ex49.htm


    Exhibit
4.9

     

     

    THIRD
PARTY

    DEED
OF TRUST, ASSIGNMENT AND SECURITY AGREEMENT

     

    THIS
THIRD PARTY DEED OF TRUST, ASSIGNMENT AND SECURITY AGREEMENT
(“Deed of Trust”), dated as of                      
, 2008, among LEE OIL
COMPANY, INC., a Virginia
corporation (“Grantor”),                                                                 
(“Trustee”),
and CHOICE FINANCIAL GROUP,
a North Dakota state bank (“Beneficiary”), recites and
provides:

     

    WHEREAS,
Grantor is the owner of fee simple title to certain real estate (including all
improvements thereon and all easements and other real property rights belonging
thereto) located in the Commonwealth of Virginia (the “Premises”), and more
particularly described on Exhibit A attached hereto.

     

    WHEREAS,
Heartland, Inc., a Maryland corporation (“Borrower”) is the maker of a certain
Promissory Note of even date herewith (the “Note”), payable to the order of
Beneficiary, evidencing a loan (the “Loan”) in the principal amount of
$3,250,000.00, with interest and payable as stated therein. The Note is made
pursuant to a Loan Agreement of even date herewith (the “Loan Agreement”),
between Borrower and Beneficiary and is secured by, among other things, this
Deed of Trust and a security agreement of even date herewith (the “Security
Agreement”), between Grantor and Beneficiary, and financing statements naming
Grantor, as debtor and Beneficiary, as secured party (the “Financing
Statements”). The Note is also secured by a Guaranty of even date herewith (the
“Guaranty”). The Loan Agreement, the Note, this Deed of Trust, the Guaranty, the
Security Agreement, the Financing Statements and all other documents and
instruments evidencing and securing the indebtedness evidenced by the Note are
sometimes hereinafter referred to collectively as the “Loan
Documents.”

     

    WHEREAS,
the Loan is also secured by a lien on certain real property owned by Grantor and
located in the Commonwealth of Virginia.

     

    
      
        
        

      

      
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    THIRD
PARTY

    DEED OF TRUST, ASSIGNMENT
AND SECURITY AGREEMENT:

     

    For and
in consideration of Beneficiary making the Loan to Borrower, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, this Deed of Trust provides as follows:

     

    1.             GRANTING OF LIEN.
Grantor hereby grants and conveys the Premises to the Trustee, with
general warranty of title but subject to all easements, conditions and
restrictions of record insofar as they may lawfully affect the Premises as
listed in Exhibit B attached hereto (the “Permitted Encumbrances”).

     

    TOGETHER
WITH (i) all improvements now or hereafter erected on the Premises (the
“Improvements”); (ii) all carpeting, drapes, curtains, furnishings, appliances,
furniture, floor covering, maintenance equipment, cleaning equipment,
construction materials, fences, dynamos, partitions, lighting, heating,
ventilating, air-conditioning, air and water cooling equipment, sprinkling and
plumbing fixtures, water and power systems, engines and machinery, boilers,
water heaters, stoves, ranges, ovens, dishwashers, all kitchen equipment,
utensils, dishes, mirrors and mantels, furnaces, oil burners, elevators and
motors, refrigerators, refrigeration plants or units, communications systems,
transformers, electrical equipment, doors, storm and screen doors and windows,
awnings and shades, parking lot lighting, trees, bushes and shrubs, and other
equipment or fixtures owned by Grantor for location upon and use in the
operation of the Improvements on the Premises of every description now owned or
hereafter acquired; (iii) all additions, accessions, increases, parts, fittings,
accessories, replacements, substitutions, betterments, repairs and proceeds of
or to any or all of the foregoing; (iv) all rights, privileges, hereditaments,
easements, appurtenances, rents, insurance and condemnation proceeds, issues,
profits, royalties and mineral, oil and gas rights now and hereafter in any way
belonging or pertaining to the Premises or any Improvement thereon; (v) all of
Grantor’s right, title and interest in and to any lease contract covering
equipment or furnishings, or both, found in or about or appurtenant to, or used
in connection with the use, operation or maintenance of, the Land or any
building, structure or Improvement located thereon; and (vi) specifically
excluding any trade fixtures owned by tenants, if any, of Grantor.

     

    IN TRUST
to secure the payment of the Note, together with any and all renewals,
replacements, extensions, substitutions, modifications and consolidations
thereof, and the payment of all sums under and, the performance of the covenants
contained in, the Loan Documents and any modifications of the Loan
Documents.

     

    2.             ASSIGNMENT.

     

    (a) Leases. To further
secure payment of the Note and the performance by Borrower and Grantor of its
other obligations under the Loan Documents and hereunder, Grantor hereby
assigns, transfers and sets over to Beneficiary all leases and other contracts
(the “Leases”) of or relating to the Premises, whether now existing or hereafter
entered into and all rents, income, revenue, issues and profits (the “Rents and
Profits”) now or
hereafter arising from the Premises; provided however, that until the occurrence
of an “Event of Default” (as hereinafter defined) and the election of
Beneficiary to collect the Rents and Profits after such Event of Default,
Grantor shall have a license (revocable by Beneficiary upon the occurrence of an
Event of Default) to collect and dispose of the Rents and Profits without
restriction, and provided further that this assignment shall not impose on
Trustee or Beneficiary any of Grantor’s obligations under such Leases and
contracts.

     

    
      
        
        

      

      
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    (b) Contracts. To further
secure payment of the Note and the performance by Borrower and Grantor of its
other obligations under the Loan Documents and hereunder, Grantor further
assigns all insurance policies, contracts, permits, licenses or plans now or
hereafter pertaining to, affecting or concerning the Premises including, without
limitation, all rights accruing to Grantor from any and all contracts with all
contractors, architects, engineers, managers, subcontractors or others relating
to the design, development, construction, use, enjoyment, occupancy or operation
of the improvements on or upon the Premises, including performance and
materialmen’s bonds and any other related items.

     

    Notwithstanding
the provisions of Paragraph 2(b), Grantor assigns no policies, contracts,
permits, licenses or plans that, as a matter of law, are not transferable or
assignable.

     

    3.             SECURITY AGREEMENT.
This Deed of Trust shall serve as a security agreement in accordance with
the applicable provisions of the Uniform Commercial Code as adopted by the
Commonwealth of Virginia (the “UCC”). As to all personalty granted under this
Deed of Trust, Beneficiary shall have all of the rights and remedies of a
secured party under the UCC. The recordation of this Deed of Trust shall also
constitute a fixture filing in accordance with the applicable provisions of the
UCC.

     

    4.             REPRESENTATIONS, WARRANTIES
AND COVENANTS. Grantor makes the following representations, warranties
and covenants (and acknowledges that Beneficiary has relied upon those
representations, warranties and covenants in making the Loan):

     

    (a)           Deleted.

     

    (b)           Deleted.

     

    (c)           Deleted.

     

    (d)          
Secondary Financing
Prohibited. Grantor shall not pledge, mortgage or encumber the Premises,
or any part thereof or any interest therein, without the prior written consent
of the Beneficiary.

     

    (e)           Transfer of Premises or
Interest in Grantor Prohibited. Grantor shall not sell, convey, transfer,
assign or permit any sale, conveyance, transfer or assignment of the Premises or
any part thereof or interest therein, by operation of law or otherwise, without
the prior written consent of Beneficiary.

     

    
      
        
        

      

      
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    (f)            Leases. Grantor
represents and warrants that Grantor shall duly and punctually perform all of
the terms, conditions and covenants contained in the Leases to be kept, observed
and performed by Grantor; that Grantor shall not sell, assign, transfer,
mortgage or pledge any of the Rents and Profits, except as set forth in this
Deed of Trust; and that no Rents or Profits becoming due subsequent to the date
hereof have been collected, nor has payment of any of the same been anticipated,
waived, released, discounted or otherwise discharged or compromised. Grantor
agrees to act in good faith to enforce or secure the performance of each and
every obligation, covenant, condition and agreement to be performed by the
tenants under the Leases. Grantor shall not, except with the prior written
consent of Beneficiary, cancel, terminate or accept any surrender of the Leases;
accept any prepayments for more than 30 days of installments of rent under any
of the Leases; modify any of the terms, covenants and conditions of any of the
Leases so as to reduce the terms thereof or the rental payments thereunder;
enter into any new Leases of the Premises or any part thereof or change any
renewal privileges contained in any of the Leases; agree in writing or otherwise
to extinguish or limit any rights which it has under applicable law as a
landlord against any tenant under any of the Leases. Notwithstanding the
provisions of this paragraph 4(f), Grantor may enter into new Leases in the
ordinary course of business for such portions of the Premises which are leased
as of the date hereof provided such Leases are on terms and conditions that are
customary and usual in leases of similar premises in the general vicinity of the
affected portion of the Premises, and may, in accordance with sound business
practices and for the purpose of increasing Grantor’s revenues, terminate
(provided such termination is permitted under the terms of the applicable lease)
or modify any of the Leases.

     

    (g)           Good Condition.
Grantor shall maintain the Premises and all other property (real or
personal) subject to this Deed of Trust in good condition and repair and shall
keep the appearance of the Premises attractive. Grantor shall not materially
alter or demolish any building or other improvements on the Premises or any part
thereof without the prior written consent of Beneficiary, in its sole
discretion, and shall not commit or suffer any waste to the Premises or any part
thereof and shall comply with all statutes, ordinances and requirements of any
governmental authority relating to the Premises or any part thereof, or the
Grantor’s operations thereon. Beneficiary may, at any time, cause an inspection
to be made of the Premises or any part thereof by its representatives, and such
representatives shall be permitted reasonable access to the Premises and every
part thereof. If any such inspection shows the reasonable need of restoration,
repairs or maintenance and the Beneficiary makes demand therefor, the Grantor
shall proceed within 10 days after such demand has been made to effect such
restoration, repairs and maintenance and shall expeditiously complete the same
in a good and workmanlike manner to the satisfaction of the Beneficiary, free
and clear of all mechanics’ and materialmen’ s liens.

     

    (h)           Insurance. Grantor
shall maintain all risk insurance, public liability and indemnity insurance,
hazard insurance, business interruption insurance and insurance against such
other hazards as Beneficiary may require, in its sole discretion, naming
Beneficiary as an additional insured, in amounts, with insurers and under forms
of policies
(including standard noncontributing mortgagee clause unless otherwise required)
satisfactory to the Beneficiary, in its sole discretion; shall deliver all such
policies and, at least 30 days prior to their expiration dates, all renewals
thereof to Beneficiary; and shall pay all premiums thereon. All such policies
shall provide for 30 days’ written notice to Beneficiary prior to cancellation.
Upon request by Beneficiary, if not paid by Borrower, Grantor shall pay to
Beneficiary, in addition to all other amounts payable hereunder and under the
Note, on the first day of each month, an amount equal to one-twelfth of the
annual premiums for such insurance to be held by Beneficiary in a non-interest
bearing account for the payment of such premiums. Grantor shall not permit any
condition to exist on the Premises which would wholly or partially invalidate
the insurance thereon. Beneficiary may on behalf of Grantor adjust and
compromise any claims under such insurance and collect and receive proceeds
thereof and is hereby irrevocably appointed attorney-in-fact for Grantor for
such purposes. All Grantor’s rights, title and interest in and to all such
policies are hereby assigned to Beneficiary, including unearned premiums on such
policies. All proceeds from all insurance policies are absolutely assigned to
Beneficiary and shall be made payable and delivered to Beneficiary for payment
of any amounts owed by Borrower or Grantor to Beneficiary under any of the Loan
Documents. Beneficiary shall not be obligated to see to the proper application
of any amount paid over to Grantor and shall not be held responsible for any
failure to collect any insurance proceeds due under the terms of any policy,
regardless of the cause of such failure.

     

    
      
        
        

      

      
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    (i)             Liens. Grantor shall
keep the Premises free from liens which may have priority over the lien of this
Deed of Trust, except liens for taxes not yet due and payable. Grantor shall pay
all taxes and assessments levied against or which constitute liens on the
Premises when they are due, but Grantor may appropriately and in good faith
contest the levy of any such tax or assessment provided that it makes whatever
provision for the protection of the Premises, including the payment of such tax
or assessment, that Beneficiary may require. Receipts evidencing payment of any
real estate tax or assessment that, if unpaid, would be past due that would
constitute a lien or an inchoate lien on the Premises shall be delivered to the
Beneficiary within 10 days of the Beneficiary’s request therefor. Upon request
by Beneficiary, if not paid by Borrower, Grantor shall pay to Beneficiary, in
addition to all other amounts payable hereunder and under the Note, on the first
day of each month, an amount equal to one-twelfth of the annual real estate
taxes on the Premises to be held by Beneficiary in a non-interest bearing
account for the payment of such taxes.

     

    (j)             Books and Records.
Grantor shall maintain full and correct books and records in accordance
with generally accepted accounting principles showing in detail the earnings and
expenses relating to the Premises and each part thereof and shall permit
representatives of Beneficiary to examine such books and records and all
supporting vouchers and data at any time and from time to time as Beneficiary
may reasonably request at the affected portion of the Premises or at such other
place in the vicinity of the affected portion of the Premises as such books and
records are customarily kept.

     

    (k)            Condemnation. In the
event that any proceedings to take the Premises or any part
thereof by exercise of the power of eminent domain are undertaken or threatened,
Grantor shall give Beneficiary prompt notice thereof. Any award made to Grantor
shall be paid to Beneficiary, and Grantor hereby appoints Beneficiary its
attorney-in-fact to receive and give all appropriate discharges for any such
award. Any such award may, at the option of Beneficiary, be (i) applied to (A)
the prepayment of the principal of the Note in inverse order of maturity of any
installments thereof or (B) the payment of accrued interest, if any, and other
costs under the Loan Documents, or (ii) released to Grantor in whole or in part
upon conditions satisfactory to Beneficiary, in its sole discretion. Grantor
hereby assigns all of Grantor’s rights, title and interest in and to all such
awards to Beneficiary.

     

    
      
        
        

      

      
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    (l) Indemnity. Grantor
shall protect, defend, indemnify and save harmless Trustee and Beneficiary from
and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, attorneys’ fees and
expenses) imposed upon or incurred by or asserted against Trustee or Beneficiary
by reason of (i) any failure on the part of Grantor to perform or comply with
any of the covenants or conditions of this Deed of Trust; or (ii) the
performance of any labor or services and furnishing of any materials or other
property with respect to the Premises or any part thereof; or (ii) any alleged
obligation or undertaking on Grantor’s part to perform or discharge any of the
terms, covenants and conditions contained in any of the Leases; or (iii) any
accident, injury to or death of persons or loss of or damage to property
occurring on or about the Premises or any part thereof. Any amounts payable to
Beneficiary under this paragraph which are not paid within 10 days after written
demand therefor by Beneficiary shall bear interest at the interest rate provided
in the Note. In the event any action, suit or proceeding is brought against
Trustee or at the request of Beneficiary by reason of any such occurrence,
Grantor, upon the request of Beneficiary, will at Grantor’s expense resist and
defend such action, suit or proceeding or will cause the same to be resisted and
defended by counsel designated by Grantor and approved by Beneficiary.
Grantor’s obligations to defend, indemnify and hold Beneficiary harmless
hereunder shall survive payment of the Loan, and all other amounts owed under
the Loan Documents and satisfaction or foreclosure of this Deed of
Trust.

     

    5.             
EVENT OF DEFAULT.
Each of the following shall be an event of default (an “Event of
Default”) hereunder:

     

    (a) If any
payment under the Note is not made on the due date and in the manner
specified therein.

     

    (b) If any
representation made by Grantor in this Deed of Trust is untrue in any material
respect, or if Grantor fails to comply with any warranty or covenant set forth
in this Deed of Trust, and such default continues for fifteen (15) days after
Beneficiary has given Grantor written notice thereof (or, if such default cannot
reasonably be cured within such 15-day period, then such longer period as is
required to cure the default, but in no event more than forty-five (45)
days).

     

    (c) If a
default occurs under any of the Loan Documents, after expiration of the
applicable cure period, if any.

     

    
      
        
        

      

      
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    6.            
REMEDIES.

     

    (a)             Acceleration; Possession;
Sale by Trustee. Upon the occurrence of an Event of Default, Beneficiary
may, at its option and without further notice (unless specifically required by
applicable law), declare the Note immediately due and payable and have Trustee
(or another person or entity designated by the Beneficiary) take possession of
the Premises or any part thereof and proceed to sell the Premises or any part
thereof, as a whole or in parcels, at public auction, for cash or credit and
upon such other terms Trustee shall deem appropriate. Before such sale at public
auction is made, there shall first be advertisement of the time, place and terms
of sale at least four times in some newspaper published or having a general
circulation in the County or City in which the Premises or any part thereof is
located, and there shall be given, at least fourteen (14) days prior to such
sale, written notice of the time, place and terms of sale by certified or
registered mail to the then owner of the Premises or any portion thereof at its
last known address, as such owner and address appear on the records of
Beneficiary. Beneficiary may become the purchaser of the property so sold and no
purchaser shall be required to see to the proper application of the purchase
money, except as otherwise provided in section 58.1-3340 of the Code of Virginia
(1950), as amended. The proceeds of any such sale shall be applied in accordance
with the provisions of Section 55-59.4 of the Code of Virginia (1950), as
amended.

     

    (b)             Surrender of the Premises;
Right to Operate. Upon any Event of Default, Trustee (or other person or
entity designated by the Beneficiary), at the request of Beneficiary, shall have
the absolute right to enter the Premises or any part thereof and take possession
thereof, and Grantor agrees to surrender the Premises or any part thereof
promptly upon demand. Trustee (or such other designee) shall have all rights
necessary to operate the Premises or any part thereof (either by themselves or
through agents appointed by them), including but not limited to the
following:

     

    (i) manage
and operate the Premises, or any part thereof;

     

    (ii) lease any
part or parts of the Premises for such periods of time, and upon such terms and
conditions as Trustee may, in their discretion, deem proper;

     

    (iii) enforce
any of the Leases;

     

    (iv) demand,
collect, sue for, attach, levy, recover, receive, compromise and adjust, and
make, execute and deliver receipts and releases for all Rents and Profits that
may then or may thereafter become due, owing or payable with respect to the
Premises, or any part thereof, from any present or future lessees, tenants,
subtenants or occupants thereof;

     

    (v)
institute, prosecute to completion or compromise and settle, all summary
proceedings and actions for rent or for removing any and all lessees, tenants,
subtenants or occupants of the Premises or any part or parts
thereof;

     

    
      
        
        

      

      
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    (vi) enforce
or enjoin or restrain the violation of any of the terms, provisions
and conditions of any of the Leases;

     

    (vii) make such
repairs and alterations to the Premises or any part thereof as Trustee (or such
other designee of the Beneficiary) may in their discretion, deem
proper;

     

    (viii) pay from
and out of the Rents and Profits collected or from or out of any other funds
except tenant’s security deposits under the Leases, insurance premiums and any
taxes, assessments, water rates, sewer rates, or other governmental charges
levied, assessed or imposed against the Premises, or any portion thereof, and
also any and all other charges, costs and expenses which it may deem necessary
or advisable for Trustee to pay in the management or operation of the Premises
or any part thereof including (without limiting the generality of any rights,
powers, privileges and authority hereinbefore or hereinafter conferred) the
costs of such repairs and alterations, commissions for renting the Premises, or
any portions thereof, and legal expenses in enforcing claims, preparing papers
or for any other services that may be required; and

     

    (ix) generally,
do, execute and perform any other act, deed, matter or thing whatsoever that
ought to be done, executed and performed in and about or with respect to the
Premises, or any part thereof, as fully as Grantor might do.

     

    (c)             Personal Property.
Upon any Event of Default in the performance of the covenants contained
herein, Beneficiary, pursuant to the UCC, shall have the option of proceeding as
to both real and personal property in accordance with its rights and remedies in
respect of the real estate. The parties agree that, in the event Beneficiary
elects to proceed with respect to personal property separately from the real
property, the requirement of the UCC as to reasonable notice of any proposed
sale or disposition of the personal property shall be met if such notice is
mailed to Grantor at least ten (10) days prior to the time of such sale or
disposition.

     

    (d)             Right to Cure. Upon
any Event of Default in the performance of the covenants contained herein,
Beneficiary shall have the right, but shall not be obligated, to enter the
Premises, or any part thereof, if necessary, and cure any default in regard to
the Premises, or any part thereof, and all costs thereof shall be secured by
this Deed of Trust and shall be paid, together with interest thereon at the
interest rate specified in the Note, by Grantor to the Beneficiary upon demand
therefor. The performance of any such covenant by Beneficiary, however, shall
not be deemed a waiver of default.

     

    (e)             Remedies Cumulative.
No right, power or remedy conferred upon or reserved to Beneficiary or
the Trustee by this Deed of Trust is intended to be exclusive of any other
right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.

     

    
      
        
        

      

      
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    7.             TRUSTEE. All
reasonable expenses, charges, counsel fees and other disbursements incurred by
Trustee in and about the administration and execution of the trust hereby
created, and the performance of their duties and powers hereunder, shall be
secured by this Deed of Trust, and shall bear interest at the same interest rate
set forth in the Note. Trustee may exercise all the rights and powers of the
Trustee hereunder. Pursuant to the provisions of Section 26-49 of the Code of
Virginia (1950), as amended, or any successor provision, Beneficiary, with or
without cause, is hereby authorized and empowered to substitute and appoint, by
an instrument recorded wherever this Deed of Trust is recorded, a trustee in the
place of any of the trustees hereunder.

     

    8.             RELEASE. Grantor
shall have no right to demand and obtain from Trustee a release of any portion
of the Premises from the lien of this Deed of Trust except by the payment in
full of the Note and all other amounts owed to Beneficiary under this Deed of
Trust and/or any of the Loan Documents.

     

    9.            
HAZARDOUS
SUBSTANCES.

     

    (a)             Condition of Premises.
To the best of Grantor’s knowledge, there does not exist in or under the
Premises any pollutant, toxic or hazardous waste or substance, or any other
material the release or disposal of which is regulated by any law, regulation,
ordinance or code related to pollution or environmental contamination. Grantor
represents that it has received no summons, citations, directives, letters or
other communications, written or oral, from any federal, state or local agency
or department concerning the storing, releasing, pumping, pouring, emitting,
emptying or dumping of any pollutant, toxic or hazardous waste or substance on
the Premises.

     

    (b)            No Hazards. Grantor
covenants and agrees that it shall not, nor shall it permit others to, use the
Premises for the business of generating, transporting, storing, treating or
disposing of any pollutant, toxic or hazardous waste or substance, nor shall it
either take or fail to take any action which may result in a release of any
hazardous substance from or onto the Premises. Notwithstanding the foregoing,
tenants shall be entitled to store, use and dispose of hazardous materials at
the Premises in the ordinary course of their business provided such storage, use
and disposal is in accordance with all applicable local, state and federal laws,
rules and regulations. In addition to all rights of access granted Beneficiary
herein, so long as amounts are owed to Beneficiary under the Note, this Deed of
Trust or any Loan Documents, Beneficiary, or any authorized agent, contractor or
representative of Beneficiary, is hereby irrevocably authorized to enter upon
the Premises at any time and from time to time for the purpose of performing
inspections, taking soil borings or other borings, or conducting any other tests
or procedures on, in or about the Premises as Beneficiary deems necessary or
appropriate to determine whether any hazardous or toxic substances, including
without limitation asbestos or PCBs, are present on, under or about the
Premises.

     

    (c)            Indemnity. Grantor
agrees to defend, indemnify and to hold Beneficiary harmless
from any and all claims, causes of action, damages, penalties, and costs (including,
but not limited to, attorneys’ fees, consultants’ fees and related expenses)
which may be asserted against, or incurred by, Beneficiary resulting from or due
to release of any hazardous substance or waste on the Premises or arising out of
any injury to human health or the environment by reason of the condition of or
past activity upon the Premises. Grantor’s duty to indemnify and hold harmless
includes, but is not limited to, proceedings or actions commenced by any person
(including, but not limited to, any federal, state, or local governmental agency
or entity) before any court or administrative agency. Grantor further agrees
that pursuant to its duty to indemnify under this section, Grantor shall
indemnify Beneficiary against all expenses incurred by Beneficiary as they
become due and not waiting for the ultimate outcome of the litigation or
administrative proceeding. Grantor’s obligations to defend, indemnify and hold
Beneficiary harmless hereunder shall survive payment of the Loan, and all other
amounts owed under the Loan Documents and satisfaction or foreclosure of this
Deed of Trust.

     

    
      
        
        

      

      
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    10.          
MISCELLANEOUS.

     

    (a)             Successors and Assigns.
All of the grants, covenants, terms, provisions and conditions herein
shall bind Grantor and its successors and assigns and inure to the benefit of
the successors and assigns of Trustee and the endorsees, transferees, successors
and assigns of Beneficiary.

     

    (b)             Extension; Forbearance;
Other Indulgences. Beneficiary and Trustee (with the written permission
of Beneficiary) may grant any extension, forbearance or other indulgence, may
release any part of the Premises from the lien hereof and may release any person
from liability without affecting the personal liability of any other person for
payment of indebtedness secured hereby or the lien hereof.

     

    (c)             Governing Law. This
Deed of Trust shall be construed according to the laws of the Commonwealth of
Virginia.

     

    (d)             Notices. All written
notices hereunder shall be by certified or registered mail, postage prepaid, or
delivered in person addressed to the party for whom intended, any party shall
have the right to change its address for notice by giving notice hereunder,
including the right to specify a person to whose attention notices shall be
directed and shall also have the right by giving notice hereunder to require
that copies of any notice be given to not more than two additional persons or
addresses. Any notice sent by registered or certified mail shall be deemed given
on the date of receipt as shown on the return receipt and any notice given by
personal delivery to an officer of a party shall be deemed given on the date of
receipt as evidenced by such officer’s signed receipt; provided, however, that
if any party shall refuse to accept delivery of any notice so sent by registered
or certified mail or personally tendered to an officer, such notice shall be
deemed given when tendered for delivery.

     

    If to the
Beneficiary
at:                                       
Choice Financial Group

    1697
42nd
Street

    Grand
Forks, North Dakota 58201

     

    
      
        
        

      

      
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    If to the
Grantor,
at:                                             
Lee Oil Company, Inc.

     

      
        

      

    

    
      

    

     

    If to the
Trustee at:

    
      

      

    

    
      
 

    (e)             Further Assurances.
Grantor covenants and agrees to sign, execute and deliver, or cause to be
signed, executed and delivered, and to do or make, or cause to be done or made,
upon the request of Beneficiary, any and all agreements, instruments, papers,
deeds, acts or things, supplemental, confirmatory or otherwise, as may be
reasonably required by Beneficiary for the purpose of facilitating the
performance of the terms of this Deed of Trust or any of the other Loan
Documents.

     

    (f)             Severability. If any
term, covenant or condition of this Deed of Trust, or the application thereof to
any person or circumstance, shall to any extent be held to be invalid or
unenforceable by a court of competent jurisdiction, the remainder of this Deed
of Trust, or the application of such term, covenant or condition to other
persons or circumstances, shall not be affected thereby, and each term, covenant
or condition of this Deed of Trust shall be valid and enforceable to the fullest
extent permitted by law.

     

    (g)             Captions; Gender; Number.
The captions hereof are for convenience of reference only and shall
neither limit nor enlarge the provisions hereof. All personal pronouns used
herein, whether used in the masculine, feminine or neuter gender, shall include
all other genders. The singular shall include the plural and vice versa unless
the context specifically requires otherwise.

     

    (h)             Indemnification.
Grantor shall protect, defend, indemnify and save harmless Trustee and
Beneficiary from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys’ fees and expenses) imposed upon or incurred by or asserted
against Trustee or Beneficiary in connection with the Premises, or any part
thereof, the Loan, the Loan Documents or any related matter. Grantor’s
obligations to defend, indemnify and hold Beneficiary harmless hereunder shall
survive payment of the Loan, and all other amounts owed under the Loan Documents
and satisfaction or foreclosure of this Deed of Trust.

     

    (i) Counterparts. This
Deed of Trust may be executed in any number of counterparts, each of which shall
be an original but all of which together shall constitute one
instrument.

     

    [signature
page to follow]

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    
 

    IN
WITNESS WHEREOF, Grantor has caused this Third Party Deed of Trust, Assignment
and Security Agreement to be executed in its name by its duly authorized
representatives.

     

    
      
        	 	LEE OIL COMPANY,
      INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	 	 
	 	Its	 	 
	 	 	 	 
	 	 	 	 


      

    

                                                  

    STATE
OF                                            )

    )
ss

    COUNTY
OF                                         )

     

    The
foregoing instrument was acknowledged before me this ___ day of                                  
, 2008, by                                           
,
the                                                
of Lee Oil Company, Inc., a Virginia corporation,
on behalf of the corporation.

     

     

      
        

      

    

    Notary
Public

     

    THIS
DOCUMENT PREPARED BY:

     

    Winthrop
& Weinstine, P.A.

    225 South
Sixth Street, Suite 3500 

    Minneapolis,
Minnesota 55402


    
      
        
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    EXHIBIT
A

    LEGAL
DESCRIPTION

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     


    
      
        
          -
-

        

         


      

      
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    EXHIBIT
B

    PERMITTED
ENCUMBRANCES

     

     

     

     

     

     

    
 

     

     

     

     

     

     

     

     

     

     

     

    14