EXHIBIT 4.11
THIRD AMENDMENT TO
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THIRD WAIVER AND AMENDMENT AGREEMENT
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This Third Amendment to Third Waiver and Amendment Agreement (the
"Amendment") dated as of August 14, 2003 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 c/o 0000 Xxx Xxx Xxxx, Xxxxx Xxxxx,
Xxxxxxxxx 00000 (the "Borrower"), 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 Xxx Xxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx 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
RTI and RTIE, the "U.S. Guarantors").
BACKGROUND
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A. The Bank, the Borrower, the U.S. Guarantors and Deuer Manufacturing,
Inc., an Ohio business corporation with offices located at 0000 Xxxxxxxxxx Xxxx,
Xxxxxx, Xxxx 00000 ("Deuer") 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 U.S. 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 outstanding Term Loans are evidenced, INTER ALIA, 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
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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, INTER ALIA, 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) executed by the Borrower in favor of 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, through the Bank's London Branch ("London Branch"), and
Selas SAS (formerly named Selas S.A.), a corporation organized under the laws of
France and a subsidiary of the Borrower ("Selas SAS"), 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, 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 "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 Bank, through its 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), and amended
by that certain First Amendment to Selas SAS 1998 Term Loan Agreement dated as
of January 16, 2003 (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),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 "Selas SAS 2000 Term Loan Agreement"). The Selas SAS
1998 Term Loan Agreement and the APG Facility have been paid and/or expired as
of the date of this Amendment.
E. The Borrower and the U.S. 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 (collectively, the "Selas SAS Surety
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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, INTER ALIA: (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 the
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"). The Bank has released
its security interest in and liens upon the Deuer collateral, as well as Deuer
from its obligations under the Deuer Surety Agreement and Deuer Guaranty, as a
result of the sale of Deuer in August 2003.
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,
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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, 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 U.S. 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 under which the Bank's London Branch would issue certain advance
payment guarantees. In consideration of the Bank's London Branch's agreement to
issue certain advance payment guarantees on their behalf, each European
Subsidiary executed a General Counter Indemnity in favor of the Bank
(collectively, the "General Counter Indemnities").
L. The Borrower, the U.S. 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, 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
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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 Bank agreed, among other things, 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 U.S. 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 U.S. Guarantors (the "CFR Guaranty").
M. The Borrower, the U.S. Guarantors and the European Subsidiaries
entered into that certain Third Waiver and Amendment Agreement dated as of March
14, 2003, as amended by that certain First Amendment to Third Waiver and
Amendment Agreement dated as of March 31, 2003, and that certain Second
Amendment to Third Waiver and Amendment Agreement dated as of May 15, 2003 (as
amended, the "Third Waiver Agreement"), pursuant to which the Bank agreed, among
other things, to extend the maturity of certain existing credit facilities and
provide a contingent credit facility for the issuance of advance payment
guarantees on behalf of the European Subsidiaries.
N. The First Waiver Agreement, the Second Waiver Agreement, the Third
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 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".
O. 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 Consolidated Tangible Capital Funds for the Borrower and
its Consolidated Subsidiaries not meeting the minimum level of Ten Million
Dollars ($10,000,000), plus one hundred percent (100%) of cumulative net
earnings for the quarter ended June 30, 2003; (ii) the ratio of Consolidated
Total Liabilities of the Borrower and its Consolidated Subsidiaries plus the
Contingent Liabilities of Selas SAS to Consolidated Tangible Capital Funds of
the Borrower and its Consolidated Subsidiaries exceeding the maximum ratio of
4.50 for the quarter ended as of June 30, 2003, (iii) the Consolidated Fixed
Charge Coverage Ratio not meeting the minimum coverage ratio of 1.25 to 1 for
the quarter ended as of June 30, 2003, (iv) the Consolidated Current Ratio not
meeting the minimum coverage ratio of 1.10 to 1 for the quarter ended as of June
30, 2003 (collectively, the "Financial Covenant Defaults"). Further, in the
absence of the waiver provided herein, Event of Defaults would occur under
Section 9.1 of the Credit Agreement as a result of: (i) a judgment being entered
against Selas SAS in an amount exceeding
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One Million Dollars ($1,000,000), and (ii) the insolvency proceeding commenced
by Selas SAS in France (the "Foreign Defaults"). The Financial Covenant Defaults
and the Foreign Defaults are collectively referred to herein as the "Financial
Defaults." P. The Bank, the Borrower and the U.S. Guarantors, pursuant to the
terms hereof, wish to amend the Third Waiver Agreement to: (i) waive the
Financial Defaults, and (ii) extinguish any availability under the CFR Facility,
in both cases subject to the terms and conditions contained herein. Due to the
commencement of insolvency proceedings by Selas SAS in France, Selas SAS is not
able to be a party to or executed this Amendment, the Bank, the Borrower and the
U.S. Guarantors wish to agree to amend the Third Waiver Agreement
notwithstanding the absence of Selas SAS as a party or signatory hereto.
NOW, THEREFORE, incorporating the Background by reference herein and
for other good and valuable consideration, the Bank, the Borrower and the U.S.
Guarantors 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 FINANCIAL DEFAULTS
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2.1 WAIVER OF FINANCIAL DEFAULTS. Subject to the provisions hereof, the
Bank hereby waives the Financial Defaults. Notwithstanding the foregoing, the
Bank's waiver of the Financial Defaults, or any communication between the Bank,
the Borrower and the U.S. Guarantors, 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 Financial Defaults or other
default waived by the Bank in writing; (ii) the ongoing obligation of the
Borrower, the U.S. Guarantors and Selas SAS 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 U.S. Guarantors, or Selas SAS under
the Loan Documents and/or applicable law, with respect to any default or Event
of Default, other than rights and remedies which directly result from the
occurrence and existence of the Financial Defaults. The Bank hereby reserves and
preserves all of its rights and remedies against the Borrower, the U.S.
Guarantors, and Selas SAS 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 Financial Defaults or other default waived
by the Bank in writing.
ARTICLE III - AMENDMENTS
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3.1 AMENDMENT TO SECTION 2.1.11 OF THE CREDIT AGREEMENT. Section 2.1.11
of the Credit Agreement is hereby amended by deleting subsection 2.1.11 of the
Credit Agreement and replacing such subsection 2.1.11 in its entirety, with the
following:
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2.1.11 CFR Facility. The Bank shall have no obligation to make
any further extension of credit under the CFR Facility.
3.2 AMENDMENT TO SECTION 2.1 OF THE CREDIT AGREEMENT. Section 2.1 of
the Credit Agreement is hereby amended by deleting subsection 2.1.12 of the
Credit Agreement in its entirety.
ARTICLE IV - REAFFIRMATION
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The Borrower and each U.S. Guarantors hereby: (i) acknowledge and
consent to the terms and conditions set forth in this Amendment, (ii)
acknowledge, 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 Releases contained therein, all of
which shall be effective as of the date hereof, (iii) acknowledge the continued
existence, validity and enforceability of the Loan Documents, (iv) agree that
the terms, conditions, representations and covenants contained in the Loan
Documents are binding upon each of them, and (v) agree that the Bank holds duly
perfected security interests in and liens on the Collateral to secure the
Borrower's Obligations. The Borrower and each U.S. Guarantor hereby acknowledge
and agree that the Borrower Surety Agreements, the Selas SAS Surety Agreements
and any other suretyship agreements executed by them in favor of the Bank or its
affiliates, are ratified, reaffirmed and confirmed in all respects, shall
continue in full force and effect, and are valid, binding and enforceable
against the parties thereto as if executed as of the date hereof.
ARTICLE V - REPRESENTATIONS AND WARRANTIES
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To induce the Bank to enter into this Amendment, the Borrower and the
U.S. Guarantors 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 and the U.S. Guarantors 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 and the U.S. Guarantors; 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 and the U.S. Guarantors or a default
under any agreement, judgment, injunction, order, decree or other instrument
binding upon or affecting the Borrower, the U.S. Guarantors and Selas SAS, (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 U.S. Guarantors or Selas SAS to any other
creditor.
5.2 DUE AUTHORIZATION. Each person executing this Amendment on behalf
of the Borrower and the U.S. Guarantors is duly authorized by such respective
entity to execute same.
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5.3 ENFORCEABILITY. This Amendment will be, the legal, valid and
binding obligation of the Borrower and the U.S. Guarantors, 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
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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 and U.S. Guarantors'
execution and delivery to the Bank of this Amendment;
6.2 FEES AND COSTS.
6.2.1 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; and
6.2.2 The Borrower's payment to the Bank of a non-refundable fee in
the amount of Twenty Thousand Dollars ($20,000) as consideration for entering
into the Amendment.
6.2.3 The Borrower and the U.S. Guarantors hereby acknowledge and
agree that the fees payable hereunder are fully earned on the date hereof, are
non-refundable and constitute a part of the Obligations, and are in addition to
any other fees payable by the Borrower and the U.S. Guarantors under the Loan
Documents.
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.
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7.2 NO WAIVER. Except as expressly provided in this Amendment, the
First Waiver Agreement, the Second Waiver Agreement, or the Third 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.
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.
7.6 SPECIAL ACKNOWLEDGEMENT OF VALIDITY AND BINDING AND ENFORCEABLE
EFFECT. Notwithstanding anything contained in any Loan Documents requiring all
parties to the Loan Documents to sign to execute an Amendment thereto, all
parties to this Third Amendment to the Third Waiver and Amendment Agreement
acknowledge and agree that the terms and provisions of this agreement are valid,
binding, and enforceable against them.
[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:
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NAME:
TITLE:
SELAS CORPORATION OF AMERICA
BY:
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NAME:
TITLE:
RESISTANCE TECHNOLOGY, INC.,
BY:
-----------------------------------
NAME:
TITLE:
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RTI EXPORT, INC.
BY:
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NAME:
TITLE:
RTI ELECTRONICS, INC.
BY:
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NAME:
TITLE:
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