Exhibit 4K
THIRD AMENDMENT TO
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SECOND WAIVER AND AMENDMENT AGREEMENT
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This Third Amendment to Second Waiver and Amendment Agreement (the
"Amendment") dated as of November 14, 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
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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").
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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 ($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. The Bank's 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").
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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, 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").
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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, 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 Subsidiary 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, as amended by that certain First Amendment to Second Waiver and Amendment
Agreement dated as of June 24, 2002 and that certain Second Amendment to Second
Waiver and Amendment Agreement dated as of July 30, 2002 (as amended, 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
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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 amendments and modifications thereto,
now or hereafter in effect, shall be referred to hereinafter as the "Loan
Documents".
N. The Borrower has informed the Bank that, in the absence of the
waiver provided herein, Events of Default would occur under the Credit Agreement
as a result of (i) the Borrower's monthly net losses from Discontinued
Operations as of August 31, 2002 exceeding the maximum monthly net loss level
provided under the Credit Agreement, (ii) the Borrower's monthly net losses from
Discontinued Operations as of September 30, 2002 exceeding the maximum monthly
net loss level provided under the Credit Agreement, (iii) the Borrower's
quarterly net losses from Discontinued Operations as of September 30, 2002
exceeding the maximum quarterly net loss level provided under the Credit
Agreement, and (iv) the Borrower's failure to maintain the minimum Consolidated
Tangible Capital Funds amount as of September 30, 2002 (collectively, the
"Discontinued Operation Covenant Defaults").
O. The Bank, the Borrower, the Guarantors, and the European
Subsidiaries, pursuant to the terms hereof, wish to amend the Second Waiver
Agreement to: (i) waive the Discontinued Operation Covenant Defaults (ii)
extinguish any additional availability under the Supplemental Credit Facility,
and (iii) remove the requirement that the European Subsidiaries provide the Bank
with additional security with respect to the Supplemental Credit Facility.
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
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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 - WAIVER OF DISCONTINUED OPERATION COVENANT DEFAULTS
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2.1 WAIVER OF DISCONTINUED OPERATION COVENANT DEFAULTS. Subject to the
provisions hereof, the Bank hereby waives the Discontinued Operation Covenant
Defaults. Notwithstanding the foregoing, the Bank's waiver of the Discontinued
Operation Covenant Defaults, or any communication between the Bank, the
Borrower, the Guarantors, the European Subsidiaries, or each of their respective
officers, agents, employees or representatives, shall not be deemed to
constitute a waiver of (i) any default or Event of Default, whether now existing
or hereinafter arising, under the Loan Documents, other than the Discontinued
Operation Covenant Defaults; (ii) the ongoing obligation of the Borrower, the
Guarantors and the European Subsidiaries to comply with the Credit Agreement and
the other Loan Documents as amended hereby; or (iii) any rights or remedies
which the Bank has against the Borrower, the Guarantors, or the European
Subsidiaries under the Loan Documents and/or applicable law, with respect to
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any default or Event of Default, other than rights and remedies which directly
result from the occurrence and existence of the Discontinued Operation Covenant
Defaults. The Bank hereby reserves and preserves all of its rights and remedies
against the Borrower, the Guarantors, and the European Subsidiaries under the
Loan Documents and applicable law, other than the right to declare an Event of
Default or exercise remedies based upon the occurrence and existence of the
Discontinued Operation Covenant Defaults.
ARTICLE III - AMENDMENTS
------------------------
3.1 AMENDMENT TO SECTION 2.5 OF THE SECOND WAIVER AGREEMENT. Section
2.5 of the Second Waiver Agreement is hereby amended by deleting Subsection
2.1.1 of the Credit Agreement, and replacing such Subsection 2.1.1 in its
entirety, with the following:
2.1.1 Supplemental Credit Facility. Subject in all events to the terms,
conditions and covenants contained in this Section 2.1 and Article IV
of the Second Waiver Agreement and in the other Waiver Documents, and
provided that there is no default, Default or Event of Default under
any of the Loan Documents, the Bank agrees to make available to the
Borrower a credit facility (the "Supplemental Credit Facility") in the
maximum aggregate amount of Two Million U.S. Dollars ($2,000,000) (the
"Supplemental Credit Facility Sub-Limit"). At no time shall the maximum
aggregate amount of the Supplemental Credit Facility exceed the
Supplemental Credit Facility Sub-Limit.
3.2 AMENDMENT TO SECTION 2.5 OF THE SECOND WAIVER AGREEMENT. Section
2.5 of the Second Waiver Agreement is hereby amended by deleting Subsection
2.1.2 of the Credit Agreement, and replacing such Subsection 2.1.2 in its
entirety, with the following:
2.1.2 Selas SAS Facility. The Bank shall have no obligation to make any
further extension of credit under the Selas SAS Facility.
3.3 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 of the Credit Agreement, and replacing such Subsection 2.1.3 in its
entirety, with the following:
2.1.3 Specific Conditions Precedent to Issuance of Advance Payment
Guarantees. The Bank's issuance of any Advance Payment Guaranty is
subject, in each case, to the prior satisfaction of all of the
following conditions precedent which the Borrower, the U.S. Guarantors,
and the European Subsidiaries acknowledge are material:
(a) For each Advance Payment Guaranty, the European Subsidiaries,
the Borrower and the U.S. Guarantors shall have executed and
delivered (or
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caused to be executed and delivered) to the Bank such
documents and agreements, as the Bank, in its sole and
absolute discretion, may require, including, without
limitation, the following:
(i) A facility agreement for each Advance Payment
Guaranty, duly executed by the particular European
Subsidiary on whose behalf such Advance Payment
Guaranty will be issued, the Borrower, the U.S.
Guarantors and the other European Subsidiary, that
will include certain terms and conditions for the
issuance of the Advance Payment Guarantees, such as
duration of such Advance Payment Guaranty, applicable
fees, interest rates, penalty interest, and other
terms and conditions, as the Bank determines in its
sole and absolute discretion;
(ii) a General Counter Indemnity, duly executed by the
particular European Subsidiary on whose behalf such
Advance Payment Guaranty will be issued, the
Borrower, the U.S. Guarantors and the other European
Subsidiary that will include such terms and
conditions as the Bank determines in its sole and
absolute discretion; and
(iii) such other documents as the Bank, in its sole
discretion, may require, including, but not limited
to a legal opinion from counsel to the European
Subsidiaries in form and substance acceptable to the
Bank.
(b) There shall not be a default, a Default or an Event of Default
under any of the Loan Documents, or any other document
executed or delivered in connection with any Advance Payment
Guaranty or any other Loan Document (other than the Financial
Covenant Defaults that were waived in the Waiver Agreement);
and
(c) The requirements of Article IV of the Second Waiver Agreement
shall have been satisfied.
3.4 AMENDMENT TO SECTION 2.5 OF THE SECOND WAIVER AGREEMENT. Section
2.5 of the Second Waiver Agreement is hereby amended by deleting Subsection
2.1.6 of the Credit Agreement in its entirety.
3.5 AMENDMENT TO SECTION 6.2 OF THE SECOND WAIVER AGREEMENT. Section
6.2 of the Second Waiver Agreement is hereby deleted in its entirety and
replaced with the following new Section 6.2:
6.2 Breach of Covenants. Except for the Discontinued Operation Covenant
Defaults, the Borrower, any U.S. Guarantor, or any European Subsidiary
shall fail to perform or observe any covenant, term or agreement in the
Waiver Agreement,
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this Second Waiver Agreement, the other Waiver Documents or any other
Loan Document or is in violation of or non-compliance with any
provision of the Waiver Agreement, this Second Waiver Agreement, the
other Waiver Documents or any other Loan Document after the expiration
of any applicable cure period, if any, set forth in any such Loan
Document with respect to such covenant, term or agreement.
3.6 AMENDMENT TO SECTION 6.8 OF THE SECOND WAIVER AGREEMENT. Section
6.8 of the Second Waiver Agreement is hereby deleted in its entirety and
replaced with the following new Section 6.8:
6.8 Event of Default Under Other Loan Documents. An Event of Default
(as such term is defined in the Credit Agreement) or a Default or an
Event of Default (as each such term is defined in the other Loan
Documents) (other than the Discontinued Operation Covenant Defaults)
shall occur under any of the Loan Documents.
ARTICLE IV - 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 V - REPRESENTATIONS AND WARRANTIES
------------------------------------------
To induce the Bank to enter into this Amendment, the Borrower, the
Guarantors and the 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:
5.1 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
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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.
5.2 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.
5.3 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.
5.4 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.
5.5 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 VI - CONDITIONS TO CLOSING
----------------------------------
CONDITIONS PRECEDENT TO ENFORCEABILITY OF THIS AMENDMENT. This
Amendment shall be deemed effective only after the occurrence of the following
events:
6.1 EXECUTION OF AMENDMENT. The Borrower's, Guarantors' and European
Subsidiaries' execution and delivery to the Bank of this Amendment; and
6.2 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 VII - MISCELLANEOUS
---------------------------
7.1 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.
7.2 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
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rights and remedies available to it under the Loan Documents with respect to any
such defaults or Events of Default.
7.3 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.
7.4 GOVERNING LAW. This Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
7.5 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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:
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DEUER MANUFACTURING, INC.
BY:________________________________________
NAME:
TITLE:
RESISTANCE TECHNOLOGY, INC.,
BY:________________________________________
NAME:
TITLE:
RTI EXPORT, INC.
BY:________________________________________
NAME:
TITLE:
RTI ELECTRONICS, INC.
BY:________________________________________
NAME:
TITLE:
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