Exhibit 4I
FIRST AMENDMENT TO
------------------
SECOND WAIVER AND AMENDMENT AGREEMENT
-------------------------------------
This First Amendment to Second Waiver and Amendment Agreement (the
"Amendment") dated as of June 24, 2002 is made and entered into by and among
Wachovia Bank, National Association, formerly known as First Union National
Bank, with an office at Broad and Walnut Streets, Philadelphia, Pennsylvania
19109 (the "Bank"), Selas Corporation of America, a Pennsylvania business
corporation with offices located at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx
00000 (the "Borrower"), Selas SAS (formerly named Selas S.A.), a corporation
organized under the laws of France ("Selas SAS"), CFR-CECF Fofumi Ripoche, a
corporation organized under the laws of France ("CFR"); and together with Selas
SAS, the "European Subsidiaries"), Deuer Manufacturing, Inc., an Ohio business
corporation with offices located at 0000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxx 00000
("Deuer"), Resistance Technology, Inc., a Minnesota business corporation with
offices located at 0000 Xxx Xxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000 ("RTI"), RTI
Export, Inc., a Barbados corporation with offices located at c/o 0000 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 ("RTIE"), and RTI Electronics, Inc., a
Delaware corporation with offices located at 0000 Xxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000 ("RTI Electronics"; and together with Deuer, RTI and RTIE, the
"Guarantors").
BACKGROUND
----------
A. The Bank, the Borrower and the Guarantors entered into that certain
Amended and Restated Credit Agreement dated as of July 31, 1998, as amended by
an Amendment dated as of June 30, 1999, a Second Amendment dated as of July 7,
2000 and a Third Amendment dated as of January 19, 2001 (as amended, the "Credit
Agreement"), pursuant to which the Bank made certain term loans to the Borrower
described therein (the "Term Loans") and agreed to make available to the
Borrower a revolving credit facility in the principal amount of Four Million
Five Hundred Thousand Dollars ($4,500,000) (the "Revolving Credit").
B. The Guarantors jointly and severally guaranteed and became surety for
all loans, advances, debts, liabilities, obligations, covenants and duties of
the Borrower to the Bank pursuant to the following agreements (collectively, the
"Borrower Surety Agreements"): (i) that certain Guaranty and Suretyship
Agreement of Deuer dated as of October 20, 1993 and amended as of July 31, 1998
(as amended, the "Deuer Surety Agreement"), (ii) that certain Guaranty and
Suretyship Agreement of RTI dated as of October 20, 1993 and amended as of July
31, 1998 (as amended, the "RTI Surety Agreement"), (iii) that certain Guaranty
and Suretyship Agreement of RTIE dated as of October 20, 1993 and amended as of
July 31, 1998 (as amended, the "RTIE Surety Agreement"), and (iv) that certain
Guaranty and Suretyship Agreement of RTI Electronics dated as of February 20,
1997, as amended July 31, 1998 (as amended, the "RTI Electronics Surety
Agreement").
C. The Term Loans are evidenced by the following promissory notes executed
by the Borrower in favor of the Bank, which are outstanding as of the date
hereof: (i) Term Note D dated as of June 30, 1999 in the original principal
amount of Nine Hundred Thousand Dollars
- 1 -
($900,000) ("Term Note D"), (ii) Term Note E dated as of January 19, 2001 in the
original principal amount of Two Million Dollars ($2,000,000) ("Term Note E"),
and (iii) Term Note F dated as of January 19, 2001 in the original principal
amount of Xxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxx Xxxxxxxxx Dollars (Singapore
$1,700,000) ("Term Note F"; and together with Term Note D and Term Note E, the
"Term Notes"). The Revolving Credit facility is evidenced by an Amended and
Restated Revolving Credit Note dated as of January 19, 2001 in the principal
amount of Four Million Five Hundred Thousand Dollars ($4,500,000) between the
Borrower and the Bank (the "Revolving Credit Note"). The Term Notes, the
Revolving Credit Note and the Supplemental Credit Facility Note (as hereinafter
defined) are collectively referred to hereinafter as the "Notes".
D. First Union National Bank, London Branch ("London Branch") and Selas
SAS, a subsidiary of the Borrower, entered into that certain Agreement dated as
of February 2, 2001, amended and restated in its entirety pursuant to that
certain Amended and Restated Facility Agreement dated as of April 15, 2002 (the
"Selas SAS Facility Agreement") pursuant to which the Bank provided to Selas SAS
a discretionary line of credit facility in the aggregate amount of Sixteen
Million Euros (E16,000,000) on an "on demand" basis, expiring on April 30, 2001
(the "Selas SAS Facility") for the purposes of providing: discretionary advance
payment guarantees on behalf of Selas SAS (the "APG Facility"); and a
discretionary overdraft facility for general working capital purposes with a
sub-limit amount of Two Million Euros (E2,000,000) that was later increased (the
"Overdraft Facility"). The London Branch and Selas SAS also entered into certain
term loan agreements (collectively, the "Selas SAS Term Loan Agreements"), as
follows: an agreement dated February 26, 1998, amended and restated in its
entirety by that certain agreement dated as of April 15, 2002, pursuant to which
the Bank made a term loan to Selas SAS in the original principal amount of
Fifteen Million French Francs (FF 15,000,000) (as amended, the "Selas SAS 1998
Term Loan Agreement"); and an agreement dated January 2000, amended and restated
in its entirety by that certain agreement dated as of April 15, 2002, pursuant
to which the Bank made a term loan to Selas SAS in the original principal amount
of One Million Seven Hundred and Fifty-Three Thousand One Hundred and
Fifty-Eight and 30/100 Euros (E1,753,158.30) (as amended, the "Selas SAS 2000
Term Loan Agreement").
E. The Borrower and Guarantors jointly and severally guaranteed and became
surety for all loans, advances, debts, liabilities, obligations, covenants and
duties of Selas SAS to the Bank, pursuant to the following agreements (the
"Selas SAS Surety Agreements"): (i) that certain Unconditional Guaranty of
Borrower dated as of January 10, 2000 (the "Borrower Guaranty"), (ii) that
certain Unconditional Guaranty of Deuer dated as of January 10, 2000 (the "Deuer
Guaranty"), (iii) that certain Unconditional Guaranty of RTI dated as of January
10, 2000 (the "RTI Guaranty"), (iv) that certain Unconditional Guaranty of RTIE
dated as of January 10, 2000 (the "RTIE Guaranty"), and (v) that certain
Unconditional Guaranty of RTI Electronics dated as of January 10, 2000 (the "RTI
Electronics Guaranty").
F. As security for any and all indebtedness, liabilities and obligations of
the Borrower to the Bank, then existing or thereafter arising, the Borrower: (i)
granted to the Bank a security interest in and lien on: (a) all of the
Borrower's assets, then owned or thereafter acquired, including, without
limitation, all accounts, contract rights, inventory, fixtures, machinery,
- 2 -
equipment, general intangibles, and (b) all of Borrower's rights under a certain
contract with Production Machinery Corporation in Talcahuano, Chile for the sale
of and the proceeds of a Five Million Twenty-Five Thousand Dollars ($5,025,000)
documentary letter of credit issued by Bank One, Columbus, Ohio pursuant to that
certain Security Agreement dated as of October 20, 1993, as amended July 31,
1998 between the Borrower and the Bank (as amended, the "Borrower Security
Agreement"); (ii) assigned, pledged and granted to Bank a security interest in
all of the issued and outstanding stock of Deuer, RTI, RTIE and RTI Electronics
pursuant to that certain Second Amended and Restated Pledge Agreement dated as
of July 31, 1998 (the "Borrower Pledge Agreement"); and (iii) granted to the
Bank a first mortgage lien on certain real property of the Borrower and
improvements thereon located in Dresher, Upper Dublin Township, Xxxxxxxxxx
County, Pennsylvania (the "Pennsylvania Property") pursuant to that certain
First Mortgage and Security Agreement dated as of October 20, 1993, as amended
on July 21, 1995, February 20, 1997, July 31, 1998, January 10, 2000 and April
15, 2002 (as amended, the "Borrower Mortgage and Security Agreement").
G. As security for any and all indebtedness, liabilities and obligations of
Deuer to the Bank, then existing or thereafter arising, Deuer: (i) granted to
the Bank a security interest in and lien on all of Deuer's assets, then owned or
thereafter acquired, including, without limitation, all accounts, contract
rights, inventory, fixtures, machinery, equipment, general intangibles pursuant
to that certain Security Agreement dated as of October 20, 1993, as amended July
31, 1998 between Deuer and the Bank (as amended, the "Deuer Security
Agreement"); and (ii) granted to the Bank a first mortgage lien on certain real
property of Deuer and improvements thereon located in Moraine, Xxxxxxxxxx
County, Ohio (the "Ohio Property") pursuant to that certain First Mortgage and
Security Agreement dated as of October 20, 1993, as amended July 21, 1995,
February 20, 1997, July 31, 1998, January 10, 2000 and April 15, 2002 (as
amended, the "Deuer Mortgage and Security Agreement").
H. As security for any and all indebtedness, liabilities and obligations of
RTI to the Bank, then existing or thereafter arising, RTI: (i) granted to the
Bank a security interest in and lien on all of RTI's assets, then owned or
thereafter acquired, including, without limitation, all accounts, contract
rights, inventory, fixtures, machinery, equipment, general intangibles pursuant
to that certain Security Agreement dated as of October 20, 1993, as amended July
31, 1998 between RTI and the Bank (as amended, the "RTI Security Agreement");
(ii) granted to the Bank a security interest in and lien on certain patents and
trademarks and other intellectual property pursuant to that certain Patent and
Trademark Security dated as of October 20, 1993, as amended July 31, 1998
between RTI and the Bank (the "RTI Patent and Trademark Security Agreement");
and (iii) granted to the Bank a first mortgage lien on certain real property of
RTI and improvements thereon located in Xxxxxx County, Minnesota (the "Minnesota
Property") pursuant to that certain Mortgage, Security Agreement and Fixture
Financing Statement dated as of June 30, 1999, as amended January 10, 2000 and
April 15, 2002 (as amended, the "RTI Mortgage and Security Agreement").
I. As security for any and all indebtedness, liabilities and obligations of
RTIE to the Bank, then existing or thereafter arising, RTIE granted to the Bank
a security interest in all of RTIE's assets, then owned or thereafter acquired,
including, without limitation, all accounts,
- 3 -
contract rights, inventory, fixtures, machinery, equipment, general intangibles
pursuant to that certain Security Agreement dated as of October 20, 1993, as
amended July 31, 1998 between RTIE and the Bank (as amended, the "RTIE Security
Agreement").
J. As security for any and all indebtedness, liabilities and obligations of
RTI Electronics to the Bank, then existing or thereafter arising, RTI
Electronics granted the Bank a security interest in all of RTI Electronic's
assets, then owned or thereafter acquired, including, without limitation, all
accounts, contract rights, inventory, fixtures, machinery, equipment, general
intangibles pursuant to that certain Security Agreement dated as of October 20,
1993, as amended February 20, 1997 and July 31, 1998 between RTI Electronics and
the Bank (as amended, the "RTI Electronics Security Agreement").
K. The Borrower, the Guarantors, and the European Subsidiaries entered into
that certain Waiver and Amendment Agreement dated as of November 20, 2001, as
amended by that certain First Amendment to Waiver and Amendment Agreement dated
as of February 28, 2002 and that certain Second Amendment to Waiver and
Amendment Agreement dated as of March 20, 2002 (as amended, the "First Waiver
Agreement"), pursuant to which the Bank agreed to waive certain Financial
Covenant Defaults (as defined therein) and provide a new credit facility
pursuant to which the Bank's London Branch agreed to issue certain advance
payment guarantees. In consideration of issuing certain advance payment
guarantees of their behalf, each European Subsidiaries executed a General
Counter Indemnity in favor of the Bank (collectively, the "General Counter
Indemnities").
L. The Borrower, the Guarantors, and the European Subsidiaries entered into
that certain Second Waiver and Amendment Agreement dated as of April 15, 2002
(the "Second Waiver Agreement"), pursuant to which the Bank agreed to provide
the Borrower with a new supplemental credit facility evidenced by that certain
Supplemental Credit Facility Note dated as of April 15, 2002 in the original
principal amount of Five Million Dollars ($5,000,000) (the "Supplemental Credit
Facility Note"). In connection therewith, Selas SAS guaranteed and became surety
for all loans, advances, credit or other financial accommodations made for the
benefit of the Borrower, CFR, and/or one or more Guarantors (the "Selas SAS
Guaranty"), and CFR guaranteed and became surety for all loans, advances, credit
or other financial accommodations made for the benefit of the Borrower, Selas
SAS, and/or one or more Guarantors (the "CFR Guaranty").
M. The First Waiver Agreement, the Second Waiver Agreement, the Credit
Agreement, the Notes, the Borrower Surety Agreements, the Selas SAS Facility
Agreement, the Selas SAS Term Loan Agreements, the Selas SAS Surety Agreements,
the Selas SAS Guaranty, the CFR Guaranty, the General Counter Indemnities, the
Borrower Security Agreement, the Borrower Pledge Agreement, the Borrower
Mortgage and Security Agreement, the Deuer Security Agreement, the Deuer
Mortgage and Security Agreement, the RTI Security Agreement, the RTI Patent and
Trademark Security Agreement, the RTI Mortgage and Security Agreement, the RTIE
Security Agreement, the RTI Electronics Security Agreement, together with the
various agreements, instruments and other documents executed in connection
therewith and all
- 4 -
amendments and modifications thereto, now or hereafter in effect, shall be
referred to hereinafter as the "Loan Documents".
N. The Bank, the Borrower, the Guarantors, and the European Subsidiaries,
pursuant to the terms hereof, wish to amend the Second Waiver Agreement to
provide for: (i) the limiting of the Selas SAS Guaranty and the CFR Guaranty;
(ii) the extinguishment of any additional availability for Advance Payment
Guarantees under the First Waiver Agreement; and (iii) the issuance of an
advance payment guaranty to Voest Alpine Xxxxx GmbH ("Voest") under the Second
Waiver Agreement, as amended hereby.
NOW, THEREFORE, incorporating the Background by reference herein and for
other good and valuable consideration, the Bank, the Borrower, the Guarantors,
and the European Subsidiaries intending to be legally bound hereby, agree as
follows:
ARTICLE I - DEFINED TERMS
-------------------------
1.1 DEFINED TERMS. Terms used herein which are capitalized but not defined
shall have the meanings ascribed to such terms in the Loan Documents, as amended
hereby.
ARTICLE II - - AMENDMENTS
-------------------------
2.1 AMENDMENT TO SECTION 1.1.1 OF THE SECOND WAIVER AGREEMENT. Section
1.1.1 of the Second Waiver Agreement is hereby amended and restated in its
entirety to read as follows:
2.1.1 The Borrower, the U.S. Guarantors and the European Subsidiaries
acknowledge and agree that, as of the effective date of this Second Waiver
Agreement, after giving effect to the amendments described herein: (i)
except as specifically provided in Section 1.1.5 hereof, they are jointly
and severally indebted and liable to the Bank in respect of the outstanding
principal amount of the Notes, together with accrued and unpaid interest
thereon, and all other Obligations; (ii) the Notes mature and are due and
payable in full on the respective maturity dates set forth below next to
each such Note; and (iii) the outstanding principal amount of each Note as
of April 8, 2002, is set forth below next to each such Note:
Outstanding
Promissory Notes Maturity Date Principal Amount
---------------- ------------- ----------------
Term Note D 07/01/2004 $ 652,500.00 (US Dollar)
Term Note E 02/01/2006 $1,533,333.38 (US Dollar)
Term Note F 02/01/2006 S$1,452,789.00 (Singapore Dollars)
- 5 -
Revolving Credit Note 01/31/2003 $3,731,137.09 (US Dollars)
2.2 AMENDMENT TO SECTION 1.1.2 OF THE SECOND WAIVER AGREEMENT. Section
1.1.2 of the Second Waiver Agreement is hereby amended and restated in its
entirety to read as follows:
2.2.1 The Borrower, the U.S. Guarantors and the European Subsidiaries
acknowledge and agree that, as of the effective date of this Second Waiver
Agreement, after giving effect to the amendments described herein: (i)
except as specifically provided in Section 1.1.5 hereof, they are jointly
and severally indebted and liable to the Bank in respect of the Selas SAS
Term Loan Agreements, the Overdraft Facility and all other amounts
outstanding under the Selas SAS Facility Agreement, together with accrued
and unpaid interest thereon, and all other Guaranteed Obligations (as such
term is defined in the Selas SAS Surety Agreements); (ii) the Selas SAS
Term Loan Agreements mature and are due and payable in full, together with
all interest accrued thereon, on the respective maturity dates set forth
below; (iii) the Overdraft Facility and all other amounts outstanding under
the Selas SAS Facility Agreement are on an "on demand" basis and the Bank
may make demand therefor at any time and for any reason in its sole and
absolute discretion; and (iv) as of April 8, 2002, the outstanding
principal amounts owing to the Bank in respect of the Selas SAS Term Loan
Agreements and the Overdraft Facility are set forth below next to each such
agreement or facility:
(i) The Selas SAS 1998 Term Loan Agreement, in the outstanding principal
amount of 457,347.06 (Euros), which matures on the Selas SAS 1998
Term Loan Maturity Date (as defined in the Credit Agreement, as
amended hereby);
(ii) The Selas SAS 2000 Term Loan Agreement, in the outstanding principal
amount of E1,051,895.02 (Euros), which matures on the Selas SAS 2000
Term Loan Maturity Date (as defined in the Credit Agreement, as
amended hereby); and
(iii) The Overdraft Facility, in the outstanding principal amount of
E5,976,854.11 (Euros), which matures on the Supplemental Credit
Facility Maturity Date (as defined in the Credit Agreement, as
amended hereby).
2.3 AMENDMENT TO SECTION 1.1.3 OF THE SECOND WAIVER AGREEMENT. Section
1.1.3 of the Second Waiver Agreement is hereby amended and restated in its
entirety to read as follows:
2.3.1 The Borrower, the U.S. Guarantors and the European Subsidiaries
acknowledge and agree that as of the effective date of this Second Waiver
Agreement, except as specifically provided in Section 1.1.5 hereof, they
are jointly
- 6 -
and severally indebted and liable to the Bank in respect of the following
outstanding advance payment guarantees that were issued under the Waiver
Agreement:
(i) Advance Payment Guaranty in the amount of E2,199,000 (Euros) to Voest
Alpine Xxxxx GmbH on behalf of Selas SAS expiring not later than
February 28, 2003;
(ii) Advance Payment Guaranty in the amount of Norwegian Kroners 1,305,000
to Sor-Norge Aluminum AS on behalf of CFR expiring not later than
August 31, 2002; and
(iii) Advance Payment Guaranty in the amount of E25,192.20 (Euros) to
Vallourec Precision Etirage on behalf of CFR expiring not later than
November 30, 2002.
2.4 AMENDMENT TO SECTION 2.5 OF THE SECOND WAIVER AGREEMENT. Section 2.5 of
the Second Waiver Agreement is hereby amended by deleting Subsection 2.1.3(a) of
the Credit Agreement, and replacing such Subsection 2.1.3(a) in its entirety,
with the following:
(a) The European Subsidiaries shall have assigned and transferred to the
Bank duly perfected, valid, first-priority security interests in and liens
on all now owned and hereafter acquired accounts receivable and all other
rights to payment of money of the European Subsidiaries, and the proceeds
thereof, pursuant to such agreements and documents which shall be in form
and substance acceptable in all respects to the Bank and its counsel in
their sole and absolute discretion. Such documentation shall include,
without limitation, representations and warranties of the European
Subsidiaries that the billed accounts receivable (excluding all unbilled
and xxxx-and-hold accounts receivable): have a net realizable value at all
times of not less than Six Million Euros (E6,000,000), are valid
obligations of the account debtors thereof, are not subject to any
defenses, counterclaims or reduction, and are fully collectible.
Notwithstanding the foregoing, the Bank acknowledges and agrees that the
security interest in and lien upon such European Subsidiaries' accounts
receivable shall not be perfected or enforceable against such account
debtors thereof absent notification to the account debtors as may be given
pursuant to Section 2.1.6(b) hereof. The European Subsidiaries shall have
provided an opinion of their counsel as to the validity and enforceability
of such security interests and liens, the Selas SAS Guaranty, the CFR
Guaranty, and all other documents executed by the European Subsidiaries in
connection herewith, acceptable to the Bank and its counsel in their sole
and absolute discretion.
2.5 AMENDMENT TO SECTION 2.5 OF THE SECOND WAIVER AGREEMENT. Section 2.5 of
the Second Waiver Agreement is hereby amended by deleting Subsection 2.1.6(b) of
the Credit Agreement and replacing such Subsection 2.1.6(b) in its entirety with
the following:
- 7 -
(a) Each European Subsidiary hereby agrees to assign all of its
accounts receivable and rights to payment of money, now existing and
hereafter arising, to the Bank as such accounts receivable or other
rights to payment of money arise or are created. Upon an Event of
Default, the European Subsidiaries hereby authorize the Bank to notify
each account debtor and person owing money to each European Subsidiary
to remit payment on the account or contract directly to the Bank.
2.6 NEW SECTION 1.1.5 OF THE SECOND WAIVER AGREEMENT. New Section 1.1.5 is
added to the Second Waiver Agreement as follows:
2.6.1 Notwithstanding anything contained herein or any other Loan
Document, no European Subsidiary shall be liable for any obligation to
the extent that such obligation: (a) is not attributable to loans,
credit, borrowings, overdrafts or advance payment guarantees made to
or for the benefit of such European Subsidiary, or (b) does not
directly or indirectly benefit such European Subsidiary (whether by
advances from the Lender, Borrower, Guarantors, or otherwise).
2.7 NEW SECTION 1.9 OF THE SECOND WAIVER AGREEMENT. New Section 1.9 is
added to the Second Waiver Agreement as follows:
2.8 Extinguishment of APG Availability Under Waiver and Amendment
Agreement. The Borrower, the U.S. Guarantors and the European Subsidiaries
hereby acknowledge and agree that any remaining availability for the issuance of
Advance Payment Guarantees pursuant to Section 4.1 of the Waiver Agreement is
hereby extinguished and terminated.
2.9 NEW SECTION 1.10 OF THE SECOND WAIVER AGREEMENT. New Section 1.10 is
added to the Second Waiver Agreement as follows:
2.10 Second Advance Payment Guaranty to Voest. The Borrower, the U.S.
Guarantors and the European Subsidiaries hereby acknowledge and agree that, the
London Branch will issue, on or after June 21, 2002, an advance payment guaranty
in the amount of E1,466,000 Euros to Voest Alpine Xxxxx GmbH ("Voest") on behalf
of Selas SAS, subject in all events to the terms, conditions and covenants
contained in Section 2.1.3(b), (c) and (d) of the Credit Agreement, as amended
hereby, and the prior satisfaction of the following conditions:
(a) Selas SAS shall provide the Bank with a valid, enforceable
mortgage lien in the amount of Two Million Eight Hundred Thousand
Euros (E2,800,000.00), subordinate only to that certain mortgage
held by Societe General in an amount not to exceed Seven Hundred
and Thirty-One Thousand Seven Hundred and Fifty-Five Euros
(E731,755.00), on its building and real property located at Place
des Barbanniers, 0/0 Xxxxx xx Xxxxxxx, 00000 Xxxxxxxxxxxxx,
Xxxxxx, and such mortgage shall be in place and duly recorded
against such property no later than July 30, 2002;
(b) The Borrower and the European Subsidiaries shall execute the
documentation required to effectuate the assignment of the European
Subsidiaries'
- 8 -
accounts receivable and other rights to payment of money to the Bank
as set forth in Section 2.1.3(a) of the Credit Agreement, and such
assignment shall be made no later than July 30, 2002;
(c) The Borrower shall pay, on demand, all reasonable costs and
expenses, including fees and expenses of counsel for the Bank, in
connection with the negotiation and documentation of this Amendment
and the documents described or referenced herein, including those
documents described in subsections (a) and (b) of this Section 1.10;
and
(d) The Bank, the Borrower, the U.S. Guarantors and the European
Subsidiaries hereby acknowledge that the amount available under the
Supplemental Credit Facility is insufficient by itself to cover the
advance payment guaranty contemplated by this Section 1.10. In order
to provide the needed additional availability, the Bank Borrower, the
U.S. Guarantors and the European Subsidiaries hereby acknowledge and
agree that the Bank may obtain additional availability through
restricting the availability under the domestic Revolving Credit
Commitment. The decision to restrict availability under the Revolving
Credit Commitment shall be made solely by, and in the absolute
discretion of, the Bank and, once made, shall be binding upon the
Borrower, the U.S. Guarantors and the European Subsidiaries. Upon
satisfaction of the conditions contained in Sections 1.10(a), 1.10(b)
and 2.1.3 hereof, the Bank shall release restricted availability under
the Revolving Credit Commitment to the extent that additional
availability is provided by the Supplemental Credit Facility.
2.11 NEW SECTION 6.9 OF THE SECOND WAIVER AGREEMENT. New Section 6.9 is
added to the Second Waiver Agreement as follows:
2.12 Failure of Conditions. The Borrower or any European Subsidiary shall
fail to meet any one of the conditions contained in Sections 1.10(a) and (b)
hereof, or there shall exist a default under any one of the documents required
by such sections.
ARTICLE III - REAFFIRMATION
---------------------------
The Borrower, the Guarantors and the European Subsidiaries (i) acknowledge and
consent to the terms and conditions set forth in this Amendment, (ii) hereby
ratify, affirm and reaffirm in all respects each and all of the Loan Documents,
including, without limitation, all terms, conditions, representations and
covenants and General Release contained therein, all of which shall be effective
as of the date hereof, and (iii) acknowledge the continued existence, validity
and enforceability of the Loan Documents, and acknowledge and agree that the
Bank holds a perfected security interest in the Collateral to secure the
Borrower's Obligations and agree that the terms, conditions, representations and
covenants contained in the Security Agreement are binding upon each of them.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Amendment, the Borrower, the
Guarantors and the
- 9 -
European Subsidiaries make the following representations and warranties to the
Bank, each and all of which shall survive the execution and delivery of this
Amendment:
4.1 NO VIOLATION OF APPLICABLE LAWS. The execution, delivery and
performance by the Borrower, the Guarantors and the European Subsidiaries of
this Amendment are within their corporate powers, have been duly authorized by
all necessary action taken by their duly authorized officers and, if necessary,
by making appropriate filings with any governmental agency or unit and are the
legal, binding, valid and enforceable obligations of the Borrower, the
Guarantors and the European Subsidiaries; and do not (i) contravene, or
constitute (with or without the giving of notice or lapse of time or both) a
violation of any provision of applicable law, a violation of the organizational
documents of the Borrower, the Guarantors and the European Subsidiaries or a
default under any agreement, judgment, injunction, order, decree or other
instrument binding upon or affecting the Borrower, the Guarantors and the
European Subsidiaries, (ii) result in the creation or imposition of any lien on
any of their assets (other than liens in favor of the Bank) or (iii) give cause
for the acceleration of any obligations of the Borrower, the Guarantors or the
European Subsidiaries to any other creditor.
4.2 DUE AUTHORIZATION. Each person executing this Amendment on behalf of
the Borrower, the Guarantors and/or the European Subsidiaries is duly authorized
by such respective entity to execute same.
4.3 ENFORCEABILITY. This Amendment will be, the legal, valid and binding
obligation of the Borrower, the Guarantors and the European Subsidiaries,
enforceable against them in accordance with their respective terms, subject only
to bankruptcy, insolvency, reorganization, moratorium or other laws or equitable
principles affecting creditors' rights generally.
4.4 COMPLIANCE WITH APPLICABLE LAWS. The Borrower is in compliance in all
material respects with all laws (including all applicable environmental laws),
regulations, and requirements applicable to its business and has not received,
and has no knowledge of, any order or notice of any governmental investigation
or of any violation or claim of violation of any law, regulation or other
governmental requirement which would have a material adverse effect upon its
business operations or financial condition.
4.5 REPRESENTATION AND WARRANTIES. All representations and warranties made
by the Borrower in the Loan Documents are true and correct as of the date of
this Amendment as if such representations and warranties have been made on the
date hereof.
ARTICLE V - CONDITIONS TO CLOSING
---------------------------------
CONDITIONS PRECEDENT TO ENFORCEABILITY OF THIS AMENDMENT. This Amendment
shall be deemed effective only after the occurrence of the following events:
5.1 EXECUTION OF AMENDMENT. The Borrower's, Guarantors' and European
Subsidiaries' execution and delivery to the Bank of this Amendment;
5.2 OTHER DOCUMENTS. The Borrower, the Guarantors, and/or the European
Subsidiaries shall deliver, in form and substance reasonably satisfactory to the
Bank: (i) Certifications of Authority and Corporate Resolutions for each of the
Borrower, the Guarantors,
- 10 -
and the European Subsidiaries, certified by their respective Secretaries,
authorizing and approving this Amendment, and the documents and payments
specified herein; (ii) Opinions of counsel for each of the Borrower and the
Guarantors, satisfactory to the Bank in all respects; and
5.3 FEES AND COSTS. The Borrower's payment to the Bank of an amount
sufficient to cover all of the Bank's reasonable costs and expenses to date,
including, without limitation, the Bank's reasonable costs and expenses incurred
in connection with the preparation and negotiation of this Amendment (including
the fees and expenses of the Bank's counsel) through the date of this Amendment.
ARTICLE VI - MISCELLANEOUS
--------------------------
6.1 CONTINUING EFFECT. Except as amended hereby, all of the Loan Documents
shall remain in full force and effect and bind and inure to the benefit of the
parties thereto and are hereby ratified and confirmed.
6.2 NO WAIVER. Except as expressly provided in the First Waiver Agreement,
the Bank has not waived and does not waive any defaults or Events of Default,
now or hereafter existing, whether known or unknown; and the Bank hereby
reserves and preserves any and all rights and remedies available to it under the
Loan Documents with respect to any such defaults or Events of Default.
6.3 COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed by
facsimile signatures and in any number of counterparts and by the different
parties on separate counterparts, and each such counterpart shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same Amendment. This Amendment shall be deemed to have been executed and
delivered when the Bank has received facsimile counterparts hereof executed by
all parties listed on the signature pages hereto.
6.4 GOVERNING LAW. This Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
- 11 -
6.5 INTEGRATION. This Amendment contains the entire agreement between the
parties hereto with respect to the subject matter hereof and may not be modified
or changed in any way except in writing signed by all parties.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their duly authorized officers on the date first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
BY:________________________________________
NAME:
TITLE:
SELAS CORPORATION OF AMERICA
BY:________________________________________
NAME:
TITLE:
SELAS SAS
BY:________________________________________
NAME:
TITLE:
CFR-CECF FOFUMI RIPOCHE
BY:________________________________________
NAME:
TITLE:
- 12 -
DEUER MANUFACTURING, INC.
BY:________________________________________
NAME:
TITLE:
RESISTANCE TECHNOLOGY, INC.,
BY:________________________________________
NAME:
TITLE:
RTI EXPORT, INC.
BY:________________________________________
NAME:
TITLE:
RTI ELECTRONICS, INC.
BY:________________________________________
NAME:
TITLE:
- 13 -
