Exhibit 4.10(c)
CROSS REFERENCE TO:
Trust Deed Book 1195, Page 112
Trust Deed Book 1250, Page 628
Trust Deed Book 1329, Page 45
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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THIRD AMENDMENT TO DEED OF TRUST,
ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT (this "Third Amendment") effective as of February 1,
1994 and executed as of March __, 1994, 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, Trustee 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, effective as of February 1, 1994, 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 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; 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 and the Second 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
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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 and the Second 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 and the Second Amendment is hereby deleted in its
entirety and the following new paragraph (a) is inserted in lieu thereof:
"(a) The term debt evidenced by (i) that certain original
Promissory Note, dated December 30, 1986, made by Charter
Acquisition Corp. (subsequently merged with and into Steel of West
Virginia, Inc., a West Virginia corporation) payable to the order
of Lender in the original principal face amount of Twenty Million
and No/100 Dollars ($20,000,000.00), as amended by that certain
agreement between Grantor and Lender, dated on or about September
26, 1989, (ii) that certain Term Note II, dated on or about
September 26, 1989, made by Grantor payable to the order of Lender
in the principal face amount of Twenty-Six Million Nine Hundred
Twenty-Two Thousand and No/100 Dollars ($26,922,000.00), (iii) that
certain Term Note III dated on or about September 30, 1992, made by
Grantor payable to the order of Lender in the principal face amount
of Six Million Five Hundred Thousand and No/100 Dollars
($6,500,000.00), and (iv) the Promissory Notes (the "Capex
Promissory Notes") to be executed and delivered in connection with
the Capex Term Loans 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 (the original Promissory
Note, Term Note II, Term Note III and the Capex Promissory Notes
are hereinafter collectively and singularly referred to as the
"Notes"), together with any and all renewals, modifications,
amendments and extensions and/or consolidations of the indebtedness
evidenced by the Notes."
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2. Section 1.15 of the Original Deed of Trust is hereby amended by
adding the following sentence at the end of said Section 1.15:
"This Deed of Trust secures obligatory future advances which
Lender has legally obligated itself to make in the advance of a
default, breach or other such event."
3. The defined term "Note" is hereby deleted wherever it appears and
the defined term "Notes" is inserted in lieu thereof.
4. The Original Deed of Trust, as amended by the First Amendment, the
Second Amendment and as further amended by this Third Amendment, is hereafter
referred to as the "Deed of Trust."
5. 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."
6. The mailing address of The CIT Group/Business Credit, Inc. which
appears in the opening paragraph of the Deed of Trust and in Section 3.14 of
the Deed of Trust is hereby deleted and the following mailing address is
inserted in lieu thereof: "900 Ashwood Parkway, Atlanta, Georgia 30338,
Attention: Michael F. Lapresi, Vice President."
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
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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 Third 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.
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 Third Amendment
are for convenience only and are not to be used to interpret or define the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Third
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
_________________________ _______________________________
Witness Name:
Title:
_________________________ Attest:________________________
Witness Name:
Title:
[CORPORATE SEAL]
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[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 March, 1994, 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 March, 1994.
_____________________________________
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 March, 1994, has this day
acknowledged the same before me in my said County.
Given under my hand and official seal this ____ day of March, 1994.
_____________________________
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 March, 1994, 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 March, 1994.
______________________________
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
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