BENEFICIARY NON-WAIVER: That the failure of Beneficiary to exercise any
option or make any decision or election under any term or covenant herein
expressed shall not be deemed a waiver of the right to exercise such option or
to make such decision or election at any time.
21. SUCCESSORS & ASSIGNS BOUND: That each covenant and agreement herein
contained shall inure to the benefit of and bind the successors and assigns of
Beneficiary and Grantor.
22. SUBSTITUTE TRUSTEE: Beneficiary may, without notice to any party to
this Deed of Trust and Security Agreement, or to the successors or assigns, and
without regard to the willingness or inability of Trustee to act, or to execute
this trust, appoint another person or succession of persons to act as Trustee
herein, and such appointee or substitute shall have all the title, authority and
powers in the execution of this trust as are vested in Trustee. If Beneficiary
be a corporation such appointment may be made by any one of its officers or
agents. No single exercise of this power of appointment, the power of sale, or
any other power or right given in this Deed of Trust and Security Agreement
shall exhaust the right to exercise such power but all rights and powers herein
given may be exercised as often as may be necessary for the collection of all
amounts secured by this Deed of Trust and Security Agreement until said amounts
are fully paid and discharged. At any sale hereunder, Trustee may from time to
time, adjourn said sale to a later date without re-advertising the sale by
giving notice of the time and place of such continued sale at the time Trustee
shall make such adjournment. And at any sale made to enforce the trust herein
given, Beneficiary or any person in interest may become a purchaser and upon
payment of the purchase price, Trustee shall provide a deed of conveyance by
Special Warranty, which conveyance shall vest full and perfect title in such
purchaser upon payment of the purchase price.
23. LIFE INSURANCE: That in the event Grantor purchases life insurance
(group,
11
credit or other) in connection with this loan but subsequently fails to pay the
premium to keep same in force, the Beneficiary, at its option, may pay such
premium on Grantor's behalf, charge such payment to the loan, and such advance
of premiums shall be secured by this mortgage and bear interest the same as
other advances provided for in this Deed of Trust and Security Agreement. Any
policy evidencing such insurance to be deposited with and any loss thereunder to
be payable to Beneficiary as its interest may appear.
24. FINANCIAL STATEMENT: To furnish to the Beneficiary upon a request a
financial statement and income statement attested to by Grantor or verified by a
public accountant.
25. DEATH OF SIGNATORY: All parties to this deed of trust or to the note
hereby secured covenant and agree that upon the death of any signatory, maker,
or comaker of such note the owner and holder of said note may, at holder's
option, mature or accelerate the entire balance owing on said note whereupon all
amounts owing by virtue thereof shall be immediately due and payable.
26. INSPECTION: The Grantor hereby grants and will cause any tenants to
grant to Beneficiary, its agents, attorneys, employees, consultants,
contractors, successors and assigns, an irrevocable license and authorization
upon reasonable notice to enter upon and inspect the Property and facilities
thereon and perform such tests, including without limitation, subsurface testing
soils and groundwater testing and other tests which may physically invade the
Property thereon, as the Beneficiary, in its sole discretion, determines is
necessary to protect its security interest, provided however, that under no
circumstances shall the Beneficiary be obligated to perform such inspections or
tests. Any such inspections or tests shall be at the sole cost of the Grantor.
27. NONTRANSFERABILITY: Except as provided by regulations of the
Beneficiary neither the property or any portion thereof or interest therein
shall be leased, assigned, sold, transferred, or encumbered, voluntarily or
otherwise, without the prior written consent of the Beneficiary. The Beneficiary
shall have the sole and exclusive rights as Beneficiary hereunder, including but
not limited to the power to grant consents, partial releases, subordinations and
satisfaction, and no insured holder shall have any right, title and interest in
or to the lien or any benefits hereof.
28. ACCELERATION OPTION: If all or any part of the Property or an interest
therein
12
is sold, transferred, encumbered or otherwise disposed of by Grantor without
Beneficiary's prior written consent, Beneficiary may, at Beneficiary's option,
declare all of the obligations to be immediately due and payable. Beneficiary
shall have waived such option to accelerate if, prior to the sale or transfer,
Beneficiary and the person to whom the Property is to be sold or transferred
reach agreement in writing that the credit of such person is satisfactory to
Beneficiary and that the interest payable on the sums secured by the Deed of
Trust and Security Agreement shall be at such rate as Beneficiary shall request
and the party assuming the obligations meets the criteria set out in Title XI
for all borrowers. Regardless of any assumption or transfer of the Property
and/or the obligations arising under the Deed of Trust and Security Agreement,
Grantor will not be released from any obligation to Beneficiary until the entire
debt and all sums associated therewith are paid in full. If Beneficiary
exercises such option to accelerate, Beneficiary shall mail Grantor notice of
acceleration. Such notice shall provide a period of not less than 30 days from
the date of notice is mailed within which Grantor may pay the sums ordered due.
If Grantor fails to pay such sums prior to the expiration of such period,
Beneficiary may, without further notice or demand on Grantor, invoke any
remedies permitted by this Deed of Trust and Security Agreement, or any other
security document associated with this transaction.
29. PAYMENT OF ADVANCES: Now, if Grantor shall pay said indebtedness and
any future advances, additional advances, readvances or any other indebtedness
in addition to the original indebtedness set forth herein, and secured hereby,
and keep and perform all of the covenants and agreements of this deed of trust,
it shall become null and void. 30. FORECLOSURE AND SALE OF THE PROPERTY: This
deed of trust shall be construed to impose and confer upon the parties hereto,
and the Beneficiaries hereunder, all duties, rights and obligations as set forth
in Section 55-59, and 55-59.1 through 55-59.4 and 55-60 of the Code of Virginia
as now in force and (to the extent that any amendment thereof shall not limit
the rights of the Trustees or Beneficiaries hereunder or the obligations of the
Grantor) as hereafter amended; and further to incorporate herein the following
provisions by the short form references below, of Sections 55-59 and 55-59.1
through 55-59.4 and 55-60 of the Code of Virginia:
ADVERTISEMENT REQUIRED: Four times in a newspaper
published or having general circulation in Northumberland County
13
BIDDER'S DEPOSIT: of Ten Percent (10%) may be required.
EXEMPTIONS WAIVED.
SUBJECT TO CALL UPON DEFAULT.
RENEWAL OR EXTENSIONS PERMITTED.
Grantor acknowledges that Beneficiary will have the right to seek a
deficiency judgment in the event of default, sale of the property and
Beneficiary not being made whole from the proceeds of such sale.
31. MULTIPLE COUNTIES: In case the real estate herein described is situated
in more than one county or in more than one judicial district of a county or
counties, a foreclosure sale of all of said real estate may be made in any one
of the counties or judicial districts in which any part thereof is situated,
after giving notice of the time, place and terms of sale in the manner above
described in each county and judicial district in which any part of said land
lies.
32. SURRENDER OF POSSESSION: It is further stipulated and agreed that in
case of any sale hereunder Grantor shall immediately surrender possession to the
purchaser. If Grantor fails to do so, Grantor shall become a tenant at
sufferance of the purchaser, subject to an action for unlawful entry and
detainer.
33. BENEFICIARY'S RIGHT TO BID: It is expressly agreed between the parties
hereto, that in the event of foreclosure and sale, that the Beneficiary
hereunder, or its successors and assigns, may bid at any such sale or sales and
may purchase the property secured hereunder if the high bidder therefor, as if
Beneficiary were a stranger to this conveyance.
34. MAILING ADDRESS: For purposes of giving any notice that may be required
by the terms of this deed of trust, Grantor hereby stipulates and agrees that
his mailing address is X.X. Xxx 0000, Xxxxxxx, Xx 00000 and Beneficiary may rely
upon this stipulation until such time as Beneficiary has been advised in writing
by Grantor of a change of address.
35. SEVERABILITY: The unenforeceability or invalidity of any provision(s)
of this Deed of Trust and Security Agreement shall not render any other
provision(s) herein unenforceable or invalid. This Deed of Trust and Security
Agreement may be amended only by an instrument in writing, signed by Grantor and
Beneficiary, and may not be amended orally or by any course of
14
conduct or otherwise than by written instrument.
All riders, appendages, exhibits, erasures, corrections and
interlineations, if any, have been made and approved before signing hereof.
IN WITNESS WHEREOF, the Grantor has caused its name to be signed hereto and
its corporate seal affixed and attested pursuant to corporate resolutions, which
resolutions have not been rescinded, revoked or modified.
Omega Protein, Inc.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Its Controller/Assistant Treasurer
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
STATE OF
------------------,
CITY/COUNTY OF
------------------,
Personally appeared before me, the undersigned authority in and for said
County and State the within named Xxxxx X. Xxxxx, the Controller/Assistant
Treasurer, and Xxxxxx Xxxxxxxx, the Secretary, Vice President and Chief
Financial Officer of Omega Protein, Inc., who acknowledged that they signed and
delivered the above and foregoing instrument on the day and year and for the
purposes therein mentioned as their own voluntary acts and deeds.
WITNESS my hand and official seal this 19th day of October, 2001.
-------------------------
15
--------------------------------
Notary Public
My commission expires:
-------------------------
NOTARY AFFIX SEAL HERE!
16
EXHIBIT A
To Virginia Real Property Deed of Trust
---------------------------------------
Legal Description
-----------------
All of those eighteen (18) certain lots, pieces or parcels of land,
together with all improvements thereon and all appurtenances thereunto
appertaining, situate, lying and being in Fairfields Magisterial District,
Northumberland County, Virginia, more particularly described as follows:
PARCEL ONE: Containing five and forty-three one-hundredths acres, more or less,
----------
being the same land that was conveyed to Xxxx X. Xxxxxxxx by Xxxxxx Xxxxxx, et
al, by deed bearing date the 16th day of April, 1906, of record in the Clerk's
Office of the Circuit Court of Northumberland County, Virginia, in Deed Book
"Q", at Page 556 and is described therein as follows:
"Beginning at a post on the shore of Xxxxxxxx'x Creek, a corner with the land
this day conveyed to the Xxxxxx Xxxxxx Company by the parties of the first part
and running thence N 26 1/2 E 9.82 chains across point and pond to a post on the
shore of Xxxxxxxx'x Creek, a corner with the land this day conveyed to Xxxxxx
Xxxxxx Company as aforesaid, thence S 89 3/4 E 1.77 chains around the shore of
Xxxxxxxx'x Creek to a post a corner with the "Browns' Point" land; thence S 75
1/8 E. 2.77 chains along the line of said "Xxxxx'x Point" land to a post a
corner with the land this day conveyed by the parties of the first part to Xxxx
X. Xxxxxxxx, thence S 26 1/2 W. 14.59 chains across point to a post in a xxxxx,
a corner with the land this day conveyed to Xxxx X. Xxxxxxxx, as aforesaid, and
a side line with the Haynie Snow Company; thence S. 88 3/4 W 35 chains to a
marked cedar tree; thence N 86 1/4 W 74 chains to a post on the shore of
Xxxxxxxx'x Creek, a corner with the land of the Haynie Snow Company; thence up
and around the shore of Xxxxxxxx'x Creek following the meanderings thereof the
following courses and distances: N 1 W 2.28 chains, N 15 3/8 W 1.11 chains, N 32
7/8 W 1.88 chains to point of beginning."
PARCEL TWO: Containing nine and thirty-five one hundredths acres more or less,
----------
as aforesaid, being the same land that was conveyed to Xxxx X. Xxxxxxxx by
Xxxxxx Xxxxxx, et al, by deed bearing date 16th day of April, 1906, and of
record in the Clerk's Office aforesaid in Deed Book "Q" at Page 558; and is
described therein as follows:
"Beginning at a post in xxxxx, a corner with the land this day conveyed by the
parties of the first part to Xxxx X. Xxxxxxxx and on a side line with the land
of Haynie Snow Company and running thence S 89 3/8 E 8.39 chains along the land
of Haynie Snow Company and Xxxx X. Xxxxxx, to a post; thence N 19 1/2 E 12.86
chains to a post, near corner of barn, and on a side line with the "Browns'
Point" land, thence N 81 1/2 W 6.09 chains along line of "Browns' Point" land to
a post a corner with land this day conveyed by parties of the first part to Xxxx
X. Xxxxxxxx; thence S 26 1/2 W 14.59
17
chains along the line of the land of Xxxx x. Xxxxxxxx to the point of
beginning."
PARCEL THREE: Containing eight and one-half (8 1/2) acres, but was sold and is
------------
hereby conveyed not by the acre, but in gross, be the area thereof however so
much more or however so much less than is above stated, and is bounded as
follows, to-wit: On the north, west and south by the waters of Xxxxxxxx'x Creek,
and on the east by the land formerly of Xxxx X. Xxxxxxxx, and is the identical
lot or tract of land which was conveyed to Xxxxxx X. Xxxxx by deed from
Northumberland Fisheries, Incorporated, bearing date on December 20, 1935,
reference to which said deed and to deeds and papers therein mentioned, is
hereby especially made for a more full and complete description of the lot or
tract of land hereby conveyed.
The said Parcels One, Two and Three are the identical parcels as were conveyed
unto Menhaden Fisheries, Inc., by deed of Menhaden Products Co., Inc. dated
April 27, 1984, duly recorded in the Clerk's Office aforesaid in Deed Book 238,
at Page 33.
PARCEL FOUR: Containing 1.70 acres, be the same however ever so much more or
-----------
less, and being more particularly shown and described as "X.X. Xxxxxx", on that
certain plat of survey entitled, "Boundary Survey of the Land of Reedville Oil
and Guano Company, Incorporated" dated December 29, 1958, made by Xxxxxxx X.
Xxxxxx, Xx., Certified Land Surveyor, which plat was duly filed in the Clerk's
Office aforesaid on February 12, 1959, in Plat Book 1, at Page 186, to which
plat reference is hereby expressly made for a further and more accurate
description of the real estate herein conveyed.
Being the identical property which was conveyed unto Xxxxxx Xxxxxx Corporation
by deed of Xxxx Xxxxxx Xxxxxxxx, et vir, et al, dated March 11, 1975, duly
recorded in the Clerk's Office aforesaid in Deed Book 174, at Page 476.
PARCEL FIVE: Containing one acre by estimation, be the same ever so much more or
-----------
less, being more particularly shown and described in part as "X.X. Xxxx" on the
aforesaid plat of survey entitled, "Boundary Survey of the land of Reedville Oil
and Guano Company, Incorporated", and being further described with reference to
a plat of survey entitled, "Boundary Survey of the Land of Xxxxxx Xxxxxx
Corporation" dated January 23, 1975, made by Xxxxxx X. Xxxxxx, Certified Land
Surveyor, as follows: Beginning at a pipe along the center line of a ravine or
xxxxx, a corner with land of Xxxxxx Xxxxxx Corporation; thence North 06 degrees
41' 43" East along the line of Xxxxxx Xxxxxx Corporation a distance of 227.20
feet to a pipe, thence South 87 degrees 15' 37" West along line of Xxxxxx Xxxxxx
Corporation a distance of 204.42 feet to a pipe; thence South 88 degrees 37' 37"
East along the land of Xxxxxx Xxxxxx Corporation a distance of 136.53 feet to a
pipe; thence South 22 degrees 08' 37" East along the land of Xxxxxx Xxxxxx
Corporation a distance of 90.47 feet to a pipe in the center of a xxxxx or
ravine; thence South 42 degrees 27' 23" West along the center line of the xxxxx
or ravine to a point in a pond; thence South 80 degrees 17' 53" West along the
approximate center line of the pond, xxxxx or ravine to a pipe, the point of
beginning, said parcel being shown as "X.X. Xxxxx" on said plat.
Being the identical property which was conveyed unto Xxxxxx Xxxxxx Corporation
by deed of
18
Xxxxxxx Xxxxxx Xxx, Jr., et ux, et al, dated December 30, 1982, duly recorded in
-- -- -- --
Deed Book 226, at Page 441 in the Clerk's Office aforesaid.
PARCEL SIX: Containing 16.6 acres, but conveyed in gross and not by the acre, as
----------
is more fully shown on the plat of survey prepared by Xxxxxxx X. Xxxxxx, Xx.,
Certified Land Surveyor, dated May 23, 1978, entitled, "Boundary Survey of
Xxxxxx Xxxxxx Corp." which plat is duly recorded in the Clerk's Office aforesaid
in Deed Book 196, at Pages 560, 561, reference to which is hereby expressly made
for a further and more accurate description of the real estate herein conveyed.
Together with a right of way along the existing private road extending from the
southeasterly corner of the property described as Parcel Six to Virginia State
Highway Route No. 659, for purposes of ingress and egress to and from the
property herein conveyed and the State Highway.
Being the identical property which was conveyed unto Xxxxxx Xxxxxx Corporation
by deed of Xxxxx Xxxx Xxxxxx and Xxxx X. Xxxxxx, husband and wife, dated May 25,
1978, duly recorded in the Clerk's Office aforesaid in Deed Book 196, at Page
558.
PARCEL SEVEN: Containing 16.837 acres, be the same however so much more or less,
------------
this conveyance being made in gross and not by the acre, and being more
particularly shown and described as Parcels "B" and "C" containing 0.187 acres
and 16.65 acres respectively, on that certain plat of survey entitled, "Plat of
3 Parcels of land Located about 0.77 of a Mile South of Tibitha, in the
Fairfield District, Northumberland County, Virginia", made by Xxxxxx X. Xxxxxxx,
Certified Land Surveyor, dated March 31, 1978, revised April 11, 1978, duly
recorded in the Clerk's Office aforesaid in Deed Book 197, at Page 214,
reference to which plat is hereby made for a further and more accurate
description of the real estate herein conveyed.
This conveyance is made expressly subject to all easements, restrictions,
covenants and conditions of record to the extent that they may lawfully affect
the property hereby conveyed, including, without limitation, the easement of
right of way for Virginia State Highway Route No. 684, as the same is shown on
the aforesaid plat.
Being in part a portion of the property which was conveyed unto Xxxxxx Xxxxxx
Corporation by deed of Xxxxxx X. Xxxx, Xx., and Xxxxxxx Best Xxxx, husband and
wife, dated April 24,1978, duly recorded in Deed Book 196, at Page 216, together
with that certain small portion of land acquired in a certain deed of exchange
dated May 8, 1978, by and between Xxxxxx Xxxxxx Corporation and Xxxx X. Xxxxx
and Xxxxxxx X. Xxxxx, husband and wife, duly recorded in Deed Book 197, at Page
210.
PARCEL EIGHT: Containing approximately 14.53 acres, be the same however ever so
------------
much more or less, this conveyance being made in gross and not by the acre, and
being all that remains of a certain 21.74 acre tract more particularly shown and
described on a certain plat of survey entitled, "Boundary Survey of the Land of
Reedville Oil and Guano Company, Incorporated", dated January 12, 1966, duly
recorded in the Clerk's Office aforesaid in Deed Book 131, at Page 250-A, LESS
19
AND EXCEPT HOWEVER that certain 7.2122 acre tract conveyed to Reedville Sanitary
District by deed of Xxxxxx Xxxxxx Corporation dated September 23, 1977, duly
recorded in the Clerk's Office aforesaid in Deed Book 210, at Page 344.
Being the designated portion of that certain real estate which was conveyed unto
Reedville Oil & Guano Company, Incorporated by deed of Xxxx Xxxxxxxxx Xxxxx, et
ux, dated February 4, 1966, duly recorded in Deed Book 131, at Page 249, in the
Clerk's Office aforesaid.
PARCEL NINE: Containing 2.400 acres as more particularly shown and described on
-----------
that certain plat of survey entitled, "Boundary Survey of the Land of Xxxxxx
Products, Inc.", dated October 24, 1972, made by Xxxxxx X. Xxxxxx, Certified
Land Surveyor, a copy of which plat of survey is duly recorded in the Clerk's
Office aforesaid in Deed Book 162, at Page 342-A, reference to which plat is
hereby expressly made for a further and more accurate description of the real
estate herein conveyed.
Being the identical property which was conveyed unto Xxxxxx Products, Inc., by
deed of Xxxxx X. Xxxxxx, widow, dated December 22, 1972, duly recorded in Deed
Book 162, at Page 341, in the Clerk's Office aforesaid.
PARCEL TEN: Containing 10.8 acres, be the same however ever so much more or
----------
less, the same being conveyed in gross and not by the acre, and being more
particularly shown and described on a certain plat of survey made by Xxxxxxx X.
Xxxxxx, Xx., Certified Land Surveyor, dated December 11, 1958, a copy of which
plat of survey is duly recorded in the Clerk's Office aforesaid in Plat Book 1,
at Page 178, reference to which plat of survey is hereby expressly made for a
further and more accurate description of the real estate herein conveyed.
Together with a perpetual easement of right of way over, upon and across the
twenty (20) foot right of way as shown on the aforesaid plat lying along the
southeasterly boundary of the property hereby conveyed.
Being the identical property which was conveyed unto Reedville Oil & Guano
Company, Incorporated, by deed of Xxxx Xxxxxxxxx Xxxxx and Xxxxxx XxXxxxxx
Xxxxx, husband and wife, dated December 26, 1958, duly recorded in the Clerk's
Office aforesaid in Deed book 109, at Page 267.
PARCEL ELEVEN: Containing 4.6 acres, be the same however ever so much more or
-------------
less, this conveyance being made in gross and not by the acre, and being more
particularly shown and described as "Lot 9" surveyed January 26, 1959, on a
certain plat of survey entitled, "Boundary Survey of the Land of Reedville Oil &
Guano Company, Incorporated", made by Xxxxxxx X. Xxxxxx, Xx., Certified Land
Surveyor, dated January 31, 1959, a copy of which plat of survey is duly
recorded in the Clerk's Office aforesaid in Plat Book 1, at Page 185, reference
to which plat is hereby expressly made for a further and more accurate
description of the real estate herein conveyed.
20
Together with and subject to a certain twenty (20) foot wide easement of right
of way leading from Virginia State Highway Route No. 659, as shown on the said
plat of survey, the use of which right of way shall be in common with all others
lawfully entitled to the use thereof.
Being the identical property which was conveyed unto Reedville Oil & Guano
Company, Incorporated by deed of Xxxxxx Xxx Xxxxxxx, widow, dated January 31,
1959, duly recorded in the Clerk's Office aforesaid in Deed Book 109, at Page
342.
PARCEL TWELVE: Containing 2.6 acre, be the same however ever so much more or
-------------
less, this conveyance being made in gross and not by the acre, and being more
particularly shown and described as "Lot 1", on that certain plat of survey
entitled, "Boundary Survey of the Land of Reedville Oil & Guano Company,
Incorporated", made by Xxxxxxx X. Xxxxxx, Xx., Certified Land Surveyor, dated
December 29, 1958, filed in the Clerk's Office aforesaid on February 12, 1959,
in Plat Book 1, at Page 186, reference to which plat of survey is hereby
expressly made for a further and more accurate description of the real estate
herein conveyed.
Being the identical property which was conveyed unto Reedville Oil & Guano Co.,
Incorporated, by deed of Seaboard Oil and Guano Company, Incorporated, dated
March 17, 1913, duly recorded in the Clerk's Office aforesaid in Deed Book W, at
Page 247.
PARCEL THIRTEEN: Containing 4.34 acres, be the same however ever so much more or
---------------
less, this conveyance being made in gross and not by the acre, and being more
particularly shown and described as "Lot 2", on that certain plat of survey
entitled, "Boundary Survey of the Land of Reedville Oil & Guano Company,
Incorporated", made by Xxxxxxx X. Xxxxxx, Xx., Certified Land Surveyor, dated
December 29, 1958, filed in the Clerk's Office aforesaid on February 12, 1959 in
Plat Book 1, at Page 186, reference to which plat of survey is hereby expressly
made for a further and more accurate description of the real estate herein
conveyed.
Being the identical property which was conveyed unto Reedville Oil & Guano
Company, Incorporated, by deed of Xxxxxxx X. Xxxxxx, et ux, et al, dated
February 23, 1931, duly recorded in the Clerk's Office aforesaid in Deed Book
KK, at Page 64.
PARCEL FOURTEEN: Containing .69 of an acre and more particularly shown and
---------------
described as "Lot 3" on that certain plat of survey entitled, "Boundary Survey
of the Land of Reedville Oil & Guano, Incorporated", dated December 29, 1958,
made by Xxxxxxx X. Xxxxxx, Xx., Certified Land Surveyor, which plat of survey
was filed in the Clerk's Office aforesaid on February 12, 1959 in Plat Book 1,
at Page 186, reference to which plat of survey is hereby expressly made for a
further and more accurate description of the real estate herein conveyed.
Being the identical property which was conveyed unto Reedville Oil & Guano
Company, Incorporated be deed of Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx, his wife,
dated January 5, 1934, duly
21
recorded in Deed Book LL, at Page 196 in the Clerk's Office aforesaid.
PARCEL FIFTEEN: Containing 1.86 acres and more particularly shown and described
--------------
as "Lot 4" on that certain plat of survey entitled, "Boundary Survey of the Land
of Reedville Oil & Guano Company, Incorporated", dated December 29, 1958, made
by Xxxxxxx X. Xxxxxx, Xx., Certified Land Surveyor, a copy of which plat of
survey was filed for record in the Clerk's Office aforesaid on February 12,
1959, in Plat Book 1, at Page 186, reference to which plat of survey is hereby
expressly made for a further and more accurate description of the real estate
herein conveyed.
Being the designated parcel conveyed unto Reedville Oil & Guano Company,
Incorporated, by deed of Xxxx Xxxxxx Page, widow, et al; dated December 4, 1951,
duly recorded in the Clerk's Office aforesaid in Deed Book 96, at Page 169.
PARCEL SIXTEEN: Containing 3.17 acres and more particularly shown and described
--------------
as "Lot 5" on that certain plat of survey entitled, "Boundary Survey of the Land
of Reedville Oil & Guano Company, Incorporated", dated December 29, 1958, made
by Xxxxxxx X. Xxxxxx, Xx., Certified Land Surveyor, filed for record in the
Clerk's Office aforesaid on February 12, 1959 in Plat Book 1, at Page 186,
reference to which plat of survey is hereby expressly made for a further and
more accurate description of the real estate herein conveyed.
Being the designated tract which was conveyed unto Reedville Oil & Guano
Company, Incorporated, by deed of Xxxx Xxxxxx Page, widow, et al, dated December
4, 1959, duly recorded in the Clerk's Office aforesaid in Deed Book 96, at Page
169.
PARCEL SEVENTEEN: Containing 1.75 acres and more particularly shown and
----------------
described as "Lot 6" on that certain plat of survey entitled, "Boundary Survey
of the Land of Reedville Oil and Guano Company, Incorporated", dated December
29, 1958, made by Xxxxxxx X. Xxxxxx, Xx., Certified Land Surveyor, filed for
record in the Clerk's Office aforesaid on February 12, 1959, in Plat Book 1, at
Page 186, reference to which plat of survey is hereby expressly made for a
further and more accurate description of the real estate herein conveyed.
Being the identical property which was conveyed unto Reedville Oil & Guano
Company, Inc. by deed of Xxxxxxx X. Xxxxxx, et ux, dated October 28, 1954, duly
recorded in Deed Book 100, at Page 495 in the Clerk's office aforesaid.
PARCEL EIGHTEEN: Containing 2.67 acres, being more particularly shown and
---------------
described as "Lot 7" on that certain plat of survey entitled, "Boundary Survey
of the Land of Reedville Oil & Guano Company, Incorporated", dated December 29,
1958, made by Xxxxxxx X. Xxxxxx, Xx., Certified Land Surveyor, filed for record
in the Clerk's Office aforesaid on February 12, 1959, in Plat Book 1, at Page
186, reference to which plat of survey is hereby expressly made for a further
and more accurate description of the real estate herein conveyed.
22
Being the identical property which was conveyed unto Reedville Oil & Guano
Company, Incorporated, by deed of Xxxx Xxxxxxx Xxxxxxxxx, et ux, dated July 16,
1954, duly recorded in Deed Book 101, at Page 56, in the Clerk's Office
aforesaid.
Parcels One through Eighteen hereinabove described are conveyed expressly
subject to all easements, conditions, covenants and restrictions of record to
the extent they may lawfully affect the subject property.
Reedville Oil & Guano Company, Incorporated had its name changed to Xxxxxx
Products, Inc. as more particularly set forth in a certain set of Articles of
Amendment dated January 24, 1968, duly recorded in Charter Book 3, at Page 347
in the Clerk's Office aforesaid. Xxxxxx Xxxxxx Corporation was the successor by
merger to Xxxxxx Products, Inc., and Menhaden Fisheries, Inc. Xxxxxx Xxxxxx
Corporation had its name changed to Xxxxxx Protein (USA), Inc. as more
particularly set forth in a certain set of Articles of Amendment dated March 31,
1994, recorded in the Clerk's Office aforesaid in Charter Book 5, at Page 401.
Xxxxxx Protein (USA). Inc. had its name changed to Omega Protein, Inc., as more
particularly set forth in a certain set of Articles of Amendment dated March 4,
1998, recorded in the Clerk's Office of the State Corporation Commission for the
Commonwealth of Virginia.
23
