EXHIBIT 4H
FIRST AMENDMENT TO
WAIVER AND AMENDMENT AGREEMENT
This First Amendment to Waiver and Amendment Agreement (the
Amendment) dated as of February 28, 2002 is made and entered into by
and among First Union National Bank, a national banking association,
with an office at Broad and Walnut Streets, Philadelphia, Pennsylvania
19109 (the Bank), Selas Corporation of America, a Pennsylvania
business corporation with offices located at 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 Bank, the Borrower and the Guarantors entered into that
certain Amended and Restated Credit Agreement dated as of July 31,
1998, as amended by an Amendment dated as of June 30, 1999, a Second
Amendment dated as of July 7, 2000 and a Third Amendment dated as of
January 19, 2001 (as amended, the "Credit Agreement"), pursuant to
which the Bank made certain term loans to the Borrower described
therein (the Term Loans) and agreed to make available to the Borrower
a revolving credit facility in the principal amount of Four Million
Five Hundred Thousand Dollars ($4,500,000) (the Revolving Credit).
B. The Guarantors jointly and severally guaranteed and became
surety for all loans, advances, debts, liabilities, obligations,
covenants and duties of the Borrower to the Bank pursuant to the
following agreements (collectively, the Borrower Surety Agreements):
(i) that certain Guaranty and Suretyship Agreement of Deuer dated as of
October 20, 1993 and amended as of July 31, 1998 (as amended, the
Deuer Surety Agreement), (ii) that certain Guaranty and Suretyship
Agreement of RTI dated as of October 20, 1993 and amended as of July
31, 1998 (as amended, the RTI Surety Agreement), (iii) that certain
Guaranty and Suretyship Agreement of RTIE dated as of October 20, 1993
and amended as of July 31, 1998 (as amended, the RTIE Surety
Agreement), and (iv) that certain Guaranty and Suretyship Agreement
of RTI Electronics dated as of February 20, 1997, as amended July 31,
1998 (as amended, the RTI Electronics Surety Agreement).
C. The Term Loans are evidenced by the following promissory
notes executed by the Borrower in favor of the Bank, which are
outstanding as of the date hereof: (i) Term Note D dated as of June 30,
1999 in the original principal amount of Nine Hundred Thousand Dollars
($900,000) (Term Note D), (ii) Term Note E dated as of January 19,
2001 in the original principal amount of Two Million Dollars
($2,000,000) (Term Note E), and (iii) Term Note F dated as of January
19, 2001 in the original principal amount of One Million Seven Hundred
Thousand Singapore Dollars (Singapore $1,700,000) (Term Note F; and
together with Term Note D and Term Note E, the Term Notes). The
Revolving Credit facility is evidenced by an Amended and Restated
Revolving Credit Note dated as of January 19, 2001 in the principal
amount of Four Million Five Hundred Thousand Dollars ($4,500,000)
between the Borrower and the Bank (the Revolving Credit Note). The
Term Notes and the Revolving Credit Note are collectively referred to
hereinafter as the Notes.
D. First Union National Bank, London Branch (London Branch)
and Selas SAS, a subsidiary of the Borrower, entered into that certain
Agreement dated as of February 2, 2001 (the Selas SAS Facility
Agreement) pursuant to which the Bank provided to Selas SAS a
discretionary line of credit facility in the aggregate amount of
Sixteen Million Euros (E16,000,000) on an on demand basis, expiring
on April 30, 2001 (the Selas SAS Facility) for the purposes of
providing: discretionary advance payment guarantees on behalf of Selas
SAS (the APG Facility); and a discretionary overdraft facility for
general working capital purposes with a sub-limit amount of Two Million
Euros (E2,000,000) that was later increased (the Overdraft
Facility). The London Branch and Selas SAS also entered into certain
term loan agreements (collectively, the Selas SAS Term Loan
Agreements), as follows: an agreement dated February 26, 1998 pursuant
to which the Bank made a term loan to Selas SAS in the original
principal amount of Fifteen Million French Francs (FF 15,000,000) (the
Selas SAS 1998 Term Loan Agreement); and an agreement dated January
2000 pursuant to which the Bank made a term loan to Selas SAS in the
original principal amount of One Million Seven Hundred and Fifty-Three
Thousand One Hundred and Fifty-Eight and 30/100 Euros (E1,753,158.30)
(the Selas SAS 2000 Term Loan Agreement).
E. The Borrower and Guarantors jointly and severally guaranteed
and became surety for all loans, advances, debts, liabilities,
obligations, covenants and duties of Selas SAS to the Bank, pursuant to
the following agreements (the Selas SAS Surety Agreements): (i) that
certain Unconditional Guaranty of Borrower dated as of January 10,
2000 (the Borrower Guaranty), (ii) that certain Unconditional
Guaranty of Deuer dated as of January 10, 2000 (the Deuer Guaranty),
(iii) that certain Unconditional Guaranty of RTI dated as of January
10, 2000 (the RTI Guaranty), (iv) that certain Unconditional Guaranty
of RTIE dated as of January 10, 2000 (the RTIE Guaranty), and (v)
that certain Unconditional Guaranty of RTI Electronics dated as of
January 10, 2000 (the RTI Electronics Guaranty).
F. As security for any and all indebtedness, liabilities and
obligations of the Borrower to the Bank, then existing or thereafter
arising, the Borrower: (i) granted to the Bank a security interest in
and lien on: (a) all of the Borrowers assets, then owned or thereafter
acquired, including, without limitation, all accounts, contract rights,
inventory, fixtures, machinery, equipment, general intangibles, and (b)
all of Borrowers rights under a certain contract with Production
Machinery Corporation in Talcahuano, Chile for the sale of and the
proceeds of a Five Million Twenty-Five Thousand Dollars ($5,025,000)
documentary letter of credit issued by Bank One, Columbus, Ohio
pursuant to that certain Security Agreement dated as of October 20,
1993, as amended July 31, 1998 between the Borrower and the Bank (as
amended, the Borrower Security Agreement); (ii) assigned, pledged and
granted to Bank a security interest in all of the issued and
outstanding stock of Deuer, RTI, RTIE and RTI Electronics pursuant to
that certain Second Amended and Restated Pledge Agreement dated as of
July 31, 1998 (the Borrower Pledge Agreement); and (iii) granted to
the Bank a first mortgage lien on certain real property of the Borrower
and improvements thereon located in Dresher, Upper Dublin Township,
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).
G. As security for any and all indebtedness, liabilities and
obligations of Deuer to the Bank, then existing or thereafter arising,
Deuer: (i) granted to the Bank a security interest in and lien on all
of Deuers assets, then owned or thereafter acquired, including,
without limitation, all accounts, contract rights, inventory, fixtures,
machinery, equipment, general intangibles pursuant to that certain
Security Agreement dated as of October 20, 1993, as amended July 31,
1998 between Deuer and the Bank (as amended, the Deuer Security
Agreement); and (ii) granted to the Bank a first mortgage lien on
certain real property of Deuer and improvements thereon located in
Moraine, 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).
H. As security for any and all indebtedness, liabilities and
obligations of RTI to the Bank, then existing or thereafter arising,
RTI: (i) granted to the Bank a security interest in and lien on all of
RTIs assets, then owned or thereafter acquired, including, without
limitation, all accounts, contract rights, inventory, fixtures,
machinery, equipment, general intangibles pursuant to that certain
Security Agreement dated as of October 20, 1993, as amended July 31,
1998 between RTI and the Bank (as amended, the RTI Security
Agreement); (ii) granted to the Bank a security interest in and lien
on certain patents and trademarks and other intellectual property
pursuant to that certain Patent and Trademark Security dated as of
October 20, 1993, as amended July 31, 1998 between RTI and the Bank
(the RTI Patent and Trademark Security Agreement); and (iii) granted
to the Bank a first mortgage lien on certain real property of RTI and
improvements thereon located in 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).
I. As security for any and all indebtedness, liabilities and
obligations of RTIE to the Bank, then existing or thereafter arising,
RTIE granted to the Bank a security interest in all of RTIEs assets,
then owned or thereafter acquired, including, without limitation, all
accounts, contract rights, inventory, fixtures, machinery, equipment,
general intangibles pursuant to that certain Security Agreement dated
as of October 20, 1993, as amended July 31, 1998 between RTIE and the
Bank (as amended, the RTIE Security Agreement).
J. As security for any and all indebtedness, liabilities and
obligations of RTI Electronics to the Bank, then existing or thereafter
arising, RTI Electronics granted the Bank a security interest in all of
RTI Electronics assets, then owned or thereafter acquired, including,
without limitation, all accounts, contract rights, inventory, fixtures,
machinery, equipment, general intangibles pursuant to that certain
Security Agreement dated as of October 20, 1993, as amended February
20, 1997 and July 31, 1998 between RTI Electronics and the Bank (as
amended, the RTI Electronics Security Agreement).
K. The Borrower, the Guarantors, and the European Subsidiaries
entered into that certain Waiver and Amendment Agreement dated as of
November 20, 2001 (the Waiver Agreement), pursuant to which the Bank
agreed to waive certain Financial Covenant Defaults (as defined
therein) and provide a new credit facility pursuant to which the Banks
London Branch agreed to issue certain advance payment guarantees.
J. The Waiver Agreement, the Credit Agreement, the Notes, the
Borrower Surety Agreements, the Selas SAS Facility Agreement, the Selas
SAS Term Loan Agreements, the Selas SAS Surety Agreements, the Borrower
Security Agreement, the Borrower Pledge Agreement, the Borrower
Mortgage and Security Agreement, the Deuer Security Agreement, the
Deuer Mortgage and Security Agreement, the RTI Security Agreement, the
RTI Patent and Trademark Security Agreement, the RTI Mortgage and
Security Agreement, the RTIE Security Agreement, the RTI Electronics
Security Agreement, together with the various agreements, instruments
and other documents executed in connection therewith and all amendments
and modifications thereto, now or hereafter in effect, shall be
referred to hereinafter as the Loan Documents.
K. The Bank, the Borrower, the Guarantors, and the European
Subsidiaries, pursuant to the terms hereof, wish to amend the Credit
Agreement, as provided herein.
NOW, THEREFORE, incorporating the Background by reference herein
and for other good and valuable consideration, the Bank, the Borrower,
the Guarantors, and the European Subsidiaries intending to be legally
bound hereby, agree as follows:
ARTICLE I - DEFINED TERMS
1.1 Defined Terms. Terms used herein which are capitalized but
not defined shall have the meanings ascribed to such terms in the Loan
Documents, as amended hereby.
ARTICLE II - AMENDMENT; COVENANTS
2.1 Amendment of the Definition of Revolving Credit Termination
Date. The following definition in the Credit Agreement is hereby
amended, restated and replaced as follows:
Revolving Credit Termination Date is hereby amended to mean
the earlier of (i) March 20, 2002 (as such date may be extended
from time to time in accordance with Section 2.8 hereof) or (ii)
the date on which the Revolving Credit Commitment is terminated
pursuant to Section 9.2 hereof.
2.2 Covenants. The Borrower shall provide to the Bank on or
before March 8, 2002, a detailed cash flow projection; and a complete
and detailed description of the purpose and use of funds in order to
have considered any request for additional borrowing.
ARTICLE III - REAFFIRMATION
The Borrower, the Guarantors and the European Subsidiaries (i)
acknowledge and consent to the terms and conditions set forth in this
Amendment, (ii) hereby ratify, affirm and reaffirm in all respects each
and all of the Loan Documents, including, without limitation, all
terms, conditions, representations and covenants contained therein, and
(iii) acknowledge the continued existence, validity and enforceability
of the Loan Documents, and acknowledge and agree that the Bank holds a
perfected security interest in the Collateral to secure the Borrower's
Obligations and agrees that the terms, conditions, representations and
covenants contained in the Security Agreement are binding upon it.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Amendment, the Borrower,
the Guarantors and the European Subsidiaries make the following
representations and warranties to the Bank, each and all of which shall
survive the execution and delivery of this Amendment:
4.1 No violation of applicable laws. The execution, delivery
and performance by the Borrower, the Guarantors and the European
Subsidiaries of this Amendment are within their corporate powers, have
been duly authorized by all necessary action taken by their duly
authorized officers and, if necessary, by making appropriate filings
with any governmental agency or unit and are the legal, binding, valid
and enforceable obligations of the Borrower, the Guarantors and the
European Subsidiaries; and do not (i) contravene, or constitute (with
or without the giving of notice or lapse of time or both) a violation
of any provision of applicable law, a violation of the organizational
documents of the Borrower, the Guarantors and the European
Subsidiaries or a default under any agreement, judgment, injunction,
order, decree or other instrument binding upon or affecting the
Borrower, the Guarantors and the European Subsidiaries, (ii) result in
the creation or imposition of any lien on any of their assets (other
than liens in favor of the Bank) or (iii) give cause for the
acceleration of any obligations of the Borrower, the Guarantors or the
European Subsidiaries to any other creditor.
4.2 Due Authorization. Each person executing this Amendment on
behalf of the Borrower, the Guarantors and/or the European Subsidiaries
is duly authorized by such respective entity to execute same.
4.3 Enforceability. This Amendment will be, the legal, valid
and binding obligation of the Borrower, the Guarantors and the European
Subsidiaries, enforceable against them in accordance with their
respective terms, subject only to bankruptcy, insolvency,
reorganization, moratorium or other laws or equitable principles
affecting creditors' rights generally.
4.4 Compliance with Applicable Laws. The Borrower is in
compliance in all material respects with all laws (including all
applicable environmental laws), regulations, and requirements
applicable to its business and has not received, and has no knowledge
of, any order or notice of any governmental investigation or of any
violation or claim of violation of any law, regulation or other
governmental requirement which would have a material adverse effect
upon its business operations or financial condition.
4.5 Failure of Conditions. The Borrower has failed to satisfy
the conditions precedent for issuance of Advance Payment Guarantees as
disclosed on Exhibit 4.5 hereto.
4.6 Representation and Warranties. All representations and
warranties made by the Borrower in the Loan Documents are true and
correct as of the date of this Amendment as if such representations and
warranties have been made on the date hereof.
ARTICLE V - CONDITIONS TO CLOSING
Conditions Precedent to Enforceability of This Amendment. This
Amendment shall be deemed effective only after the occurrence of the
following events:
5.1 Execution of Amendment. The Borrower's, Guarantors and
European Subsidiaries execution and delivery to the Bank of this
Amendment; and
5.2 Fees and Costs. The Borrower's payment to the Bank of an
amount sufficient to cover all of the Bank's reasonable costs and
expenses to date, including, without limitation, the Bank's reasonable
costs and expenses incurred in connection with the preparation and
negotiation of this Amendment (including the fees and expenses of the
Bank's counsel) through the date of this Amendment.
ARTICLE VI - MISCELLANEOUS
6.1 Continuing Effect. Except as amended hereby, all of the
Loan Documents shall remain in full force and effect and bind and inure
to the benefit of the parties thereto and are hereby ratified and
confirmed.
6.2 No Waiver. Except as expressly provided in the Waiver
Agreement, the Bank has not waived and does not waive any defaults or
Events of Default, now or hereafter existing, whether known or unknown;
and the Bank hereby reserves and preserves any and all rights and
remedies available to it under the Loan Documents with respect to any
such defaults or Events of Default.
6.3 Counterparts; Effectiveness. This Amendment may be executed
by facsimile signatures and in any number of counterparts and by the
different parties on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Amendment. This Amendment shall
be deemed to have been executed and delivered when the Bank has
received facsimile counterparts hereof executed by all parties listed
on the signature pages hereto.
6.4 Governing Law. This Amendment shall be governed and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
6.5 Integration. This Amendment contains the entire agreement
between the parties hereto with respect to the subject matter hereof
and may not be modified or changed in any way except in writing signed
by all parties.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to
be executed by their duly authorized officers on the date first above
written.
ATTEST: FIRST UNION NATIONAL BANK
By: /s/ Kathleen M.
Hedrick
Name: Kathleen M. Hedrick
Title: Vice President
SELAS CORPORATION OF
AMERICA
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President, Treasurer &
Secretary
SELAS SAS
By: /s/ Christian Bailliart
Name: Christian Bailliart
Title: President
CFR-CECF FOFUMI RIPOCHE
By: /s/ Christian Bailliart
Name: Christian Bailliart
Title: President
DEUER MANUFACTURING, INC.
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President, Treasurer &
Secretary
RESISTANCE TECHNOLOGY, INC.,
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President, Treasurer &
Secretary
RTI EXPORT, INC.
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President, Treasurer &
Secretary
RTI ELECTRONICS, INC.
By: /s/ Francis A.
Toczylowski
Name: Francis A. Toczylowski
Title: Vice President, Treasurer &
Secretary
Exhibit 4.5
Pursuant to Section 4.2.2(d) of the Waiver Agreement, on February
28, 2002, the Borrower, the Guarantors and Selas SAS are required to
repay amounts outstanding as necessary to reduce the Overdraft Facility
to an amount not greater than E4,650,000 Euros. As of the date hereof,
the Overdraft Facility has a balance of approximately E6,000,000 Euros
and the Borrower, the Guarantors and Selas SAS have indicated an
inability to make the necessary payment to reduce the Overdraft
Facility to the required level.
Pursuant to Section 4.2.2(e) of the Waiver Agreement, on or
before February 28, 2002, the Borrower is required to provide the Bank
with a written certification that the 2001 fourth quarter pre-tax
losses, if any, for the Borrower, the Guarantors, Selas SAS, CFR, and
their affiliates, on a consolidated basis are not more than $200,000.
The Borrower has indicated that the consolidated 2001 fourth quarter
pre-tax losses exceed $200,000.
Pursuant to Section 4.2.2(f) of the Waiver Agreement, the
Borrower is required to provide the Bank with a copy of a written offer
to purchase Selas SAS on or before February 28, 2002. The Borrower has
indicated an ability to obtain such an offer.