Exhibit 4J
SECOND AMENDMENT TO
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SECOND WAIVER AND AMENDMENT AGREEMENT
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This Second Amendment to Second Waiver and Amendment Agreement (the
"Amendment") dated as of July 30, 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").
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
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($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,
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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").
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,
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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 , as amended by that certain First Amendment to Second Waiver and Amendment
Agreement dated as of June 24, 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 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
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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: (i) extend the deadline for the European Subsidiaries to provide
certain security to the Bank; (ii) reduce the maximum availability under the
Supplemental Credit Facility; and (iii) revise certain financial covenant
calculations.
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 - AMENDMENTS
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2.1 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")
until such time as the conditions specified in Section 2.1.3 hereof have been
satisfied, at which time the maximum aggregate amount of the Supplemental Credit
Facility shall be increased to Four Million U.S. Dollars ($4,000,000) (the
"Supplemental Credit Facility Limit"); provided however, that at no time shall
the outstanding loans or advances under the Supplemental Credit Facility exceed
Two Million U.S. Dollars ($2,000,000).
2.2 AMENDMENT TO SECTION 2.5 OF THE SECOND WAIVER AGREEMENT. Section
2.5 of the Second Waiver Agreement is hereby amended by deleting Subsection
2.1.3 of the Credit Agreement, and replacing such Subsection 2.1.3 in its
entirety, with the following:
2.1.3 Specific Conditions Precedent to Availability of Supplemental
Credit Facility. The Bank's obligation: (i) to make loans, advances or
extensions of credit under the Supplemental Credit Facility, or (ii) to
cause the Bank's London Branch to issue any Advance Payment Guarantee
under the Supplemental Credit Facility in the aggregate amount in
excess of the Supplemental Credit Facility Sub-Limit, or (iii) to issue
any Advance Payment Guarantee under the Selas SAS
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Facility, 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
(provided, however, that the conditions specified in Subsections
2.1.3(a), (b) and (c) shall not apply to the issuance of Advance
Payment Guarantees or loans and advances under the Supplemental Credit
Facility in an aggregate amount not to exceed the Supplemental Credit
Facility Sub-Limit):
(a) The European Subsidiaries shall have pledged 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
place no later than August 31, 2002, and 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.
(b) 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 Generale in a principal
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 August 31, 2002;
(c) The European Subsidiaries shall have provided an opinion of
their counsel as to the validity and enforceability of the
security interests and liens contemplated by Subsections
2.1.3(a) and (b) hereof, as well as the validity and
enforceability of 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.
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(d) For each Advance Payment Guaranty, the European Subsidiaries,
the Borrower and the U.S. Guarantors shall have executed and
delivered (or 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.
(e) 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
(f) The requirements of Article IV of the Second Waiver Agreement
shall have been satisfied.
2.3 AMENDMENT TO SUBSECTION 1.10(a) OF THE SECOND WAIVER AGREEMENT.
Subsection 1.10(a) of the Second Waiver Agreement is hereby amended by deleting
Subsection 1.10(a) of the Second Waiver Agreement and replacing such Subsection
1.10(a) in its entirety with the following:
(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 Generale in an amount not to
exceed Seven Hundred and Thirty-One
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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 August 31, 2002;
2.4 AMENDMENT TO SUBSECTION 1.10(b) OF THE SECOND WAIVER AGREEMENT.
Subsection 1.10(b) of the Second Waiver Agreement is hereby amended by deleting
Subsection 1.10(b) of the Second Waiver Agreement and replacing such Subsection
1.10(b) in its entirety with the following:
(b) The Borrower and the European Subsidiaries shall execute the
documentation required to effectuate the pledge of the European
Subsidiaries' 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 pledge shall be made no later than August 31, 2002;
2.5 AMENDMENT TO SECTION 2.10 OF THE SECOND WAIVER AGREEMENT. Section
2.10 of the Second Waiver Agreement is hereby amended by deleting Subsection
6.16 of the Credit Agreement, and replacing such Subsection 6.16 in its
entirety, with the following:
6.16 Consolidated Total Liabilities and Contingent Liabilities to
Consolidated Tangible Capital Funds. Maintain, as of the last day of
each fiscal quarter, a ratio of (a) Consolidated Total Liabilities of
the Borrower and its Consolidated Subsidiaries, excluding liabilities
of Discontinued Operations, plus the Contingent Liabilities of Selas
SAS which are guaranteed by the Borrower, to (b) Consolidated Tangible
Capital Funds of the Borrower and its Consolidated Subsidiaries, of not
more than 2.50 to 1.0.
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:
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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; 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
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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
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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.
WACHOVIA BANK, NATIONAL ASSOCIATION
BY:________________________________________
NAME:
TITLE:
SELAS CORPORATION OF AMERICA
BY:________________________________________
NAME:
TITLE:
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SELAS SAS
BY:________________________________________
NAME:
TITLE:
CFR-CECF FOFUMI RIPOCHE
BY:________________________________________
NAME:
TITLE:
DEUER MANUFACTURING, INC.
BY:________________________________________
NAME:
TITLE:
RESISTANCE TECHNOLOGY, INC.,
BY:________________________________________
NAME:
TITLE:
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RTI EXPORT, INC.
BY:________________________________________
NAME:
TITLE:
RTI ELECTRONICS, INC.
BY:________________________________________
NAME:
TITLE:
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