Credit Line Deed of Trust For

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 DOUGHTIE'S FOODS, INC., a Virginia corporation (herein, whether one or more, referred to as "Grantor"), DAVID A. DURHAM, and DAVID SINGLETON, 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 500 East Main Street, Norfolk, Virginia 23510, Attention: Bruce W. Nave. 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 2415 Wesley Street, and 149 Chautauqua Avenue, Portsmouth, Virginia 23707, 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 ("SARA"), 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 ...