EXHIBIT 4G
WAIVER AND AMENDMENT AGREEMENT
This Waiver and Amendment Agreement (the Waiver
Agreement) dated as of November 20, 2001 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 2034 Limekiln Pike, Dresher, Pennsylvania 19025 (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 2985 Springboro West,
Dayton, Ohio 45439 (Deuer), Resistance Technology, Inc., a
Minnesota business corporation with offices located at 1260 Red
Fox Road, Arden Hills, Minnesota 55112 (RTI), RTI Export,
Inc., a Barbados corporation with offices located at c/o 2034
Limekiln Pike, Dresher, Pennsylvania 19025 (RTIE), and RTI
Electronics, Inc., a Delaware corporation with offices located
at 1800 Via Burton Street, Anaheim, California 92806 (RTI
Electronics; and together with Deuer, RTI and RTIE, the
Guarantors).
BACKGROUND
A. The Borrower, the Bank 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). 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).
B. 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 C
dated as of February 21, 1997 in the original principal amount
of Three Million Five Hundred Thousand Dollars ($3,500,000)
(Term Note C), (ii) Term Note D dated as of June 30, 1999 in
the original principal amount of Nine Hundred Thousand Dollars
($900,000) (Term Note D), (iii) 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 (iv) Term Note F dated
as of January 19, 2001 in the original principal amount of One
Million Seven Hundred Thousand Singapore Dollars (Singapore
$1,700,000) (Term Note F; and together with Term Note C, 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.
C. 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 Banks 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). 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).
D. 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, Montgomery 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).
E. 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, Montgomery 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).
F. 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 Ramsey 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).
G. 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).
H. 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).
I. 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 Existing Loan Documents. All capitalized
terms not otherwise defined shall have the meanings ascribed to
them in the Existing Loan Documents, as amended hereby.
J. 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 the Borrowers
failure to maintain the minimum Consolidated Tangible Capital
Funds amount and the Fixed Charge Coverage Ratio as of December
31, 2001 as required under the Credit Agreement, respectively
(the "Financial Covenant Defaults").
K. The Borrower has advised Bank that it is developing a
plan for improving its European operations and it intends to
sell its subsidiary, Selas SAS.
L. The Borrower, the Guarantors, and the European
Subsidiaries have requested that the Bank (i) waive the
Financial Covenant Defaults and (ii) provide a new credit
facility pursuant to which the London Branch will issue certain
advance payment guarantees; and the Bank is willing to do so on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained and incorporating the Background by
reference herein, the Bank, the Borrower, the Guarantors, and
the European Subsidiaries intending to be legally bound hereby,
agree as follows:
ARTICLE I - ACKNOWLEDGMENTS
1.1 Acknowledgment of Joint and Several Liability,
Maturity Dates and Amounts of Notes.
1.1.1The Borrower and the Guarantors acknowledge and
agree that: (i) they are jointly and severally indebted and
liable to the Bank in respect of the outstanding principal
amount of the Notes, together with accrued and unpaid interest
thereon, and all other Obligations; (ii) the Notes mature and
are due and payable in full on the respective maturity dates set
forth below next to each such Note; and (iii) the outstanding
principal amount of each Note as of November 13, 2001, is set
forth below next to each such Note:
Promissory Notes Maturity Date Outstanding
Principal Amount
Term Note C 02/01/2002 $ 175,000.19
(US Dollars)
Term Note D 07/01/2004 $ 690,000.00
(US Dollars)
Term Note E 02/01/2006 $ 1,700,000.03 (US
Dollars)
Term Note F 02/01/2006 S$ 1,202,789.00
(Singapore Dollars)
Revolving Credit Note 01/31/2002 $ 2,540,137.09 (US
Dollars)
1.1.2Selas SAS, the Borrower and the Guarantors
acknowledge and agree that: (i) they are jointly and severally
indebted and liable to the Bank in respect of the Selas SAS Term
Loan Agreements, the Overdraft Facility and all other amounts
outstanding under the Selas SAS Facility Agreement, together
with accrued and unpaid interest thereon, and all other
Guaranteed Obligations (as such term is defined in the Selas SAS
Surety Agreements); (ii) the Selas SAS Term Loan Agreements
mature and are due and payable in full, together with all
interest accrued thereon, on the respective maturity dates set
forth below; (iii) the Overdraft Facility and all other amounts
outstanding under the Selas SAS Facility Agreement are on an on
demand basis and the Bank may make demand therefor at any time
and for any reason in its sole and absolute discretion; and (iv)
as of November 13, 2001, the outstanding principal amounts owing
to the Bank in respect of the Selas SAS Term Loan Agreements and
the Overdraft Facility are set forth below next to each such
agreement or facility:
Maturity Outstanding
Obligation Date/Demand Principal Amount
Selas SAS 1998 Term Loan Agreement 02/27/2003 FF
4,500,000.00 (French Francs)
Selas SAS 2000 Term Loan Agreement 01/12/2005 E
1,139,552.93 (Euros)
Overdraft Facility On demand E 5,976,854.11
(Euros)
1.1.3 The outstanding principal amounts of the
Term Notes, the Revolving Credit Note, the Selas SAS Term Loan
Agreements, the APG Facility, the Overdraft Facility, plus
accrued and unpaid interest thereon, all other sums payable by
the Borrowers, the Guarantors and the European Subsidiaries to
the Bank, whether under the Existing Loan Documents or
otherwise, together with any other Guaranteed Obligations (as
such term is used in each of the Selas SAS Surety Agreements and
the European Subsidiaries Surety Agreements) and any other
Obligations (as such term is used in the Existing Loan
Documents, as amended hereby) are collectively referred to
herein as the Obligations.
1.2 Acknowledgment of Loan Documents; Financial Covenant
Defaults; Loan Documents; Waiver of Defenses. The Borrower,
the Guarantors and the European Subsidiaries hereby acknowledge
and agree that: (i) the Loan Documents to which each is a party
are valid, binding and enforceable against them, in every
respect, and all of the terms and conditions thereof are binding
upon them; (ii) the Financial Covenant Defaults are material in
nature; (iii) the Selas SAS Facility is a discretionary facility
that expired on April 30, 2001; the Bank had no duty to issue
any advance payment guarantees thereunder at any time, except in
its sole discretion; and following such expiration date, Selas
SAS had no right to request the issuance of advance payment
guarantees under the Selas SAS Facility; (iv) the Bank may
demand any and all amounts outstanding under the Selas SAS
Facility at any time and for any reason in its sole and absolute
discretion; (v) as a result of the Financial Covenant Defaults,
in the absence of the waiver provided herein, the Bank would be
entitled immediately, and without further notice or declaration
to the Borrower, the Guarantors, or the European Subsidiaries
not to make any further advances or issue any Advance Payment
Guaranty (as hereinafter defined), to accelerate the
Obligations, and to exercise its rights and remedies under the
Loan Documents and applicable law; (vi) to the extent that any
of the Loan Documents require notification by the Bank to the
Borrower, the Guarantors, or the European Subsidiaries of the
existence of a default or provide an opportunity to cure such
default, such notice and period for cure are hereby waived with
respect to the Financial Covenant Defaults by the Borrower, the
Guarantors, and/or the European Subsidiaries; and (vii) to the
extent that the Borrower, any Guarantor, or any European
Subsidiary has any defenses, setoffs, claims, or counterclaims
to repayment of the Obligations or against the Bank, such
defenses, setoffs, claims, and counterclaims are hereby waived.
1.3 Acknowledgment of Liens and Priority. The Borrower,
the Guarantors, and the European Subsidiaries acknowledge and
agree that pursuant to the Loan Documents, the Bank holds first
priority, perfected security interests in and liens upon all of
the Borrower's and Guarantors assets, wherever located, now
owned or hereafter acquired, and as more specifically described
in the Loan Documents, and a first priority mortgage lien upon
and security interest in: (i) the Pennsylvania Property, (ii)
the Ohio Property, and (iii) the Minnesota Property
(collectively "Bank's Mortgages, Liens and Security Interests").
1.4 Reaffirmation of Mortgages, Security Documents and
Security Interests. All of the Borrower's and the Guarantors
respective assets pledged, assigned, conveyed, mortgaged,
hypothecated or transferred to the Bank pursuant to the Loan
Documents including, without limitation, accounts, accounts
receivable, inventory, equipment, general intangibles,
contracts, contract rights, instruments, letters of credit,
deposits, deposit accounts, documents of title, and all other
personal property, together with the Pennsylvania Property, the
Minnesota Property and the Ohio Property (collectively, the
"Collateral") constitute security for all of the Obligations
(including, without limitation, such Obligations arising under
or in respect of the Borrower Surety Agreements, the Selas SAS
Surety Agreements, the European Subsidiaries Surety Agreements,
the Advance Payment Guarantees, the Waiver Documents and the
other Loan Documents). The Borrower and the Guarantors hereby
grant to the Bank and reaffirm their prior grant and conveyance
to the Bank of a continuing first priority security interest in,
lien on and charge against all of the Collateral. The Borrower
and each Guarantor hereby acknowledge and agree that 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, and
any other security agreements 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. The
Borrower, the Guarantors, and the European Subsidiaries agree to
execute and deliver to the Bank such additional documentation
deemed necessary or appropriate by the Bank, in its sole and
absolute discretion, to achieve the purpose of this section of
this Waiver Agreement.
1.5 Reaffirmation of Representations and Warranties. The
Borrower, the Guarantors, and the European Subsidiaries hereby
reaffirm their respective representations and warranties in the
Loan Documents, which representations and warranties are true
and correct as of the date hereof, and each and all of which
shall survive the execution and delivery of this Waiver
Agreement.
1.6 Reaffirmation of Guaranties. In consideration of the
undertakings of the Bank pursuant to this Waiver Agreement and
the other Loan Documents, the Borrower and each Guarantor hereby
reaffirm the Borrower Surety Agreements, the Selas SAS Surety
Agreements, the other Loan Documents and all of their respective
obligations thereunder. The Borrower and each Guarantor hereby
consent to the execution and delivery by the Borrower, the
Guarantors, and the European Subsidiaries of this Waiver
Agreement, the other Waiver Documents and the other Loan
Documents and all other documents and instruments to be executed
pursuant hereto or in connection herewith. The Borrower and
each Guarantor hereby waives any right it may have to contest
the validity or enforceability of the Borrower Surety
Agreements, Selas SAS Surety Agreements or any other Loan
Document, for any reason whatsoever. The Guarantors hereby
acknowledge and agree that the term Obligations, as defined in
their respective Borrower Surety Agreements includes, without
limitation, all of the obligations, now or hereafter arising, of
Borrower to the Bank, whether under the Credit Agreement, the
other Loan Documents, as amended, or otherwise. The Borrower
and each Guarantor hereby acknowledge and agree that the term
Guaranteed Obligations, as defined in their respective Selas
SAS Surety Agreements includes, without limitation, all of the
obligations, now or hereafter arising, of Selas SAS to the Bank,
whether under the Selas SAS Term Loan Agreements, the Selas SAS
Facility Agreement, any document or agreement executed in
connection with the Advance Payment Guarantees that may now or
hereafter be issued by the Bank on behalf of Selas SAS, or
otherwise. The Borrower and each Guarantor hereby acknowledge
and agree that the Borrower Surety Agreements and 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. The
Borrower, the Guarantors, and the European Subsidiaries agree to
execute and deliver to the Bank such additional documentation
deemed necessary or appropriate by the Bank, in its sole and
absolute discretion, to achieve the purpose of this section of
this Waiver Agreement.
1.7 Bank Has No Obligation to Extend Waiver. The
Borrower, the Guarantors, and the European Subsidiaries hereby
acknowledge and agree that the Bank shall have no actual or
implied duty or obligation to extend the waiver granted to
Borrower herein beyond the waiver of the Financial Covenant
Defaults as of December 31, 2001, and the determination as to
any other or further waivers shall only be made by the Bank, in
the Bank's sole and absolute discretion.
1.8 Bank Has No Obligation to Issue Further Advance
Payment Guarantees. The Borrower, the Guarantors, the European
Subsidiaries hereby acknowledge and agree that except as
provided herein, Bank shall have no duty to issue any advance
payment guarantees to or for the benefit of Borrower, the
Guarantors, and/or the European Subsidiaries, or provide
overdraft financing for Borrower, Guarantors, and/or the
European Subsidiaries.
ARTICLE II - WAIVER OF FINANCIAL COVENANT DEFAULTS
2.1 Waiver of Financial Covenant Defaults. Subject to
the provisions hereof, the Bank hereby waives the Financial
Covenant Defaults. Notwithstanding the foregoing, the Banks
waiver of the Financial Covenant Defaults, or any communication
between the Bank, the Borrower, the Guarantors, the European
Subsidiaries, or each of their respective officers, agents,
employees or representatives, shall not be deemed to constitute
a waiver of (i) any default or Event of Default, whether now
existing or hereafter arising, under the Loan Documents, other
than the Financial Covenant Defaults; (ii) the ongoing
obligation of the Borrower, the Guarantors and the European
Subsidiaries to comply with the Credit Agreement and the other
Loan Documents as amended hereby; or (iii) any rights or
remedies which the Bank has against the Borrower, the
Guarantors, or the European Subsidiaries under the Loan
Documents and/or applicable law, with respect to Events of
Default, other than rights and remedies which directly result
from the occurrence and existence of the Financial Covenant
Defaults. The Bank hereby reserves and preserves all of its
rights and remedies against the Borrower, the Guarantors, and
the European Subsidiaries under the Loan Documents and
applicable law, other than the right to declare an Event of
Default or exercise remedies based upon the occurrence and
existence of the Financial Covenant Defaults.
ARTICLE III - AMENDMENTS TO LOAN DOCUMENTS
3.1 Amendment of the Definition of Loan Documents. The
following definitions in the Credit Agreement is hereby amended
and restated, as follows:
Revolving Credit Termination Date is hereby amended to
mean the earlier of (i) February 28, 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.
3.2 New Definition. The following new defined terms are
hereby added to Section 1.1 of the Credit Agreement (and if such
terms are defined elsewhere in the Credit Agreement, such
defined terms are deemed to be amended and restated and replaced
with the definitions set forth below):
European Subsidiaries shall have the meaning given to
such term in the Waiver Agreement.
Loan Documents means the Existing Loan Documents (as such
term is used in the Waiver Agreement), the Waiver
Agreement, the Waiver Documents, and all documents and
agreements executed in connection therewith or pursuant
thereto, as the same may be amended from time to time.
Obligations means and all indebtedness, obligations and
liabilities, of any kind, of the Borrower, the Guarantors,
the European Subsidiaries (or any of them) to the Bank
and/or its affiliates including, but not limited to, all
obligations under the Loan Documents, and any other notes,
loan agreements, security agreements, letters of credit,
swap agreements (as defined in Title 11 of the United
States Code), instruments, accounts receivable, contracts,
drafts, leases, chattel paper, indemnities, acceptances,
reimbursement agreements, repurchase agreements,
overdrafts, however and whenever incurred or evidenced,
whether primary, secondary, direct, indirect, absolute,
contingent, due or to become due, now existing or hereafter
arising, and all amendments, modifications or renewals
thereof, including without limitation all principal,
interest, fees, charges, advances, and costs and expenses
incurred thereunder (including, without limitation,
attorneys fees and other costs of collection, regardless of
whether suit is commenced).
Waiver Agreement shall mean that certain Waiver and
Amendment Agreement dated as of November 20, 2001, by and
among, the Bank, the Borrower, the Guarantors, and the
European Subsidiaries, as amended from time to time.
Waiver Documents shall mean the Waiver Agreement and all
of the documents, agreements and instruments executed
and/or delivered to the Bank pursuant to the Waiver
Agreement (including the documents described in Articles IV
and V thereof).
3.3 New Paragraph (h) to Section 9.1. Paragraph (h) is
hereby added to Section 9.1 of the Credit Agreement as follows:
(h) If there shall exist an Event of Default under the
Waiver Agreement any Waiver Document or any other document
or agreement executed in connection therewith or pursuant
thereto.
ARTICLE IV - ADDITIONAL TERMS AND CONDITIONS
4.1 Advance Payment Guarantees. The Bank agrees to
provide a new credit facility to or for the benefit of the
Borrower, the Guarantors, and the European Subsidiaries,
pursuant to which the London Branch will issue the following
advance payment guarantees (collectively, the Advance Payment
Guarantees), for the account of the specified European
Subsidiary, in the amounts and on or after the dates set forth
below, upon the Borrowers request therefor and subject to the
prior satisfaction of the applicable terms, conditions and
covenants therefor, described in Section 4.2 below:
(a) on or after November 21, 2001, an Advance
Payment Guaranty in the amount of E2,199,000 (Euros) to Voest
Alpine Stahl GmbH (Voest) on behalf of Selas SAS;
(b) on or after January 15, 2002, an Advance
Payment Guaranty in the amount of E1,097,550 (Euros) to Duferco
on behalf of Selas SAS;
(c) on or after November 28, 2001, an Advance
Payment Guaranty in the amount of Norwegian Kroners 1,305,000 to
Soral on behalf of CFR;
(d) on or after November 28, 2001, an Advance
Payment Guaranty in the amount of E187,500 (Euros) to Protex on
behalf of CFR;
(e) on or after November 28, 2001, an Advance
Payment Guaranty in the amount of E48,600 (Euros) to LOI
Thermoprocess on behalf of CFR;
(f) on or after December 15, 2001, an Advance
Payment Guaranty in the amount of FF 280,000 (French Francs) to
Swiss Metal on behalf of CFR;
(g) on or after November 28, 2001, an Advance
Payment Guaranty in the amount of E25,192.20 (Euros) to Valourec
on behalf of CFR;
(h) on or after November 28, 2001, an Advance
Payment Guaranty in the amount of E25,500 (Euros) to Suleasing
on behalf of CFR; and
(i) on or after December 15, 2001, an Advance
Payment Guaranty in the amount of FF125,000 (French Francs) to
NGK on behalf of CFR.
4.2 Specific Conditions Precedent and Covenants For
Advance Payment Guarantees.
4.2.1The Banks obligation to issue any Advance
Payment Guaranty described in Section 4.1 above is subject to
the prior satisfaction of all of the following conditions
precedent which the Borrower, the Guarantors, and the European
Subsidiaries acknowledge are material:
(a) For each Advance Payment Guaranty, the
European Subsidiaries, the Borrower and the 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, 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, in the Banks
sole and absolute condition;
(ii) a General Counter Indemnity, duly
executed by the particular European Subsidiary on whose behalf
such Advance Payment Guaranty will be issued; and
(iii)such other documents as the Bank, in
its sole discretion, may require.
(b) There shall not be a default, a Default or
an Event of Default under the Selas Term Loan Agreements, the
Selas SAS Facility, the Credit Agreement, the documents executed
or delivered in connection with any Advance Payment Guaranty or
any other Loan Document (other than the Financial Covenant
Defaults);
(c) The requirements of Article V of this Waiver
Agreement shall have been satisfied;
(d) The Borrower and the Guarantors shall have:
(i) provided all of the information and documentation, as
requested by Bank, for appraisals of the Collateral, including,
but not limited to, appraisals of all real estate, machinery and
equipment located in Pennsylvania, Ohio, and Minnesota and all
machinery and equipment located in California; and (ii) agreed
to permit unrestricted access for the Bank or its
representatives to perform such appraisals; and pay the costs
and expenses incurred by Bank for such appraisals;
(e) The Borrower, the Guarantors, and the
European Subsidiaries shall have provided the Bank with their
business plan for their European operations, including a
description of any management changes in furtherance of such
plan; and
(f) The Borrower shall have engaged in
discussions with Voest for the sale of Selas SAS in accordance
with the Borrowers proposal to Bank, and the Borrower shall
have provided the Bank with a written certification signed by
Borrowers management that it has engaged in such discussions.
4.2.2The Banks obligations to issue any Advance
Payment Guaranty described in Section 4.1(b) through 4.1(i)
above are subject to the satisfaction, prior to the issuance of
any such Advance Payment Guaranty, of: (i) all of the terms and
conditions set forth in Section 4.2.1, and (ii) each of the
following additional terms and conditions that is specified
below to be satisfied on or before such date of issuance:
(a) On or before December 15, 2001, the Borrower
shall provide to Bank a written indication of interest from
Voest in purchasing Selas SAS, or, in the alternative,
Borrowers written statement that other potential buyers have
been contacted about the potential sale of Selas SAS;
(b) On or before January 31, 2002, the Bank
shall have received completed title searches on the Pennsylvania
Property, the Ohio Property, and the Minnesota Property,
acceptable to the Bank in its sole and absolute discretion;
(c) On or before January 31, 2002, the Bank
shall have received completed appraisals of the Collateral,
acceptable to the Bank in its sole and absolute discretion;
(d) Upon the earlier of (i) February 28, 2002,
or (ii) receipt of payment by Selas SAS from Duferco, the
Borrowers, the Guarantors and Selas SAS shall repay amounts
outstanding as necessary to reduce the Overdraft Facility to an
amount that is not greater than E4,650,000 (Euros); provided,
however, that nothing herein shall be deemed to waive Banks
right in its sole discretion to demand payment in full of all
amounts outstanding under the Overdraft Facility or the APG
Facility at any time;
(e) On or before February 28, 2002, Borrower
shall provide Bank with a written certification that its 2001
fourth quarter pre-tax losses, if any, for the Borrower, the
Guarantors, the European Subsidiaries and their affiliates, on a
consolidated basis are not more than $200,000; and
(f) On or before February 28, 2002, Borrower
shall provide Bank with a copy of a written offer to purchase
Selas SAS, acceptable to the Bank.
4.2.3On or before December 7, 2001, the European
Subsidiaries shall deliver, or cause to be delivered, to the
Bank opinions of their respective counsel, reasonably
satisfactory to the Bank in all respects (Opinions). In
addition to the terms and conditions set forth in Sections 4.2.1
and 4.2.2, the Banks obligations to issue any Advance Payment
Guaranty described in Section 4.1(b) through 4.1(i) above are
also subject to the Banks receipt of the Opinions prior to the
issuance of any such Advance Payment Guaranty.
4.3 Conditions Precedent for Additional Advance Payment
Guaranty to Voest . The Bank, in its sole and absolute
discretion, and without making any commitment therefor, may
issue an additional Advance Payment Guaranty to Voest, on behalf
of Selas SAS, upon the satisfaction of: (i) all of the terms and
conditions set forth in Sections 4.1 and 4.2 of this Waiver
Agreement, and (ii) such other terms and conditions as the Bank
in its sole and absolute discretion may determine.
ARTICLE V- CONDITIONS PRECEDENT
The effectiveness of this Waiver Agreement and the Banks
obligations hereunder are conditioned upon the fulfillment by
the Borrower, the Guarantors and the European Subsidiaries of
all of the following express conditions precedent:
5.1 Documents to be Delivered to the Bank. The Borrower,
the Guarantors, and/or the European Subsidiaries shall deliver,
or cause to be delivered, to the Bank, in form and substance
reasonably satisfactory to the Bank, the documents described in
Section 4.2.1 hereof and the following documents:
(a) This Waiver Agreement, executed by the Borrower,
the Guarantors, and the European Subsidiaries;
(b) An Unconditional Guaranty and Suretyship
Agreements, duly executed by the Borrower and the Guarantors, as
guarantor and surety for all indebtedness, liabilities and
obligations of the European Subsidiaries to the Bank
(collectively, the European Subsidiaries Surety Agreements);
(c) Fifth Amendment to First Mortgage and Security
Agreement, duly executed by Borrower as Mortgagor (with respect
to the Pennsylvania Property);
(d) Fifth Amendment to First Mortgage and Security
Agreement, duly executed by Borrower as Mortgagor (with respect
to the Ohio Property);
(e) Second Amendment to Mortgage, Security Agreement
and Fixture Financing Statement, duly executed by RTI as
Mortgagor (with respect to the Minnesota Property);
(f) Warrant of Attorney to Confess Judgment, executed
by the Borrower and each Guarantor;
(g) A Certification of Authority executed by the
Secretary of each of the Borrower, the Guarantors, and the
European Subsidiaries, each dated as of the date hereof,
certifying the incumbency and signature of the officers of each
such entity executing this Waiver Agreement and all other
documents to be delivered by them pursuant hereto, together with
evidence of the incumbency of such Secretary; and Corporate
Resolutions for each of the Borrower, the Guarantors, and the
European Subsidiaries, certified by their respective
Secretaries, authorizing and approving this Waiver Agreement,
and the documents and payments specified herein;
(h) Opinions of counsel for each of the Borrower and
the Guarantors, satisfactory to the Bank in all respects; and
(i) Such other documents as may be required by the
Bank.
5.2 Payment of One-half of Facility Fee. The Borrower
shall have paid to the Bank the sum of Twelve Thousand Five
Hundred Dollars ($12,500) which is one-half of the total
facility fee of $25,000 (Facility Fee), and the remaining
one-half of the Facility Fee in the amount of $12,500 shall be
due and payable in full on January 4, 2002.
5.3 Payment of Bank's Costs, Expenses and Legal Fees. The
Borrower shall have paid to the Bank the amount of the Bank's
out-of-pocket costs and expenses, including, without limitation,
all reasonable fees and out-of-pocket expenses of counsel for
the Bank in connection with: (i) the Financial Covenant
Defaults, (ii) the negotiation and preparation of the Waiver
Documents, and (iii) the other Loan Documents.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Waiver Agreement
and as partial consideration for the terms and conditions
contained herein, the Borrower makes the following
representations and warranties to the Bank, each and all of
which shall survive the execution and delivery of this Waiver
Agreement and all of the other documents executed in connection
herewith:
6.1 Organization; Authorization; and Location.
(a) The Borrower, the Guarantors, and the European
Subsidiaries are duly incorporated, organized, validly existing
and in good standing under the laws of the jurisdictions
indicated in the first paragraph of this Waiver Agreement, and
each is duly authorized to do business, and is duly qualified as
a foreign corporation in all jurisdictions wherein the nature of
its business or property makes such qualification necessary, and
has the corporate power to own its property and to carry on its
business as now conducted;
(b) The Borrower, the Guarantors, and the European
Subsidiaries have the requisite corporate power and authority to
execute, deliver and perform this Waiver Agreement and all of
the documents executed by it in connection herewith.
6.2 Valid and Binding Agreement. This Waiver Agreement
is, and each of the documents executed pursuant hereto will be,
legal, valid, and binding obligations of the party or parties
thereto, enforceable against each such party in accordance with
their respective terms.
6.3 Compliance with Laws. The Borrower, each Guarantor,
and each European Subsidiary are in compliance in all material
respects with all laws, regulations and requirements applicable
to its business, including without limitations all applicable
Environmental Laws, and each has not received, and has no
knowledge of, any order or notice of any governmental
investigation or of any violations or claims of violation of any
law, regulation or any governmental requirement, except as
expressly disclosed herein.
6.4 No Conflict; Government Approvals. The execution,
delivery and performance by the Borrower, each Guarantor, and
the European Subsidiaries of this Waiver Agreement and the other
documents executed in connection herewith will not:
(a) conflict with, violate or result in the breach of
any provisions of any applicable law, rule, regulation or order;
or
(b) conflict with or result in the breach of any
provision of its Articles of Incorporation, charter, and/or
by-laws. No authorization, consent or approval of, or other
action by, and no notice of or filing with, any governmental
authority or regulatory body is required to be obtained or made
by the Borrower for the due execution, delivery and performance
of this Waiver Agreement.
6.5 Third Party Consents. The execution, delivery and
performance by the Borrower, each Guarantor, and each European
Subsidiary of this Waiver Agreement and the documents related
hereto will not:
(a) require any consent or approval of any person or
entity which has not been obtained prior to, and which is not in
full force and effect as of, the date of this Waiver Agreement;
(b) result in the breach of, default under, or cause
the acceleration of any obligation owed under any loan, credit
agreement, note, security agreement, lease indenture, mortgage,
loan document or other agreement by which the Borrower is bound
or affected; or
(c) result in, or require the creation or imposition
of, any lien or encumbrance on any of the Borrower's properties
other than those liens or security interests in favor of the
Bank or the liens or security interests disclosed to the Bank in
the Loan Documents.
6.6 Financial Statements; Reporting.
(a) Except as otherwise disclosed in writing to the
Bank prior to the date hereof, all balance sheets, reports,
budgets, reconciliations, accounts receivable reports, and other
financial information supplied to the Bank by the Borrower have
been prepared in conformity with GAAP, and present fairly the
financial condition and results of operations of the Borrower
for the period covered thereby.
(b) The Borrower, each Guarantor, and each European
Subsidiary do not know of any facts, other than those already
disclosed in writing to the Bank, that materially adversely
affect or in so far as can be foreseen, will materially
adversely affect their ability to perform their respective
obligations under this Waiver Agreement and the documents
executed in connection herewith.
6.7 Exclusive and First Priority Perfected Lien. The
Bank has, as of the date hereof, and shall continue to have,
until all of the Obligations are paid in full, first priority,
valid perfected liens upon and security interests in all of the
Collateral to secure the payment and performance of all of the
Obligations.
6.8 No Untrue or Misleading Statements. Neither this
Waiver Agreement nor any other document executed in connection
herewith contains any untrue statement of a material fact or
omits any material fact necessary in order to make the statement
made, in light of the circumstances under which it was made,
accurate.
6.9 No Events of Default. Other than the Financial
Covenant Defaults, no default or Event of Default has occurred
as of the date hereof under any of the Existing Loan Documents.
ARTICLE VII - EVENTS OF DEFAULT
The occurrence of any one or more of the following shall
constitute an "Event of Default" hereunder:
7.1 Borrower's Failure to Pay. The Borrower, any
Guarantor, or any European Subsidiary shall fail to pay any
amount of principal, interest, fees or other sums as and when
due under any of the Loan Documents, or any other Obligations,
whether upon stated maturity, acceleration, or otherwise.
7.2 Breach of Covenants or Conditions. Except for the
Financial Covenant Defaults, the Borrower, any Guarantor, or any
European Subsidiary shall fail to perform or observe any other
covenant, term, agreement or condition in this Waiver Agreement
(including, without limitation, the failure of the European
Subsidiaries to deliver, or cause to be delivered, the Opinions
to the Bank on or before December 7, 2001, as required by
Section 4.2.3 hereof), the other Waiver Documents or any of the
other Loan Documents or is in violation of or non-compliance
with any provision of this Waiver Agreement, the other Waiver
Documents or any of the other Loan Documents after the
expiration of any cure period, if any, set forth in any such
Loan Documents with respect to such covenant, term, agreement or
condition.
7.3 Defaults in Other Material Agreements. There shall
occur any default under, or as defined in, any other material
agreement applicable to the Borrower, any Guarantor, or any
European Subsidiary or by which the Borrower, any Guarantor, or
any European Subsidiary is bound which shall not be remedied
within the period of time (if any) within which such other
agreement permits such default to be remedied, unless such
default is waived by the other party thereto or excused as a
matter of law.
7.4 Agreements Invalid. The validity, binding nature of,
or enforceability of any material term or provision of any Loan
Document is disputed by, on behalf of, or in the right or name
of the Borrower, any Guarantor, or any the European Subsidiary
or any material term or provision of any such Loan Document is
found or declared to be invalid, avoidable, or non-enforceable
by any court of competent jurisdiction.
7.5 False Warranties; Breach of Representations. Except
as otherwise disclosed to the Bank in writing prior to the date
hereof, any warranty or representation made by the Borrower,
each Guarantor, and/or each European Subsidiary in this Waiver
Agreement or any other Loan Document or in any certificate or
other writing delivered under or pursuant to this Waiver
Agreement or any other Loan Document, or in connection with any
provision of this Waiver Agreement or related to the
transactions contemplated hereby shall prove to have been false
or incorrect or breached in any material respect.
7.6 Bankruptcy.
(a) The Borrower, any Guarantor, or any European
Subsidiary commences any bankruptcy, reorganization, debt
arrangement, receivership, or other case or proceeding under any
bankruptcy, insolvency or receivership law, or any dissolution
or liquidation proceeding.
(b) Any bankruptcy, reorganization, debt arrangement,
receivership, or other case or proceeding under any bankruptcy,
insolvency or receivership law, or any dissolution or
liquidation proceeding, is involuntarily commenced against or in
respect of the Borrower, any Guarantor, or any European
Subsidiary or an order for relief is entered in any such
proceeding and such case or proceeding is not fully and finally
dismissed within thirty (30) days.
(c) A trustee, receiver, or other custodian is
appointed for the Borrower, any Guarantor or any European
Subsidiary or a substantial part of any of its/their assets.
7.7 Failure to Pay Taxes. The Borrower, any Guarantor, or
any European Subsidiary shall fail to pay when due any tax,
assessment or other governmental charge as and when due to the
appropriate governmental entity.
7.8 Event of Default Under Other Loan Documents. An Event
of Default (as such term is defined in the Credit Agreement) or
a Default or an Event of Default (as each such term is defined
in the other Loan Documents) (other than the Financial Covenant
Defaults) shall occur under any of the Loan Documents.
ARTICLE VIII - REMEDIES
If an Event of Default (as defined in Article VII of this
Waiver Agreement) shall occur and be continuing, at any time,
without notice to the Borrower, any Guarantor, or any European
Subsidiary:
8.1 Loan Documents; Applicable Law. The Bank may, in its
sole discretion, enforce all of its remedies as set forth
hereunder, under any of the Loan Documents and/or under
applicable law against the Borrower, the Guarantors, and/or the
European Subsidiaries.
8.2 Additional Remedies. The Bank may declare all
Obligations to be immediately due and payable and shall have, in
addition to any other remedies, all of the remedies of a secured
party under the Uniform Commercial Code (the Code). Expenses
of retaking, holding, preparing for sale, selling or the like
shall include the Bank's reasonable attorney's fees and legal
expenses incurred or expended by the Bank to enforce any payment
due to it hereunder or under the Loan Documents, as against the
Borrower, the Guarantors, or the European Subsidiaries, or in
the prosecution or defense of any action, or concerning any
matter growing out of or in connection with the Loan Documents
and/or the Collateral.
8.3 Power of Attorney. The Borrower, each Guarantor, and
each European Subsidiary do hereby make, constitute and appoint
any officer or agent of the Bank as the true and lawful
attorney-in-fact of the Borrower, each Guarantor, and the
European Subsidiaries, with power to, at the Bank's option and
at the expense and liability of the Borrower, the Guarantors,
and the European Subsidiaries: (a) sign, for the Borrower, any
Guarantor, and/or the European Subsidiaries, financing,
continuation or amendment statements pursuant to the Code; (b)
endorse the name of the Borrower, any Guarantor, or any European
Subsidiary or any of the respective officers or agents thereof
upon any notes, checks, drafts, money orders, or other
instruments of payment with respect to the Collateral that may
come into the Bank's possession in full or partial payment of
any of the Obligations; and (c) after an Event of Default has
occurred, sue for, compromise, settle and release any and all
claims and disputes with respect to the Collateral; granting to
said attorney of the Borrower, the Guarantors, and/or the
European Subsidiaries full power to do any and all things
necessary to be done in and about the premises as fully and
effectually as the Borrower, any Guarantor, and/or the European
Subsidiaries might or could do. The Borrower, the Guarantors,
and the European Subsidiaries hereby ratify all that said
attorney shall lawfully do or cause to be done by virtue
hereof. This power of attorney is coupled with an interest, and
is irrevocable.
8.4 Payment of Expenses. At its option, the Bank may
discharge taxes, liens, security interests or such other
encumbrances as may attach to the Collateral, as determined by
the Bank to be necessary. The Borrower, the Guarantors, and the
European Subsidiaries will reimburse the Bank on demand for any
payment so made or any expense incurred by the Bank pursuant to
the foregoing authorization, and the Collateral also will secure
any advances or payments so made or expenses so incurred by the
Bank.
ARTICLE IX - GENERAL RELEASE
EFFECTIVE UPON THE BORROWER, THE GUARANTORS, AND THE
EUROPEAN SUBSIDIARIES, FOR AND ON BEHALF OF THEMSELVES AND ALL
PERSONS AND/OR ENTITIES CLAIMING BY, THROUGH AND/OR UNDER ANY OF
THEM, INCLUDING, BUT NOT LIMITED TO, ALL OF THEIR RESPECTIVE
PAST AND PRESENT PARTNERS, DIRECTORS, SHAREHOLDERS, OFFICERS,
EMPLOYEES, ATTORNEYS, ACCOUNTANTS, ADMINISTRATORS, AGENTS,
PARENT CORPORATIONS, SUBSIDIARIES, AFFILIATES, REPRESENTATIVES,
PREDECESSORS, SUCCESSORS AND ASSIGNS AND WHERE APPLICABLE THEIR
RESPECTIVE HEIRS, EXECUTORS AND TRUSTEES (COLLECTIVELY REFERRED
TO HEREIN, JOINTLY AND SEVERALLY, AS THE RELEASORS) HEREBY
JOINTLY AND SEVERALLY UNCONDITIONALLY REMISE, RELEASE, ACQUIT
AND FOREVER DISCHARGE THE BANK AND ALL OF ITS PAST AND PRESENT
DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, ATTORNEYS,
ACCOUNTANTS, ADMINISTRATORS, AGENTS, PARENT CORPORATIONS,
SUBSIDIARIES, AFFILIATES, REPRESENTATIVES, PREDECESSORS,
SUCCESSORS, ASSIGNS AND WHERE APPLICABLE THEIR RESPECTIVE HEIRS,
EXECUTORS AND TRUSTEES (COLLECTIVELY REFERRED TO HEREIN AS THE
RELEASEES), OF, FROM AND WITH RESPECT TO ANY AND ALL
GRIEVANCES, DISPUTES, MANNER OF ACTIONS, CAUSES OF ACTION,
SUITS, OBLIGATIONS, LIABILITIES, LOSSES, DEBTS, DAMAGES, DUES,
SUMS OF MONEY, ACCOUNTS, RECKONINGS, CONTROVERSIES, AGREEMENTS,
CLAIMS, DEMANDS, COUNTERCLAIMS AND CROSSCLAIMS, INCLUDING, BUT
NOT LIMITED TO ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR
RELATED TO THE LOAN DOCUMENTS AND/OR ALL TRANSACTIONS RELATED
THERETO, WHETHER KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
DIRECT, INDIRECT OR CONTINGENT, ARISING IN LAW OR EQUITY, WHICH
THE RELEASORS (OR ANY OF THEM) EVER HAD, NOW HAS, OR MAY EVER
HAVE AGAINST ANY ONE OR MORE OF THE RELEASEES, FROM THE
BEGINNING OF TIME TO THE DATE OF THIS WAIVER AGREEMENT.
ARTICLE X - MISCELLANEOUS
10.1 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.
10.2 Choice of Law and Venue; Submission to Jurisdiction;
Selection of Forum; Jury Trial Waiver.
10.2.1 This Waiver Agreement and the other Loan
Documents (unless expressly provided to the contrary in any
other Loan Document with respect to such other Loan Document),
the construction, interpretation, and enforcement hereof and
thereof, and the rights of the parties hereto and thereto with
respect to all matters arising hereunder or thereunder or
related hereto and thereto shall be determined under, governed
by, and construed in accordance with the laws of the
Commonwealth of Pennsylvania.
10.2.2 The Bank, the Borrower, the Guarantors, and
the European Subsidiaries agree that all actions or proceedings
arising in connection with this waiver agreement and the other
loan documents shall be tried and litigated only in the state or
federal courts located in the Commonwealth of Pennsylvania,
provided, however, that any suit, action or other proceeding
seeking enforcement against any Collateral or other property may
be brought, at Bank's option, in the courts of any jurisdiction
where Bank elects to bring such action or where such Collateral
or other property may be found. The Bank, the Borrower, the
Guarantors, and the European Subsidiaries waive, to the extent
permitted under applicable law, any right each may have to
assert the doctrine of forum non conveniens or to object to
venue to the extent any suit, action or other proceeding is
brought in accordance with this section.
10.2.3 The Bank, the Borrower, the Guarantors, and
the European Subsidiaries hereby waive personal service of
process and agree that a summons and complaint commencing an
action or proceeding in such court shall be proper and shall
confer personal jurisdiction if served by registered or
certified mail, return receipt requested, in accordance with the
notice provisions of this Waiver Agreement.
10.2.4 The Bank, the Borrower, the Guarantors, and
the European Subsidiaries hereby waive their respective rights
to a jury trial of any claim or cause of action based upon or
arising out of this Waiver Agreement or any other Loan Document
or any of the transactions contemplated herein or therein,
including all contract claims, tort claims, breach of duty
claims, and all other common law or statutory claims,
whatsoever. The Bank, the Borrower, each Guarantor, and each
European Subsidiary warrant and represent that they have
reviewed this waiver and, following consultation with legal
counsel of its or his choice, do hereby knowingly, voluntarily,
intentionally, and expressly waive their right to jury trial and
right to claim or recover, in any such suit, action or
proceeding, any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual
damages. In the event of litigation, a copy of this waiver
agreement may be filed as a written consent to a trial by the
court.
10.2.5 The Bank, the Borrower, the Guarantors, and
the European Subsidiaries hereby acknowledge and agree that this
Section is a specific and material aspect of this waiver
agreement and that neither the Bank, the Borrower, any
Guarantor, nor any European Subsidiary would enter into this
Waiver Agreement if the waivers set forth in this section were
not a part of thereof.
10.3 Cooperation; Other Documents. At all times following
the execution of this Waiver Agreement, the Borrower, each
Guarantor, and each European Subsidiary shall execute and
deliver to the Bank, or shall cause to be executed and delivered
to the Bank, and shall do or cause to be done all such other
acts and things as the Bank may reasonably deem to be necessary
or desirable to assure the Bank of the benefit of this Waiver
Agreement and the documents comprising or relating to this
Waiver Agreement.
10.4 Remedies Cumulative; No Waiver. The rights, powers
and remedies of the Bank in this Waiver Agreement and in the
other Loan Documents are cumulative and not exclusive of any
right, power or remedy provided in the Loan Documents, by law or
in equity and no failure or delay on the part of the Bank in the
exercise of any right, power or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise of any right,
power or remedy preclude any other or further exercise thereof,
or the exercise of any other right, power or remedy.
10.5 Notices. Any notice given pursuant to this Waiver
Agreement or pursuant to any document comprising or relating to
this Waiver Agreement or any of the other Loan Documents shall
be in writing, including telecopies. Notice given by telecopy
shall be deemed to have been given and received when sent.
Notice given by overnight mail courier shall be deemed to have
been given and received one (1) day after the date delivered to
such overnight courier by the party sending such Notice. Notice
by mail shall be deemed to have been given and received three
(3) days after the date deposited, when sent by first class
certified mail, postage prepaid, and addressed as follows:
To the Borrower, the Guarantors, and/or the European
Subsidiaries:
Mr. Frank A. Toczylowski
Vice President and Treasurer
Selas Corporation of America
2034 Limekiln Pike
Dresher, PA 19025
With a copy to:
Drinker Biddle & Reath LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103
Attention: Michael B. Jordan, Esquire
Telecopy Number: 215-988-2757
To the Bank:
First Union National Bank
2240 Butler Pike
Plymouth Meeting, PA 19462
Attention: Robert Cordell, Senior Vice President
Telecopy Number: 610-941-3129
With a copy to:
Duane, Morris & Heckscher, LLP
One Liberty Place, 41st Floor
Philadelphia, PA 19103
Attention: Margery N. Reed, Esquire
Telecopy Number: 215-979-1020
A party may change his or its address by giving written notice
of the changed address to the other parties, as specified herein.
10.6 Indemnification. If, after receipt of any payment of
all or any part of the Obligations, the Bank is compelled to
surrender such payment to any person or entity for any reason
(including, without limitation, a determination that such
payment is void or voidable as a preference or fraudulent
conveyance, an impermissible setoff, or a diversion of trust
funds), then this Waiver Agreement and the other Loan Documents
shall continue in the full force and effect, and the Borrower,
each Guarantor, and each European Subsidiary shall be jointly
and severally liable for, and shall indemnify, defend and hold
harmless the Bank with respect to the full amount so
surrendered. The provisions of this Section shall survive the
termination of this Waiver Agreement and the other Loan
Documents and shall be and remain effective notwithstanding the
payment of the Obligations, the cancellation of any note, the
release of any lien, security interest or other encumbrance
securing the Obligations or any other action which the Bank may
have taken in reliance upon its receipt of such payment. Any
cancellation of any note, release of any such encumbrance or
other such action shall be deemed to have been conditioned upon
any payment of the Obligations having become final and
irrevocable.
10.7 Costs, Expenses and Attorneys' Fees. The Borrower,
the Guarantors, and the European Subsidiaries agree to pay on
demand by the Bank, all out-of-pocket fees, costs and expenses
incurred by the Bank, including, without limitation, all
appraisal fees and expenses and all fees and expenses of counsel
for the Bank in connection with: (i) the negotiation,
preparation and enforcement of this Waiver Agreement, the Waiver
Documents, the other Loan Documents and all other documents and
instruments executed in connection herewith or otherwise
relating to this Waiver Agreement; and (ii) the enforcement or
exercise by the Bank of its rights and remedies with respect to
the collection of the Obligations or to preserve, protect or
enforce its interests.
10.8 Bankruptcy/Relief from Automatic Stay. If any
bankruptcy, insolvency, reorganization or rehabilitation case or
proceeding is commenced by or against the Borrower, any
Guarantor, or any European Subsidiary under any state, federal
or foreign proceeding (including, without limitation, title 11
of the United States Code (the "Bankruptcy Code")), the
Borrower, each Guarantor, and each European Subsidiary hereby
agree that the Bank and/or its nominee(s) or assignee(s) are
entitled to, and the Borrower, each Guarantor, and each European
Subsidiary hereby waive any objections to, immediate relief from
any stay imposed by Section 362 or 105 of the Bankruptcy Code or
other applicable law or against the exercise of the rights and
remedies otherwise available to the Bank and/or its nominee(s)
or assignee(s) as provided in this Waiver Agreement, the other
Waiver Documents, the other Loan Documents and as otherwise
provided by law. Upon the occurrence of any of the events
described in this Section, the Borrower, each Guarantor, and
each European Subsidiary covenant to take any action deemed
necessary or convenient by the Bank and/or its nominee(s) and
assignee(s) to enable the Bank and/or its nominee(s) and
assignee(s) to continue to exercise its rights and remedies
under this Waiver Agreement.
10.9 Survival of Representations and Warranties. All
representations and warranties of the Borrower, the Guarantors,
and the European Subsidiaries contained in this Waiver
Agreement, the other Waiver Document, the other Loan Documents,
and in all other documents and instruments executed in
connection herewith or therewith shall survive the execution of
this Waiver Agreement and are material and have been or will be
relied upon by the Bank, notwithstanding any investigation made
by any person, entity or organization on the Bank's behalf. No
implied representations or warranties are created or arise as a
result of this Waiver Agreement or the documents comprising or
relating to this Waiver Agreement.
10.10Headings. The headings and underscoring of articles,
sections and clauses have been included herein for convenience
only and shall not be considered in interpreting this Waiver
Agreement.
10.11Integration. This Waiver Agreement and all documents
and instruments executed in connection herewith or otherwise
relating to this Waiver Agreement, including, without
limitation, the Loan 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.
10.12Amendment and Waiver. No amendment of this Waiver
Agreement, and no waiver, discharge or termination of any one or
more of the provisions thereof, shall be effective unless set
forth in writing and signed by all of the parties hereto.
10.13Successors and Assigns. This Waiver Agreement and the
other Loan Documents: (a) shall be binding upon the Bank, the
Borrower, each Guarantor, and each European Subsidiary and upon
their respective officers, directors, employees, agents,
trustees, representatives, nominees, parent corporation,
subsidiaries, heirs, executors, administrators, successors or
assigns, and (b) shall inure to the benefit of the Bank, the
Borrower, each Guarantor, and each European Subsidiary provided,
however, that neither the Borrower nor any Guarantor or European
Subsidiary may assign any rights hereunder or any interest
herein without obtaining the prior written consent of the Bank,
and any such assignment or attempted assignment shall be void
and of no effect with respect to the Bank.
10.14Severability of Provisions. Any provision of this
Waiver Agreement that is held to be inoperative, unenforceable,
void or invalid in any jurisdiction shall, as to that
jurisdiction, be ineffective, unenforceable, void or invalid
without affecting the remaining provisions in that jurisdiction
or the operation, enforceability or validity of that provision
in any other jurisdiction, and to this end the provisions of
this Waiver Agreement are declared to be severable. This Waiver
Agreement shall remain valid and enforceable notwithstanding the
invalidity, insufficiency, or unenforceability of any other Loan
Document.
10.15Conflicting Provisions. To the extent that any of the
terms in this Waiver Agreement contradict any of the terms
contained in any of the Loan Documents, the terms of this Waiver
Agreement shall control.
10.16Joint and Several Liability. The obligations and
liabilities of the Borrower and each Guarantor hereunder are
joint and several.
10.17 Intent to Limit Charges to Maximum Lawful Rate.
In no event shall the interest rate or rates payable under Loan
Documents, as amended by this Waiver Agreement, plus any other
amounts paid in connection herewith, exceed the highest rate
permissible under any law that a court of competent jurisdiction
shall, in a final determination, deem applicable. The parties
hereto, in executing and delivering this Waiver Agreement,
intend legally to agree upon the rate or rates of interest and
manner of payment stated within it; provided; however, that,
anything contained herein to the contrary notwithstanding, if
said rate or rates of interest or manner of payment exceeds the
maximum allowable under applicable law, then, ipso facto, as of
the date hereof, the Borrower, the Guarantors, and the European
Subsidiaries are and shall be liable only for the payment of
such maximum as allowed by law, and payment received from the
Borrower, the Guarantors, and the European Subsidiaries in
excess of such legal maximum, whenever received, shall be
applied to reduce the principal balance of the Obligations to
the extent of such excess.
10.18Counterparts; Effectiveness. This Waiver Agreement
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 Waiver Agreement. This Waiver Agreement 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.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the undersigned have caused this Waiver
Agreement to be executed by their duly authorized officers on
the date first above written.
ATTEST: FIRST UNION NATIONAL BANK
/s/ C. S. Orellana
By: /s/ Robert Cordell
Name: Robert Cordell
Title: Senior Vice President
ATTEST: SELAS CORPORATION OF
AMERICA
/s/ Judith L. Gatens
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President
ATTEST: SELAS SAS
/s/ Robert Pernelle By: /s/ Christian
Bailliart
Sales Manager Name: Christian Bailliart
Title: President
ATTEST: CFR-CECF FOFUMI RIPOCHE
/s/ Gerard Goset By: /s/ Christian
Bailliart
Chief Operating Officer Name: Christian Bailliart
Title: President
ATTEST: DEUER MANUFACTURING, INC.
/s/ Judith L. Gatens
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President
ATTEST: RESISTANCE TECHNOLOGY, INC.,
/s/ Judith L. Gatens
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President
ATTEST: RTI EXPORT, INC.
/s/ Judith L. Gatens
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President
ATTEST: RTI ELECTRONICS, INC.
/s/ Judith L. Gatens
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President