EXHIBIT 4I
SECOND AMENDMENT TO
WAIVER AND AMENDMENT AGREEMENT
This Second Amendment to Waiver and Amendment Agreement (the
Amendment) dated as of March 20, 2002 is made and entered into
by and among First Union National Bank, a national banking
association, 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 ($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 and the Revolving Credit
Note 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 (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 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) (the Selas SAS 1998 Term Loan Agreement); and
an agreement dated January 2000 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) (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 Borrowers
assets, then owned or thereafter acquired, including, without
limitation, all accounts, contract rights, inventory, fixtures,
machinery, equipment, general intangibles, and (b) all of
Borrowers 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 and January
10, 2000 (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 Deuers 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, and January 10, 2000 (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 RTIs 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 (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
RTIEs 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 Electronics 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 (as amended, the 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 Banks London Branch agreed to
issue certain advance payment guarantees.
L. The 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 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 amendments and modifications thereto, now or hereafter in
effect, shall be referred to hereinafter as the Loan Documents.
M. The Bank, the Borrower, the Guarantors, and the
European Subsidiaries, pursuant to the terms hereof, wish to
amend the Credit Agreement, as provided herein.
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 of the Definition of Revolving Credit
Termination Date. The following definition in the Credit
Agreement is hereby amended, restated and replaced as follows:
Revolving Credit Termination Date is hereby amended
to mean the earlier of (i) April 15, 2002 (as such
date may be extended from time to time in accordance
with Section 2.8 hereof) or (ii) the date on which the
Revolving Credit Commitment is terminated pursuant to
Section 9.2 hereof.
2.2 Amendment of the Definition of Waiver Agreement. The
definition of Waiver Agreement is hereby amended, as follows:
Waiver Agreement shall mean that certain Waiver and
Amendment Agreement, dated as of November 20, 2001, by
and among the Bank, the Borrower, the European
Subsidiaries, and the Guarantors, as the same may be
amended from time to time.
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 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 Failure of Conditions. The Borrower has failed to
satisfy the conditions precedent for issuance of Advance Payment
Guarantees as disclosed on Exhibit 4.5 hereto.
4.6 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; and
5.2 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 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 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.
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.
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
SELAS CORPORATION OF
AMERICA
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President, Treasurer &
Secretary
SELAS SAS
By: /s/ Christian Bailliart
Name: Xxxxxxxxx Xxxxxxxxx
Title: President
CFR-CECF FOFUMI RIPOCHE
By: /s/ Christian Bailliart
Name: Xxxxxxxxx Xxxxxxxxx
Title: President
DEUER MANUFACTURING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President & Treasurer
RESISTANCE TECHNOLOGY, INC.,
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President & Treasurer
RTI EXPORT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President & Treasurer
RTI ELECTRONICS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President & Treasurer
Exhibit 4.5
Pursuant to Section 4.2.2(d) of the Waiver Agreement, on
February 28, 2002, the Borrower, the Guarantors and Selas SAS are
required to repay amounts outstanding as necessary to reduce the
Overdraft Facility to an amount not greater than E4,650,000
Euros. As of the date hereof, the Overdraft Facility has a
balance of approximately E6,000,000 Euros and the Borrower, the
Guarantors and Selas SAS have indicated an inability to make the
necessary payment to reduce the Overdraft Facility to the
required level.
Pursuant to Section 4.2.2(e) of the Waiver Agreement, on or
before February 28, 2002, the Borrower is required to provide the
Bank with a written certification that the 2001 fourth quarter
pre-tax losses, if any, for the Borrower, the Guarantors, Selas
SAS, CFR, and their affiliates, on a consolidated basis are not
more than $200,000. The Borrower has indicated that the
consolidated 2001 fourth quarter pre-tax losses exceed $200,000.
Pursuant to Section 4.2.2(f) of the Waiver Agreement, the
Borrower is required to provide the Bank with a copy of a written
offer to purchase Selas SAS on or before February 28, 2002. The
Borrower has indicated an ability to obtain such an offer.
