1
Exhibit 4.22
THIRD AMENDMENT TO LOAN AGREEMENT
DATED AS OF JANUARY 16, 1997
BY AND BETWEEN
SMC-SPE-2, INC., A DELAWARE CORPORATION,
AS BORROWER
AND
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
A NATIONAL BANKING ASSOCIATION,
AS LENDER
2
THIRD AMENDMENT TO LOAN AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT (this "Amendment"), dated as
of January 16, 1997, by and between FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, a national banking association, having an address at Xxx Xxxxx Xxxxx
Xxxxxx, XX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (together with its
successors and assigns, "Lender"), and SMC-SPE-2, INC., a Delaware corporation,
having an address at c/o Service Merchandise Company, Inc., 7100 Service
Xxxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("Borrower"). All capitalized
terms used herein shall have the respective meanings set forth in Section 1.1
hereof.
WITNESSETH:
WHEREAS, Borrower obtained mortgage loan financing in the
aggregate principal amount of FIFTEEN MILLION THREE HUNDRED EIGHTY TWO THOUSAND
FIVE HUNDRED AND 00/100 DOLLARS ($15,382,500.00) (collectively, the "Original
Loans") in connection with the acquisition or financing of five (5) Service
Merchandise locations pursuant to and in accordance with the terms of that
certain Loan Agreement between Lender and Borrower dated as of October 4, 1996
(the "Original Loan Agreement"), as amended by that certain First Amendment to
Loan Agreement between Lender and Borrower dated as of November 7, 1996 (the
"First Amendment"), as further amended by that certain Second Amendment to Loan
Agreement between Lender and Borrower dated as of December 20, 1996 (the "Second
Amendment"); and
WHEREAS, the Original Loans are evidenced by five (5)
Promissory Notes and secured by five (5) Mortgages;
WHEREAS, Borrower desires to obtain additional mortgage loan
financing in the aggregate principal amount of SIX MILLION FIVE HUNDRED SIXTY
THOUSAND AND 00/100 DOLLARS ($6,560,000.00) (the "New Loan") in connection with
the acquisition or financing of one (1) Service Merchandise location (the "New
Property"), as more specifically described in the multiple indebtedness
mortgage and security agreement encumbering such New Property, dated as of the
date hereof, executed and delivered by Borrower as security for the New Loan
(the "New Mortgage").
WHEREAS, Lender is willing to make the New Loan to Borrower,
subject to and in accordance with the terms of the Original Loan Agreement, as
amended by the First Amendment and as hereby further amended, and the other
Loan Documents.
NOW, THEREFORE, in consideration of the covenants, agreements,
representations and warranties set forth in Original Loan Agreement, as amended
by the First Amendment, the Second Amendment and as hereby further amended, and
other good and valuable consideration, the parties hereto hereby covenant,
agree, represent and warrant as follows:
I. DEFINITIONS.
SECTION 1.1 DEFINITIONS.
All capitalized terms not defined in this Amendment shall have
their respective meanings set forth in the Original Loan Agreement, as amended
by the First Amendment and the Second Amendment:
1. Definitions. (a) All references in the Original Loan Agreement,
as amended by the First Amendment, the Second Amendment and as hereby further
amended, to "Loans" shall be deemed to include the New Loan.
(b) All references in the Original Loan Agreement, as amended
by the First Amendment, the Second Amendment and as hereby further amended, to
"Properties" shall be deemed to include the New Property.
(c) All references in the Original Loan Agreement, as amended
by the First Amendment, the Second Amendment and as hereby further amended, to
"Maturity Date" shall, with respect to the New Loan only, be deemed to be
references to February 1, 2012.
3
(d) All references in the Original Loan Agreement, as amended
by the First Amendment, the Second Amendment and as hereby further amended, to
"Note" or "Notes" shall be deemed to include the promissory note evidencing the
New Loan.
(e) All references in the Original Loan Agreement, as amended
by the First Amendment, the Second Amendment and as hereby further amended, to
"Mortgage" or "Mortgages" shall be deemed to include the New Mortgage.
(f) All references in the Original Loan Agreement, as amended
by the First Amendment, the Second Amendment and as hereby further amended, to
"Assignment of Leases" shall be deemed to include the first priority Assignment
of Leases and Rents, dated as of the date hereof, executed and delivered by
Borrower to Lender with respect to the New Property, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time.
(g) All references in the Original Loan Agreement, as
amended by the First Amendment, the Second Amendment and as hereby further
amended, to "Closing Date" shall mean, with respect to the New Loan, the date
hereof.
(h) All references in the Original Loan Agreement, as
amended by the First Amendment, the Second Amendment and as hereby further
amended, to "Initial Allocated Amount" shall mean, with respect to the New
Loan, the principal amount of the promissory note evidencing such new loan, as
set forth on Exhibit A attached hereto and by this reference a part hereof.
2. Exhibit A. Exhibit A to the Original Loan Agreement is hereby
deleted in its entirety and replaced with Exhibit A attached hereto. All
references in the Original Loan Agreement to "Exhibit A" shall be deemed to be
references to Exhibit A attached hereto.
3. Ratification. Except as hereinabove set forth, all terms,
covenants and provisions of the Original Loan Agreement, as amended by the
First Amendment and the Second Amendment, remain unaltered and in full force
and effect, and Borrower hereby expressly ratifies the Original Loan Agreement,
as amended by the First Amendment, the Second Amendment and as further modified
and amended herein.
4. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be effective upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument, for the same effect as if all parties hereto had signed the
same signature page. Any signature page of this Amendment may be detached from
any counterpart of this Amendment without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this Amendment
identical in form hereto but having attached to it one or more additional
signature pages.
2
4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
LENDER:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BORROWER:
SMC-SPE-2, a Delaware corporation,
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
Vice President
5
EXHIBIT A
INITIAL ALLOCATED LOAN AMOUNTS
Store #249 = $3,712,500.00
Store #252 = $2,100,000.00
Store #349 = $2,885,000.00
Store #344 = $2,285,000.00
Store #408 = $6,560,000.00
Store #410 = $4,400,000.00
