Exhibit 10.17
SECOND AMENDMENT TO OPEN-END LEASEHOLD MORTGAGE,
COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO OPEN-END LEASEHOLD MORTGAGE, COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT dated as of January 30, 1998 (hereinafter referred to as
the "Second Amendment to Mortgage") is entered into by and between UNIVERSAL
STAINLESS & ALLOY PRODUCTS, INC., a Delaware corporation (the "Mortgagor") and
PNC BANK, NATIONAL ASSOCIATION (the "Mortgagee"), and amends that certain First
Amendment to Open-End Leasehold Mortgage, Collateral Assignment and Security
Agreement dated January 31, 1996, entered into by and between the Mortgagor and
the Mortgagee and recorded in the office of the Recorder of Deeds of Allegheny
County, Pennsylvania on February 16, 1996 in Volume 15503 on page 150 (the
"First Amendment to Mortgage"), which in turn amended that certain Open-End
Leasehold Mortgage, Collateral Assignment and Security Agreement dated as of
November 18, 1994, entered into by and between the Mortgagor and the Mortgagee
and recorded in the office of the Recorder of Deeds of Allegheny County,
Pennsylvania on November 23, 1994 in Volume 14601 on page 599 (the Open-End
Leasehold Mortgage, Collateral Assignment and Security Agreement, as amended by
the First Amendment to Mortgage and together with all extensions, renewals,
amendments, substitutions, and replacements thereto and thereof, is hereinafter
referred to as the "Original Mortgage").
WITNESSETH:
WHEREAS, the Mortgagee made a credit facility available to the Mortgagor, on
November 18, 1994 in the principal amount of $5,000,000 (the "Credit
Agreement"), as evidenced by a Note dated November 18, 1994 executed by the
Mortgagor in favor of the Mortgagee in the principal amount of $5,000,000; and
WHEREAS, between November 18, 1994 and October 9, 1995 the Mortgagor and the
Mortgagee had occasion to amend the Credit Agreement as evidenced by the first
amendment thereto dated March 30, 1995, the second amendment thereto dated June
2, 1995, the third amendment thereto dated August 25, 1995, the fourth amendment
thereto dated October 3, 1995, and the fifth amendment thereto dated October 9,
1995; and
WHEREAS, the Mortgagor and the Mortgagee amended and restated in its entirety
the Credit Agreement pursuant to the Amended and Restated Credit Agreement
between the Mortgagor and the Mortgagee dated January 31, 1996, as amended by
that certain First Amendment to Amended and Restated Credit Agreement dated May
1, 1997 (the "First Amendment") (the Amended and Restated Credit Agreement, as
amended by the First Amendment, and together with all exhibits and schedules
thereto, is hereinafter referred to as the "Amended and Restated Credit
Agreement");
EXHIBIT F-3
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WHEREAS, the Mortgagor and the Mortgagee have agreed to amend and restate the
Amended and Restated Credit Agreement in its entirety and have done so pursuant
to the terms of that certain Second Amended and Restated Credit Agreement dated
as of even date herewith (the Second Amended and Restated Credit Agreement,
together with all exhibits and schedules thereto and all extensions,
modifications, renewals, amendments, substitutions and replacements thereof, is
hereinafter referred to as the "Second Amended and Restated Credit Agreement");
WHEREAS, to secure the extension of the credit facility, as set forth in the
Second Amended and Restated Credit Agreement, the Mortgagee has requested that
the Mortgagor execute and deliver or cause to be executed and delivered to the
Mortgagee amendments to or restatements of the Security Documents previously
executed in connection with the Credit Agreement and the Amended and Restated
Credit Agreement and the Mortgagor has agreed to do so, including, but not
limited to, this Second Amendment to Mortgage.
NOW THEREFORE, in consideration of the premises (each of which are hereby
incorporated by reference and made a material part hereof), the mutual covenants
and agreements contained herein and other valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and with the intent to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO THE ORIGINAL MORTGAGE
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Section 1.01 Amendments to the Original Mortgage. The Original Mortgage is
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hereby amended in the following respects:
(a) The recitals are hereby amended and restated in their entirety to read as
follows:
WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement dated as of January 30, 1998, the Mortgagee has continued and
expanded the credit facility established by the Mortgagee in favor of the
Mortgagor by amending and restating in its entirety that certain Amended
and Restated Credit Agreement dated as of January 31, 1996, as amended by
that certain First Amendment to Amended and Restated Credit Agreement dated
as of May 1, 1997, which, in turn, amended and restated in its entirety
that certain credit agreement dated as of November 18, 1994, as amended by
the first amendment thereto dated March 30, 1995, the second amendment
thereto dated June 2, 1995, the third amendment thereto dated August 25,
1995, the fourth amendment thereto dated October 3, 1995, and the fifth
amendment thereto dated October 9, 1995; and
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WHEREAS, under the credit agreement dated November 18, 1994, the credit
facility made available to the Mortgagor was in an aggregate principal
amount not to exceed $5,000,000.00, which limit was increased to
$6,500,000.00 by the first amendment thereto dated March 30, 1995; and
WHEREAS, pursuant to the terms of the Second Amended and Restated Credit
Agreement, the Mortgagee has expanded the credit facility by making
available to the Mortgagor, in addition to the $6,500,000.00 Revolving
Credit Commitment, a Term Loan Commitment in the amount of $15,000,000.00;
and
WHEREAS, the extensions of credit made pursuant to the Second Amended and
Restated Credit Agreement are evidenced by a Second Amended and Restated
Revolving Credit Note dated as of January 30, 1998 in the maximum aggregate
principal amount of $6,500,000.00 (the "Revolving Credit Note") and a Term
Note in the maximum aggregate principal amount equal to the lesser of (i)
$15,000,000.00 or (ii) the aggregate unpaid principal amount of all
disbursements made by the Bank under the Term Loan Commitment (the "Term
Note") (the Revolving Credit Note and the Term Note are individually and
collectively referred to herein as the "Note"); and
WHEREAS, the Mortgagee may issue from time to time letters of credit for
the account of the Mortgagor (hereinafter referred to individually and
collectively as the "Letters of Credit") in connection with and/or pursuant
to certain applications for letters of credit and related Reimbursement
Agreements executed by the Mortgagor pertaining to Letters of Credit (such
applications for letters of credit and related Reimbursement Agreement are
hereinafter referred to individually and collectively as the "Letter of
Credit Agreements") in accordance with the terms of the Second Amended and
Restated Credit Agreement (the Second Amended and Restated Credit Agreement
is hereinafter referred to throughout the remainder of this Mortgage as the
"Credit Agreement"); and
WHEREAS, the Mortgagor is the lessee of a certain tract or parcel of land
situate in Allegheny County, Pennsylvania, as more fully described in
Exhibit A attached hereto and made a part hereof, together with the
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improvements now or hereafter erected thereon; and
WHEREAS, the Mortgagor has agreed to grant, bargain, sell, convey, assign,
mortgage, pledge and otherwise transfer to Mortgagee, and to grant to
Mortgagee a lien and security interest in, property of the Mortgagor to
secure the payment and performance of the Obligations (as such term is
defined in the Credit Agreement) of the Mortgagor, including but not
limited to the
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payment of the Note and the reimbursement obligations with
respect to the Letter of Credit Agreements, if any; and
WHEREAS, the Mortgagor has good and marketable right, title and interest in
and to all the leasehold estate and personal property which is subject to
this Mortgage; and
WHEREAS, the Mortgagor's landlord is Armco, Inc. (the "Lessor") with whom
the Mortgagor, in conjunction with this Mortgage, has entered into (i) the
lease more fully described on Exhibit B attached hereto and made a part
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hereof (the "Lease") and (ii) a landlord's waiver (the "Landlord's
Waiver").
Section 1.02 No Other Amendments. The amendments to the Original Mortgage
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set forth in Section 1.01 above do not either implicitly or explicitly alter,
waive or amend, except as expressly provided in this Second Amendment to
Mortgage, the provisions of the Original Mortgage. The amendments set forth in
Section 1.01 hereof do not waive, now or in the future, compliance with any
other covenant, term or condition to be performed or complied with nor do they
impair any rights or remedies of the Mortgagee under the Original Mortgage, with
respect to any such violation.
ARTICLE II
MORTGAGOR'S SUPPLEMENTAL REPRESENTATIONS
----------------------------------------
Section 2.01 Incorporation by Reference. As an inducement to the Mortgagee
--------------------------
to enter into this Second Amendment to Mortgage, the Mortgagor hereby repeats
herein for the benefit of the Mortgagee the representations and warranties made
by the Mortgagor in the Original Mortgage, as amended, except that for purposes
hereof such representations and warranties shall be deemed to extend to and
cover this Second Amendment to Mortgage.
ARTICLE III
GENERAL PROVISIONS
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Section 3.01 Ratification of Terms. Except as expressly amended by this
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Second Amendment to Mortgage, the Original Mortgage and each and every
representation, warranty, covenant, term and condition contained therein is
specifically ratified and confirmed. The Mortgagor and the Mortgagee agree that
nothing contained in this Second Amendment to Mortgage shall be construed to
extinguish, release, discharge or constitute a novation of, or an agreement to
extinguish, the security interests and liens created by the Original Mortgage.
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Section 3.02 References. All notices, communications, agreements,
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certificates, documents or other instruments executed and delivered
after the execution and delivery of this Second Amendment to Mortgage in
connection with the Credit Agreement, the Amended and Restated Credit Agreement,
the Second Amended and Restated Credit Agreement, and any of the other documents
or instruments executed in connection therewith or the transactions contemplated
thereby may refer to the Original Mortgage without making specific reference to
this Second Amendment to Mortgage, but nevertheless all such references shall
include this Second Amendment to Mortgage unless the context requires otherwise.
From and after the date hereof, all references in the Original Mortgage and each
of the other documents and instruments executed in connection therewith to the
Original Mortgage, in any manner, shall be deemed to be references to the
Original Mortgage, as amended by the First Amendment to Mortgage and this Second
Amendment to Mortgage.
Section 3.03 Capitalized Terms. Except for proper nouns and as otherwise
-----------------
defined herein, capitalized terms used herein as defined terms shall have the
meanings ascribed to them in the Original Mortgage, as amended by the First
Amendment to Mortgage and this Second Amendment to Mortgage or, to the extent
not defined therein, such terms shall have the meanings ascribed to them in the
Second Amended and Restated Credit Agreement.
Section 3.04 Taxes. The Mortgagor shall pay any and all stamp and other
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taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of this Second Amendment to Mortgage
and such other documents and instruments as are delivered in connection herewith
and agrees to save the Mortgagee harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
Section 3.05 Costs and Expenses. The Mortgagor will pay all costs and
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expenses of the Mortgagee in connection with the preparation, execution and
delivery of this Second Amendment to Mortgage and the other documents,
instruments and certificates delivered in connection herewith.
Section 3.06 Governing Law. THIS SECOND AMENDMENT TO MORTGAGE AND THE
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RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
Section 3.07 Headings. The headings of the sections in this Second
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Amendment to Mortgage are for purposes of reference only and shall have no
effect nor in any manner limit the meaning or construction of this Second
Amendment to Mortgage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Mortgagor, with the intent to be legally bound hereby,
has caused this Second Amendment to Mortgage to be duly executed by its proper
and duly authorized officer, as of the day and year first above written.
WITNESS: UNIVERSAL STAINLESS & ALLOY
PRODUCTS, INC., a Delaware corporation.
/s/ Xxxx X. XxXxxxx /s/ Xxxxxxx X. Xxxxxxx
_____________________________ By_______________________________________(SEAL)
Xxxx X. XxXxxxx Xxxxxxx X. Xxxxxxx
Name: _________________________________________
Director Employee
Relations/General
Counsel CFO/Treasurer
_____________________________ Title: ________________________________________
================================================================================
CERTIFICATE OF RESIDENCE
I hereby certify that the precise address of the Mortgagee, PNC Bank, National
Association, herein is as follows: One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000.
PNC BANK, NATIONAL ASSOCIATION
/s/ Xxxx X. Xxxxxxxxxx
By_______________________________________(SEAL)
Xxxx X. Xxxxxxxxxx
Name: _________________________________________
Vice President
Title: ________________________________________
BF 78058.2 1/28/98
000011 012932
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CORPORATE ACKNOWLEDGEMENT
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF ALLEGHENY )
On this 30th day of January, 1998, before me, the undersigned Notary Public,
personally appeared Xxxxxxx X. Xxxxxxx, the CFO/Tresurer of Universal Stainless
& Alloy Products, Inc., and known to me to be the CFO/Treasurer of Universal
Stainless & Alloy Products, Inc. who executed the Second Amendment to Open-End
Leasehold Mortgage, Collateral Assignment and Security Agreement and
acknowledged the Second Amendment to Open-End Leasehold Mortgage, Collateral
Assignment and Security Agreement to be the free and voluntary act and deed of
Universal Stainless & Alloy Products, Inc., by authority of its Board of
Directors, for the uses and purposes therein mentioned, and on oath stated that
he is authorized to execute this Second Amendment to Open-End Leasehold
Mortgage, Collateral Assignment and Security Agreement and in fact executed the
Second Amendment to Open-End Leasehold Mortgage, Collateral Assignment and
Security Agreement on behalf of the Universal Stainless & Alloy Products, Inc.
/s/ Xxxxxx X. Xxxxx
_____________________________________
Notary Public
My Commission Expires: September 10, 2001
RECORDATION REQUESTED BY: MAIL TAX NOTICES TO:
PNC Bank, National Association Universal Stainless & Alloy
One PNC Plaza Products, Inc.
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
WHEN RECORDED MAIL TO:
Xxxxx X. Pool, Esq.
Xxxxxx Xxxxxxxxx, P.C.
0000 Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
BF 78058.2 1/28/98
000011 012932
