EXHIBIT 4.18
Return after filing to:
Wachovia Bank, National Association
PA 1246
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx, V.P.
FOURTH AMENDMENT TO MORTGAGE, SECURITY AGREEMENT
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AND FIXTURE FINANCING STATEMENT
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THIS FOURTH AMENDMENT TO MORTGAGE, SECURITY AGREEMENT AND FIXTURE
FINANCING STATEMENT (the "Amendment"), made as of March 18, 2004, is by and
between WACHOVIA BANK, NATIONAL ASSOCIATION, formerly known as First Union
National Bank, a national banking association, with offices located at Broad and
Walnut Streets, Philadelphia, Pennsylvania 19109 (the "Mortgagee") and
RESISTANCE TECHNOLOGY, INC., a Minnesota corporation having its principal place
of business at 0000 Xxx Xxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000 (the
"Mortgagor").
BACKGROUND
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A. The Mortgagor, the Mortgagee, Selas Corporation of America (the
"Borrower"), Deuer Manufacturing, Inc. ("Deuer"), RTI Export, Inc. ("RTIE"), and
RTI Electronics, Inc. ("RTI Electronics" and, together with the Mortgagor,
collectively, 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 "Existing Credit
Agreement"), pursuant to which the Mortgagee made available to the Borrower (i)
certain term loans (collectively, the "Existing Term Loans"), and (ii) a
revolving credit facility (the "Existing Revolving Credit Facility").
B. The Existing Term Loans are evidenced by, INTER ALIA, the following
promissory notes executed by the Borrower in favor of the Mortgagee: (i) Term
Note D dated as of June 30, 1999 ("Term Note D"), (ii) Term Note E dated as of
January 19, 2001 ("Term Note E"), and (iii) Term Note F dated as of January 19,
2001 ("Term Note F" and, together with Term Note D and Term Note E,
collectively, the "Existing Term Notes"). The Existing Revolving Credit Facility
is evidenced by, INTER ALIA, an Amended and Restated Revolving Credit Note dated
as of January 19, 2001 executed by the Borrower in favor of the Mortgagee (the
"Existing Revolving Credit Note").
C. The Mortgagee, through the Mortgagee's London Branch ("London
Branch"), and Selas SAS (formerly known as Selas S.A.), a corporation organized
under the laws of France and a subsidiary of the Borrower ("Selas SAS"), entered
into that certain Facility 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, and amended by that certain First
Amendment to Amended and Restated Facility Agreement dated as of
January 16, 2003, that certain Second Amendment to Amended and Restated Facility
Agreement dated as of February 27, 2003, and that certain Third Amendment to
Amended and Restated Facility Agreement dated as of March 14, 2003 (as amended,
the "Existing Selas SAS Facility Agreement"), pursuant to which the Mortgagee
provided to Selas SAS a discretionary overdraft facility (the "Existing
Overdraft Facility"), as evidenced by certain documents executed in connection
with the Existing Overdraft Facility.
D. The Mortgagee, through its London Branch, and Selas SAS also entered
into that certain term loan agreement dated January 2000, amended and restated
in its entirety by that certain agreement dated as of April 15, 2002, and
amended by that certain First Amendment to Selas SAS 2000 Term Loan Agreement
dated as of January 16, 2003, that certain Second Amendment to Selas SAS 2000
Term Loan Agreement dated as of February 27, 2003, and that certain Third
Amendment to Selas SAS 2000 Term Loan Agreement dated as of March 14, 2003 (as
amended, the "Existing Selas SAS 2000 Term Loan Agreement") pursuant to which
the Mortgagee made a term loan to Selas SAS (the "Existing Selas SAS 2000 Term
Loan"), as evidenced by certain documents executed in connection with the
Existing Selas SAS 2000 Term Loan.
E. The Borrower, the Guarantors, Deuer, RTIE, Selas SAS, CFR-CECF
Xxxxxx Xxxxxxx, a corporation organized under the laws of France and a
subsidiary of the Borrower ("CFR") and the Mortgagee 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, that certain Second Amendment to Second Waiver and Amendment
Agreement dated as of July 30, 2002, that certain Third Amendment to Second
Waiver and Amendment Agreement dated as of November 14, 2002, that certain
Fourth Amendment to Second Waiver and Amendment Agreement dated as of January
16, 2003, that certain Fifth Amendment to Second Waiver and Amendment Agreement
dated as of February 21, 2003, that certain Sixth Amendment to Second Waiver and
Amendment Agreement dated as of February 27, 2003, and that certain Seventh
Amendment to Second Waiver and Amendment Agreement dated as of March 7, 2003 (as
amended, the "Second Waiver Agreement"), pursuant to which the Mortgagee agreed,
among other things, to provide the Borrower with a supplemental credit facility
(the "Existing Supplemental Credit Facility") as evidenced by that certain
Supplemental Credit Facility Note dated as of April 15, 2002 (the "Existing
Supplemental Credit Facility Note" and, with the Existing Term Notes, the
Existing Revolving Credit Note and certain documents executed in connection with
the Existing Overdraft Facility and the Existing Selas SAS 2000 Term Loan,
collectively, the "Existing Notes").
F. The Mortgagor guaranteed and became surety for all loans, advances,
debts, liabilities, obligations, covenants and duties of the Borrower to the
Mortgagee, pursuant to 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").
G. The Mortgagor guaranteed and became surety for all loans, advances,
debts, liabilities, obligations, covenants and duties of Selas SAS to the
Mortgagee, pursuant to that certain Unconditional Guaranty of the Mortgagor
dated as of January 10, 2000 (the "RTI Guaranty").
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H. As security for any and all indebtedness, liabilities and
obligations of the Mortgagor to the Mortgagee, the Mortgagor, pursuant to that
certain Mortgage, Security Agreement and Fixture Financing Statement dated as of
June 30, 1999, and recorded on August 17, 1999 in the Office of the Recorder of
Xxxxxx County, Minnesota (the "Recorder's Office") as Document No. 3263329, as
amended by that certain First Amendment to Mortgage, Security Agreement and
Fixture Financing Statement dated as of January 10, 2000 and recorded in the
Recorder's Office on March 21, 2000 as Document No. 3312490, as further amended
by that certain Second Amendment to Mortgage, Security Agreement and Fixture
Financing Statement dated as of November 20, 2001 and recorded in the Recorder's
Office on December 24, 2001 as Document No. 3454614, as further amended by that
certain Third Amendment to Mortgage, Security Agreement and Fixture Financing
Statement dated as of April 15, 2002 and recorded in the Recorder's Office on
May 9, 2002 as Document No. 3498400 (as amended, the "Mortgage"), granted to the
Mortgagee a first mortgage lien on certain real property of the Mortgagor and
improvements thereon located in Xxxxxx County, Minnesota (the "Minnesota
Property") as more fully described on the attached Exhibit "A." The Existing
Credit Agreement, the Existing Notes, the RTI Surety Agreement, the RTI
Guaranty, the Mortgage and all documents, instruments and agreements executed in
connection therewith are referred to hereinafter collectively as the "Existing
Credit Documents."
I. The Borrower, the Mortgagor and RTIE have requested that the
Mortgagee amend, restate and consolidate the terms and conditions of the
Existing Credit Documents, and the Mortgagee has agreed to do so upon and
subject to the terms and conditions of that certain Amended, Restated and
Consolidated Loan Agreement, dated as of the date hereof, by and among the
Borrower, the Mortgagor, RTIE and the Mortgagee (the "Agreement").
J. Pursuant to the Agreement the Mortgagee has agreed to make available
to the Borrower (i) a revolving credit facility (the "Revolving Credit
Facility"), evidenced by that certain Amended and Restated Revolving Credit
Facility Note in the original principal amount of Four Million Five Hundred
Thousand Dollars ($4,500,000), dated as of even date herewith (the "Revolving
Credit Facility Note"), and (ii) a term loan (the "Term Loan"), evidenced by
that certain Xxxxxxx, Restated and Consolidated Term Loan Note in the original
principal amount of Five Million Five Hundred Eight Thousand Four Hundred Sixty
Nine and 92/100 Dollars ($5,508,469.92), dated as of even date herewith (the
"Term Note").
K. As a condition precedent to the execution of and performance under
the Agreement by the Mortgagee, the Mortgagee has required that the Mortgagor
and the other Guarantors execute and deliver that certain Amended, Restated and
Consolidated Guaranty (the "Guaranty"), dated as of even date herewith, pursuant
to which the Mortgagor and the other Guarantors jointly and severally guaranteed
and became surety for all loans, advances, debts, liabilities, obligations,
covenants and duties of the Borrower to the Mortgagee. The Agreement, the Term
Note, the Revolving Credit Facility Note, the Guaranty and all documents,
agreements and instruments executed in connection therewith are referred to
herein collectively as the "Restructuring Documents."
L. In order to further secure the obligations of the Mortgagor to the
Mortgagee under the Agreement, the Guaranty and the other Loan Documents, the
Mortgagor has requested that the Mortgagor execute this Amendment, amending
certain terms contained in the Mortgage and
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the Mortgagor acknowledges that the Mortgagee would not have entered into the
Agreement without the execution and delivery by the Mortgagor of this Amendment.
NOW THEREFORE, incorporating the foregoing Background herein by
reference and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Capitalized Terms. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Mortgage.
2. Amendments to Mortgage.
(a) The defined term "Note" as used in the Mortgage is hereby
amended to mean the Term Note and the Revolving Credit Facility Note and to
include the obligations of the Mortgagor in respect of the Term Note and the
Revolving Credit Facility Note in the obligations secured by the Mortgage. Any
reference to the singular term "Note" in the Mortgage shall be deemed to be a
reference to the plural term "Notes."
(b) The defined term "Credit Documents" as used in the Mortgage is
hereby amended to mean the Restructuring Documents and any and all other
documents, instruments and agreements evidencing or relating to the Liabilities
and all amendments, modifications or restatements of the same.
(c) The defined term "Liabilities" as used in the Mortgage is hereby
amended to mean any and all loans, advances, debts, liabilities, obligations,
covenants and duties of the Mortgagor to the Mortgagee, now existing or
hereafter arising, including without limitation, all obligations or liabilities
under the Existing Credit Documents, as amended, restated and consolidated by
the Restructuring Documents.
(d) All references in the Mortgage to the "Mortgage" are hereby
amended to mean the Mortgage as amended by this Amendment.
(e) Section 6.01 of the Mortgage is hereby amended in its entirety
to read as follows:
"Section 6.01. Events of Default. An Event of Default under any Credit
Document shall be an Event of Default hereunder."
3. Representations and Warranties. Mortgagor hereby represents and
warrants to Mortgagee that as of the date hereof:
(a) Xxxxxxxxx has the power to execute, perform and deliver this
Amendment and each of the documents, instruments and agreements to be executed
and/or delivered in connection herewith and has taken all necessary action to
authorize the execution, delivery and performance of this Amendment and each of
the documents, instruments and agreements executed and/or delivered in
connection herewith;
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(b) The Mortgage, as amended by this Amendment, is a binding and
legally enforceable obligation of Mortgagor enforceable in accordance with its
terms; and
(c) Mortgagor has no defenses, setoffs, and/or counterclaims to its
obligations under the Mortgage, as amended by this Amendment, and the documents,
instruments, and agreements executed in connection therewith and herewith.
4. No Novation. Except as expressly modified and amended by this
Amendment, the Mortgage shall remain in full force and effect in accordance with
its terms. This Amendment does not represent in any way satisfaction of the
indebtedness evidenced by the Note. It is the intention of the parties hereto
that this Amendment shall not constitute a novation of the Note or any of the
other Existing Credit Documents, or the indebtedness and obligations evidenced
or secured thereby, and shall in no way adversely affect or impair the lien
priority of the Mortgage. Mortgagor hereby ratifies, reaffirms, and confirms the
Mortgage and the obligations secured thereby.
5. Confirmation of Collateral. Mortgagor hereby represents, warrants
and reaffirms to Mortgagee that: (a) it is the intention of the parties to this
Amendment that all existing collateral security held by Mortgagee shall continue
to serve as collateral for the Mortgagor's obligations under the Credit
Documents, and (b) the Mortgage shall continue in full force and legal effect
until Mortgagor's obligations to Mortgagee are paid in full.
6. Severability. Any provision in this Amendment that is held to be
inoperative, unenforceable, voidable or invalid in any jurisdiction shall, as to
that jurisdiction, be ineffective, unenforceable, void or invalid without
affecting such provisions in any other jurisdiction, or affecting the remaining
provisions in that or any other jurisdiction and to this end the provisions of
this Amendment are declared to be severable.
7. Governing Law. This Amendment shall be construed in accordance with
and governed by the internal laws of the State of Minnesota.
8. Successors and Assigns. All provisions of this Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
9. Integration. This Amendment and the other Credit Documents
constitute the sole agreement of the parties with respect to the subject matter
hereof and thereof and supersede all oral negotiations and prior writings with
respect to the subject matter hereof and thereof.
10. Receipt of Copy. Mortgagor hereby acknowledges receipt of a true,
correct and complete copy of this Amendment as of the day and year first above
written.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by its duly authorized officer, under seal, on the day and year first
above written.
WITNESS: RESISTANCE TECHNOLOGY, INC.
By: By:
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Name: Name: Xxxxxx X. Xxxxxxxxx
Title: Title: Chief Financial Officer
WACHOVIA BANK,
NATIONAL ASSOCIATION
By:
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
STATE OF :
: ss.
COUNTY OF :
On this ____ day of March 2004, before me, a Notary Public, Xxxxxx X.
Xxxxxxxxx, the undersigned officer, personally appeared, who acknowledged
himself/herself to be Chief Financial Officer of RESISTANCE TECHNOLOGY, INC., a
Minnesota business corporation and that he/she as such officer, being authorized
to do so, executed the foregoing agreement for the purpose therein contained by
signing the name of the corporation by himself/herself as such officer.
WITNESS my hand and Notorial seal, the day and year aforesaid.
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Notary Public
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF :
On this ____ day of March 2004, before me, a Notary Public, Xxxxxxxx X.
Xxxxxxx, the undersigned officer, personally appeared, who acknowledged
himself/herself to be Vice President of WACHOVIA BANK, NATIONAL ASSOCIATION,
formerly known as First Union National Bank, a national banking association, and
that he/she as such officer, being authorized to do so, executed the foregoing
agreement for the purpose therein contained by signing the name of the
association by himself/herself as such officer.
WITNESS my hand and Notorial seal, the day and year aforesaid.
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Notary Public
EXHIBIT A
LEGAL DESCRIPTION
