Exhibit 4.10(d)
CROSS REFERENCE TO:
Trust Deed Book 1195, Page 112
Trust Deed Book 1250, Page 628
Trust Deed Book 1329, Page 45
Trust Deed Book ____, Page __
Land Records of Cabell County,
West Virginia
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A CREDIT LINE DEED OF TRUST
This instrument is "A CREDIT LINE DEED OF TRUST" as provided in West
Virginia Code Chapter 38, Article 1, Section 14.
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FOURTH AMENDMENT TO DEED OF TRUST,
ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT (this "Fourth Amendment") effective as of __________ __, 1997
and executed as of ________ __, 1997, is made by and among SWVA, INC., a
Delaware corporation (successor by corporate merger to Steel of West Virginia,
Inc.), having a mailing address at 17th Street and 2nd Avenue, Huntington, West
Virginia 25726, Attention: President, party of the first part as grantor
("Grantor"), Douglas C. McElwee, an individual resident of the State of West
Virginia, whose mailing address is 600 United Center, 500 Virginia Street East,
Charleston, West Virginia 25301, party of the second part as trustee ("Trustee")
and THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation, having a
mailing address of 900 Ashwood Parkway, Atlanta, Georgia 30338, Attention:
Michael F. Lapresi, Vice President, party of the third part as beneficiary
("Lender");
WITNESSETH:
WHEREAS, pursuant to that certain Financing Agreement (the "Original
Financing Agreement") dated December 30, 1986, by and between Grantor and
Lender, Lender extended to Grantor a certain credit facility and term debt (the
"Loan"), which Loan was evidenced by a certain Promissory Note ("Promissory
Note") dated of even date therewith, made by Grantor in favor of Lender, in the
original principal amount of $20,000,000.00 and secured by that certain Deed of
Trust, Assignment of Leases and Rents and Security Agreement (the "Original Deed
of Trust"), dated as of even date therewith, made and entered into by and among
Grantor, James O. Porter, as the original trustee thereunder, and Lender and
recorded in Trust Deed Book 1195, beginning at page 112, Land Records of Cabell
County, West Virginia, conveying to Trustee in trust for the benefit of Lender
certain improved real property located in the
City of Huntington, Cabell County, West Virginia, as more particularly described
in the Original Deed of Trust; and
WHEREAS, on September 27, 1989, Grantor and Lender amended the Original
Financing Agreement to modify certain terms and conditions of the Loan,
including, inter alia, increasing the amount of term debt and, in connection
therewith, Grantor executed that certain Term Note ("Term Note II"), dated of
even date, in favor of Lender in the principal amount of $26,922,000.00, and
Grantor, Trustee and Lender entered into that certain First Amendment to Deed of
Trust, Assignment of Leases and Rents and Security Agreement dated of even date
therewith and recorded in Trust Deed Book 1250, beginning at page 628, aforesaid
Land Records, (the "First Amendment") to reflect the modifications to the Loan;
and
WHEREAS, on September 30, 1992, Grantor and Lender further amended the
Original Financing Agreement to modify certain terms and conditions of the Loan
including, inter alia, the extension to Grantor of an additional term loan in
the principal amount of $6,500,000.00 ("Term Loan III"), Term Loan III being
evidenced by that certain term note in the original principal amount of
$6,500,000.00 ("Term Note III"), and Grantor, Trustee and Lender entered into
that certain Second Amendment to Deed of Trust, Assignment of Leases and Rents
and Security Agreement dated of even date therewith and recorded in Trust Deed
Book 1329, beginning at page 45, aforesaid Land Records, (the "Second
Amendment") to reflect the further modifications to the Loan; and
WHEREAS, on February 1, 1994, Grantor and Lender further amended the
Original Financing Agreement to modify certain terms and conditions of the Loan
including, inter alia, the extension to Grantor of a certain CAPEX Term Loan
Line of Credit (as defined in the Financing Agreement) in an aggregate principal
amount of up to $16,000,000, pursuant to which Lender shall extend certain Capex
Term Loans (as defined in the Financing Agreement) to Grantor, which Capex Term
Loans shall be evidenced by certain Promissory Notes as more particularly
described in the Financing Agreement, Grantor, Trustee and Lender entered into
that certain Third Amendment to Deed of Trust, Assignment of Leases and Rents
and Security Agreement dated of even date therewith and recorded in Trust Deed
Book ___, beginning at page ___, aforesaid Land Records (the "Third Amendment")
to reflect the further modifications to the Loan; and
WHEREAS, effective as of March ___, 1997, Grantor and Lender have further
amended the Original Financing Agreement (the Original Financing Agreement, as
so amended, being hereinafter referred to as the "Financing Agreement") to
modify certain terms and conditions of the Loan including, inter alia, the
extension to Grantor under the Financing Agreement of a certain Additional CAPEX
Term Loan Line of Credit (as defined in the Financing Agreement) in the
aggregate principal amount not to exceed $23,000,000, pursuant to which Lender
shall extend certain Additional CAPEX Term Loans (as defined in the Financing
Agreement) to Grantor, which
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Additional CAPEX Term Loans shall be evidenced by certain Promissory Notes as
more particularly described in the Financing Agreement;
WHEREAS, all amounts due and owing under the Promissory Note, the Term II
Note and the Term III Note have been paid in full; and
WHEREAS, Grantor, Trustee and Lender desire to further modify the terms
and conditions of the Original Deed of Trust, as amended by the First Amendment,
the Second Amendment and the Third Amendment, to reflect the above-referenced
modification to the Loan.
NOW, THEREFORE, in consideration of the foregoing premises and the sum of
TEN AND NO/100THS DOLLARS ($10.00) in hand paid by Lender to Grantor and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A. Terms.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed thereto in the Deed of Trust.
B. Modification of the Deed of Trust. The Original Deed of Trust, as
amended by the First Amendment, the Second Amendment and the Third Amendment, is
hereby further amended as follows:
1. Paragraph (a) on page 4 of the Original Deed of Trust as amended by the
First Amendment, the Second Amendment and the Third Amendment, is hereby deleted
in its entirety and the following new paragraph (a) is inserted in lieu thereof:
"(a) The debt evidenced by (i) the Promissory Note (the "Capex
Promissory Notes") to be executed and delivered in connection with the
CAPEX Term Loan to be extended pursuant to Section 3 of the Financing
Agreement (as hereinafter defined) in an aggregate principal amount of up
to $16,000,000 and (ii) the Promissory Note (the "Additional CAPEX
Promissory Note") to be executed and delivered in connection with the
Additional CAPEX Term Loan to be extended pursuant to Section 3 of the
Financing Agreement in an aggregate principal amount not to exceed
$23,000,000 (the CAPEX Promissory Note and the Additional CAPEX Promissory
Note are hereinafter collectively referred to as the "Notes" and
singularly referred to as a "Note"), together with any and all renewals,
modifications, amendments and extensions and/or consolidations of the
indebtedness evidenced by the Notes."
2. The defined term "Note" is hereby deleted wherever it appears and the
defined term "Notes" is inserted in lieu thereof.
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3. The Original Deed of Trust, as amended by the First Amendment, the
Second Amendment, the Third Amendment and as further amended by this Fourth
Amendment, is hereafter referred to as the "Deed of Trust."
4. The Deed of Trust, the Notes and any other document heretofore, now or
hereafter executed to evidence, secure or otherwise pertain to the Loan are
hereafter collectively referred to as the "Loan Documents."
C. Warranties.
By its execution hereof, Grantor warrants and represents to Lender that,
as of the date hereof, there does not exist a Default, Event of Default or event
or circumstance which with the passage of time or giving of notice or both would
constitute a Default or Event of Default, as the case may be, under the Notes,
the Deed of Trust or any of the other Loan Documents; by its execution hereof,
Grantor also reaffirms, as of the date hereof, all of the representations and
warranties of Grantor contained in the Notes, the Deed of Trust and all of the
other Loan Documents.
D. Ratification.
Grantor hereby acknowledges and agrees that, except as set forth herein or
expressly modified or amended hereby, the Loan Documents have not previously
been modified or amended and are in full force and effect. Grantor hereby
ratifies and confirms all of the terms, covenants and conditions set forth in
the Notes, Deed of Trust and the other Loan Documents and hereby acknowledges
that the Notes, Deed of Trust and the other Loan Documents constitute valid and
binding obligations of Grantor. Without limiting the foregoing, Grantor hereby
ratifies and confirms the grant and conveyance of the "Premises" (as defined in
the Deed of Trust) to Trustee for the benefit of Lender as security for
repayment of the "Indebtedness", as defined in the Deed of Trust. Grantor
further represents and warrants to Lender that the Deed of Trust is and
continues to be a first priority Deed of Trust encumbering the Premises as
security for the Loan, subject only to the Permitted Encumbrances stated
therein. Grantor further acknowledges and agrees that the Notes, the Deed of
Trust and the other Loan Documents are enforceable in accordance with their
terms and free from claims of defense, setoff or recoupment against Lender or
any other person or party.
E. Execution in Counterparts.
This Fourth Amendment may be executed in any number of counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same agreement.
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F. Successors and Assigns.
The covenants and agreements herein contained shall bind, and the rights
hereunder shall inure to, the respective successors and assigns of Lender and
Grantor. The captions and headings of the paragraphs of this Fourth Amendment
are for convenience only and are not to be used to interpret or define the
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment
under seal as of the day and year first above written.
GRANTOR:
Signed, sealed and delivered SWVA, INC.,
in the presence of: a Delaware corporation
______________________________ By: _______________________________
Witness Name:
Title:
______________________________ Attest: ___________________________
Witness Name:
Title:
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
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TRUSTEE:
Signed, sealed and delivered
in the presence of:
_____________________________ ___________________________(SEAL)
Witness Douglas C. McElwee
_____________________________
Witness
[SIGNATURES CONTINUED ON NEXT PAGE]
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LENDER:
Signed, sealed and delivered THE CIT GROUP/BUSINESS CREDIT,
in the presence of: INC., a New York corporation
______________________________ By: _______________________________
Witness Name:
Title:
______________________________ Attest: ___________________________
Witness Name:
Title:
[CORPORATE SEAL]
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ACKNOWLEDGMENT
STATE OF __________
COUNTY OF _________
I, ___________________, a notary public of said State and County, do
certify that ______________ and ________________, who signed the writing above
bearing date the day of _____, 1997, as _______________ and ________________,
respectively, of SWVA, Inc., have this day in my said County, before me,
acknowledged the said writing to be the act and deed of said corporation.
Given under my hand and official seal this _______ day of _______, 1997.
______________________________
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
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ACKNOWLEDGMENT
STATE OF WEST VIRGINIA
COUNTY OF KANAWHA
I, ____________________, a notary public of said State and County, do
certify that [Douglas C. McElwee], whose name is signed to the writing above as
Trustee, bearing date the _______ day of ________, 1997, has this day
acknowledged the same before me in my said County.
Given under my hand and official seal this _______ day of __________,
1997.
______________________________
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
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ACKNOWLEDGMENT
STATE OF _________
COUNTY OF ________
I, __________________, a notary public of said State and County, do
certify that ______________ and ______________, who signed the writing above
bearing date the day of ________, 1997, as ______________ and ______________,
respectively, of The CIT Group/Business Credit, Inc., have this day in my said
County, before me, acknowledged the said writing to be the act and deed of said
corporation.
Given under my hand and official seal this ________ day of _________,
1997.
_________________________________
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
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