ex445tos1a606447_07092008.htm


     

     

    Exhibit 4.45

     

     

    
      AMENDMENT
NO. 2 TO CREDIT AGREEMENT AND CONSENT

      


      THIS
AMENDMENT NO. 2 TO CREDIT AGREEMENT AND CONSENT, dated as of June 30, 2008 (this
“Amendment”),
by and among the Lenders (as defined below) identified on the signature pages
hereof, WELLS FARGO FOOTHILL,
INC., a
California corporation, as the administrative agent for the Lenders (in such
capacity, together with its successors and assigns in such capacity, “Agent”), BAIRNCO CORPORATION, a
Delaware corporation (“Parent”), each of
Parent’s Subsidiaries identified on the signature pages hereof as a Borrower
(such Subsidiaries, together with Parent, are referred to hereinafter each
individually as a “Borrower”, and
collectively, jointly and severally, as the “Borrowers”) and the
Guarantors signatory hereto.

      


      WHEREAS,
Borrowers, Agent and the lenders party thereto from time to time (such lenders,
together with their respective successors and permitted assigns, are referred to
hereinafter each individually as a “Lender” and collectively as the “Lenders”) are parties
to that certain Credit Agreement, dated as of July 17, 2007, as amended by that
certain Amendment No. 1 to Credit Agreement, dated as of February 14, 2008 (as
further amended, restated, supplemented or otherwise modified from time to time,
the “Credit
Agreement”; unless otherwise defined herein, all capitalized terms used
in this Amendment shall have the meanings ascribed to such terms in the Credit
Agreement);

      


      WHEREAS,
the Borrowers have advised Agent and the Lenders that they intend to enter into
a sale and leaseback transaction (the “Rancho Sale
Leaseback”) with respect to the real property located at 9433 Hyssop
Drive, Rancho Cucamonga, California (the “Rancho Property”),
pursuant to that certain Purchase and Sale Agreement and Escrow Instructions by
and between Arlon, Inc., a Delaware corporation, and The Rosalinde and Arthur
Gilbert Foundation (the “Rancho Sale
Agreement”);

      


      WHEREAS,
the Borrowers have advised Agent and the Lenders that they intend to enter into
a sale agreement (the “Kasco Sale”) with
respect to the real property described on Exhibit A attached
hereto (the “Kasco
Properties”);

      


      WHEREAS,
the Borrowers and the Guarantors have requested that Agent and the Lenders
consent to the Rancho Sale Leaseback and the Kasco Sale, and that Agent and the
Lenders modify the Credit Agreement to adjust certain financial covenants;
and

      


      WHEREAS,
Agent and the Lenders are willing to provide such consents, and to amend the
Credit Agreement, subject to the terms and conditions set forth
herein;

      


      NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the parties hereto hereby agree as follows:

      


      1.           Definitions. Any
capitalized term used herein and not defined shall have the meaning assigned to
it in the Credit Agreement.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      2.           Amendments to the Credit
Agreement.

       

      (a)           Amendment to
Definition.  Schedule 1.1 of the
Credit Agreement, Definitions, is
hereby modified and amended by deleting the definition of “EBITDA” in its
entirety and replacing it with the following:

       

      
        	
                 
      

              	
                ““EBITDA”
      means, with respect to any fiscal period, Parent's and its Subsidiaries'
      consolidated net earnings (or loss), minus
      extraordinary gains, interest income, plus
      interest expense, income taxes, and depreciation and amortization for such
      period, plus
      or
      minus, as the case may be, deferred financing costs that are
      written off so long as such costs arise from financings effectuated prior
      to the Closing Date, non cash amortization of deferred financing costs
      related to the Term Loan and the Second Lien Indebtedness, non cash gains
      or losses arising from the sale of capital assets, non cash gains or
      losses arising from the write up or write down of assets (including the
      non cash write down associated with the JD Edwards system), non-cash
      period pension costs or credit related to any existing Employee Plan, and
      any non cash extraordinary gains or losses (in each case, to the extent
      included in determining net income) for such period, in each case,
      determined on a consolidated basis in accordance with GAAP; provided, that
      for the calculations contemplated in Section 6.16 of
      the Agreement, EBITDA shall be determined (A) before any Approved Addback
      Expenses, (B) before Kasco Non-recurring Expenses, (C) before actual costs
      and expenses related to the sale process of Kasco incurred on or prior to
      December 31, 2008, (D) before any moving expenses and any related plant
      closure or asset disposal expenses of Arlon Signtech, Ltd. incurred on or
      prior to December 31, 2008, (E) before actual costs and expenses related
      to the transactions contemplated by this Agreement in an aggregate amount
      not to exceed $500,000, and (F) before actual costs and expenses related
      to the Rancho Sale Leaseback or the Kasco Sale in an amount not to exceed
      $300,000, in each case to the extent such items impact net
      income.”

              	 


      

       

      
        (b)           New
Definitions.  Schedule 1.1 to the
Credit Agreement, Definitions, is
hereby further modified and amended by adding the following definitions in the
appropriate alphabetical order:

         

      

      ““Amendment No. 2”
means Amendment No. 2 to Credit Agreement and Consent, dated as of June 30,
2008, by and among the Loan Parties, Agent and the Required
Lenders.

       

      “Amendment No. 2 Effective
Date” means the date Amendment No. 2 becomes effective pursuant to
Section 4 of Amendment No. 2.

       

      “Kasco Sale” means the
sale of certain real property set forth on Exhibit A of
Amendment No. 2.

       

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      “Rancho Sale
Leaseback” means that certain sale and leaseback transaction with respect
to the real property located at 9433 Hyssop Drive, Rancho Cucamonga, California,
pursuant to that certain Purchase and Sale Agreement and Escrow Instructions by
and between Arlon, Inc. a Delaware corporation, and The Rosalinde and Arthur
Gilbert Foundation.”

       

      
        (c)           Section 6.16(a) of
the Credit Agreement, Minimum TTM EBITDA,
is hereby amended and restated in its entirety to read as
follows:

      

       

      “(a)           Minimum TTM
EBITDA.  Permit TTM EBITDA to be less than the required amount
set forth in the following table for the applicable period set forth opposite
thereto:

       

      
        	
                Applicable
      Amount

              	
                Applicable
      Period

              
	
                $14,000,000

              	
                For
      the 12- month period

                ending
      March 31, 2008

              
	
                $14,500,000

              	
                For
      the 12- month period

                ending
      June 30, 2008

              
	
                $14,850,000

              	
                For
      the 12- month period

                ending
      September 30, 2008

              
	
                $15,200,000

              	
                For
      the 12- month period

                ending
      December 31, 2008

              
	
                $15,550,000

              	
                For
      the 12- month period

                ending
      March 31, 2009

              
	
                $15,900,000

              	
                For
      the 12- month period

                ending
      June 30, 2009

              
	
                $16,400,000

              	
                For
      the 12- month period

                ending
      September 30, 2009

              
	
                $16,900,000

              	
                For
      the 12- month period

                ending
      December 31, 2009

              
	
                $17,400,000

              	
                For
      the 12- month period ending March 31, 2010 and ending each fiscal quarter
      thereafter”

              


      

      


       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      3.           Consent to Rancho Sale
Leaseback and Kasco Sale.

       

      (a)           Rancho Sale
Leaseback.  Subject to Section 4 hereof
(including, without limitation, receipt by Agent of the Rancho Release Payment
(as defined below)), (i) Agent consents to (A) the execution and delivery of the
Rancho Sale Agreement and (B) the Rancho Sale Leaseback in accordance with the
terms set forth in the Rancho Sale Agreement, (ii) without recourse and without
any representation or warranty of any kind, Agent hereby releases its Liens on
the Rancho Property, (iii) the Loan Parties hereby release Agent and
Lenders from any duty, liability or obligation (if any) under any Loan Document
in respect of the Rancho Property, and (iv) Agent will execute and/or deliver
such instruments and other writings, and take such action, as the Borrowers may
reasonably request, to effect or evidence the release of all of the Liens on,
and security interests in, the Rancho Property held by Agent (on behalf of Agent
and the Lenders), but without representation, warranty or recourse to Agent or
the Lenders and at the sole cost and expense of the Loan Parties.  The
effectiveness of the consents and releases described in this Section 3(a) are
subject to the condition precedent that (x) the Amendment No. 2 Effective Date
has occurred and (y) Agent shall have received the Rancho Release Payment (the
proceeds of which are to be applied in accordance with Section 4(d) hereof)
on or prior to the consummation of the Rancho Sale Leaseback.  If
Agent has not received the Rancho Release Payment on or prior to July 14, 2008,
the consents and releases set forth in this Section 3(a) shall be
null and void and of no force or effect.

       

      (b)           Kasco
Sale.  Subject to Sections 4 and 5 hereof (including,
without limitation, receipt by Agent of the Kasco Release Payment (as defined
below)), (i) Agent consents to (A) the execution and delivery of a sale
agreement or a series of related sale agreements to sell the Kasco Properties
and (B) the Kasco Sale, which sale shall produce total net proceeds of not less
than $500,000, (ii) without recourse and without any representation or warranty
of any kind, Agent hereby releases its Liens on the Kasco Properties,
(iii) the Loan Parties hereby release Agent and Lenders from any duty,
liability or obligation (if any) under any Loan Document in respect of the Kasco
Properties, and (iv) Agent will execute and/or deliver such instruments and
other writings, and take such action, as the Borrowers may reasonably request,
to effect or evidence the release of all of the Liens on, and security interests
in, the Kasco Properties held by Agent (on behalf of Agent and the Lenders), but
without representation, warranty or recourse to Agent or the Lenders and at the
sole cost and expense of the Loan Parties.  The effectiveness of the
consents and releases described in this Section 3(b) are
subject to the condition precedent that (x) the Amendment No. 2 Effective Date
has occurred and (y) Agent shall have received the Kasco Release Payment (as
defined below) on or prior to the consummation of the Kasco Sale.  If
Agent has not received the Kasco Release Payment (the proceeds of which are to
be applied in accordance with Section 5 hereof)
within 90 days of the date of this Amendment, the consents and releases set
forth in this Section
3(b) shall be null and void and of no force or effect.

       

      4.           Conditions to
Effectiveness.  The effectiveness of this Amendment and the
consents set forth in Section 3 of this
Amendment are subject to the fulfillment, in a manner satisfactory to Agent and
the Lenders, of each of the following conditions precedent (the date such
conditions are fulfilled or waived by Agent and the Lenders is hereinafter
referred to as the “Amendment No. 2 Effective
Date”):

      
 

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      (a)           Representations and
Warranties; No Event of Default.  The representations and
warranties herein, in Section 4 of the Credit Agreement and in each other Loan
Document and certificate or other writing delivered to Agent and the Lenders
pursuant hereto on or prior to the Amendment No. 2 Effective Date shall be true
and correct in all material respects (except that such materiality qualifier
shall not be applicable to any representations and warranties that already are
qualified or modified by materiality in the text thereof) after giving effect to
this Amendment on and as of the Amendment No. 2 Effective Date as though made on
and as of such date (except to the extent such representations and warranties
expressly relate to an earlier date), and no Default or Event of Default shall
have occurred and be continuing on the Amendment No. 2 Effective Date or would
result from this Amendment becoming effective in accordance with its
terms.

       

      (b)           Payment of Fees,
Etc.  The Borrowers shall have paid all fees, costs, expenses
and taxes payable on the Amendment No. 2 Effective Date by the Borrowers
pursuant to Section 17.10 of the Credit Agreement.

       

      (c)           Delivery of
Documents.  Agent and the Lenders shall have received the
following, each in form and substance satisfactory to Agent and, unless
indicated otherwise, dated the Amendment No. 2 Effective Date:

       

      (i)           counterparts
of this Amendment, duly executed by the Required Lenders, Agent and each Loan
Party;

       

      (ii)           a
copy of the Rancho Sale Agreement, duly executed by the parties thereto,
certified as a true and correct copy by an officer of Parent;

       

      (iii)           a
Collateral Access Agreement with respect to the Rancho Property, duly executed
by the landlord of the Rancho Property (after the consummation of the Rancho
Sale Leaseback), Agent and Second Lien Agent, in form and substance reasonably
satisfactory to Agent;

       

      (iv)           a
fully executed copy of an amendment and consent (or similar agreement), in form
and substance reasonably satisfactory to Agent, duly executed by the Loan
Parties, Second Lien Agent, and Second Lien Lenders amending and consenting to
the corresponding provisions of the Second Lien Credit Agreement;

       

      (v)           a
certificate of an officer of each Loan Party, certifying that such Loan Party
has not amended or otherwise modified (A) its charter, certificate of formation
or other organizational document or (B) its by-laws, operating agreement or
other similar agreement, in each case since the Closing Date (or, if any such
organizational document has been amended or otherwise modified, attaching a
true, correct and complete copy of such amendment or modification);

       

      (vi)           a
certificate of an officer of each Loan Party, certifying as to the matters set
forth in subsection (a) of this Section
4;

       

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      (vii)           a
certificate of an officer of Parent, certifying that the conditions to closing
under the Rancho Sale Agreement have been satisfied or waived, and that the
Rancho Sale Leaseback has been consummated in accordance with the Rancho Sale
Agreement;

       

      (viii)                      such
other agreements, instruments, approvals, opinions and other documents as Agent
may reasonably request.

       

      (d)           Rancho Release
Payment.  Simultaneously with the consummation of the Rancho
Sale Leaseback, Agent shall have received 100% of the net cash proceeds due to
the Loan Parties and their affiliates under the Rancho Sale Agreement, which net
cash proceeds shall equal not less than $7,800,000 (the “Rancho Release
Payment”), which Rancho Release Payment shall be applied by Agent to the
Term Loan; provided, that if
less than the amount of the Rancho Release Payment is outstanding under the Term
Loan as of the date of such prepayment, the remaining portion of such proceeds
not applied to the Term Loan shall be applied to prepay the Term Loan (as
defined in the Second Lien Credit Agreement).

       

      5.           Post Closing Covenant/Kasco
Release Payment. Simultaneously with the consummation of the Kasco Sale,
Agent shall have received 100% of the net cash proceeds due to the Loan Parties
and their affiliates from the Kasco Sale, which net cash proceeds shall equal
not less than $500,000 (the “Kasco Release
Payment”), which Kasco Release Payment shall be applied by Agent to the
Term Loan; provided, that if
less than the amount of the Kasco Release Payment is outstanding under the Term
Loan as of the date of such prepayment, the remaining portion of such proceeds
not applied to the Term Loan shall be applied to prepay the Term Loan (as
defined in the Second Lien Credit Agreement).

       

      6.           Representations and
Warranties.  Each of the Borrowers and the Guarantors
represents and warrants as follows:

       

      (a)           The
execution, delivery and performance by the Borrowers or such Guarantor of this
Amendment and the performance by the Borrowers or such Guarantor of the Credit
Agreement, as amended hereby, have been duly authorized by all necessary action,
and the Borrowers or such Guarantor has all requisite power, authority and legal
right to execute, deliver and perform this Amendment and to perform its
obligations under the Credit Agreement, as amended hereby.

       

      (b)           This
Amendment and the Credit Agreement, as amended hereby, is a legal, valid and
binding obligation of the Borrowers or such Guarantor, enforceable against the
Borrowers or such Guarantor in accordance with the terms thereof, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors’
rights generally.

       

      (c)           The
representations and warranties contained in Section 5 of the
Credit Agreement are true and correct in all material respects (except that such
materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text
thereof) after giving effect to this Amendment on and as of the Amendment No. 2
Effective Date as though made on and as of the Amendment No. 2 Effective Date
(except to the extent such representations and warranties expressly relate to an
earlier date), and no Event of Default or Default has occurred and is continuing
on and as of the Amendment No. 2 Effective Date, or would result from this
Amendment becoming effective in accordance with its terms.

       

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

       

      7.           Reaffirmations and
Acknowledgments. 

       

      (a)           Reaffirmation of
Guaranty.  Each Guarantor consents to the execution and
delivery by the Borrowers of this Amendment and jointly and severally ratify and
confirm the terms of the Guaranty contained in Article 3 of the Credit Agreement
with respect to the indebtedness now or hereafter outstanding under the Credit
Agreement as amended hereby and all promissory notes issued
thereunder.

       

      (b)           Acknowledgment of Security
Interests. Each Loan Party hereby acknowledges that, as of the date
hereof, the security interests and Liens granted to Agent and the Lenders under
the Credit Agreement and the other Loan Documents are in full force and effect
and are enforceable in accordance with the terms of the Credit Agreement and the
other Loan Documents.

       

      8.           Miscellaneous.

       

      (a)             Continued Effectiveness of
the Credit Agreement.  Except as otherwise expressly provided
herein, the Credit Agreement and the other Loan Documents are, and shall
continue to be, in full force and effect and are hereby ratified and confirmed
in all respects, except that on and after the Amendment No. 2 Effective Date (i)
all references in the Credit Agreement to “this Agreement”, “hereto”, “hereof”,
“hereunder” or words of like import referring to the Credit Agreement shall mean
the Credit Agreement as amended by this Amendment, and (ii) all references in
the other Loan Documents to the “Credit Agreement”, “thereto”, “thereof”,
“thereunder” or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended by this Amendment.  To the extent
that the Credit Agreement or any other Loan Document purports to pledge to
Agent, or to grant to Agent, a security interest or lien, such pledge or grant
is hereby ratified and confirmed in all respects.  Except as expressly
provided herein, the execution, delivery and effectiveness of this Amendment
shall not operate as an amendment of any right, power or remedy of Agent and the
Lenders (including the Issuing Lender) under the Credit Agreement or any other
Loan Document, nor constitute an amendment of any provision of the Credit
Agreement or any other Loan Document.

       

      (b)             No
Waiver.  Except as expressly set forth herein, this Amendment
is not a waiver of, or consent to, any Default or Event of Default now existing
or hereafter arising under the Credit Agreement or any other Loan Document, and
Agent and the Lenders expressly reserve all of their rights and remedies under
the Credit Agreement and the other Loan Documents, under applicable law or
otherwise.  The waivers, consents and modifications herein are limited
to the specific instances and for the specific purposes set forth herein, shall
not apply to any facts or occurrences other than those on which the same are
based, shall not excuse the future non-compliance with the Loan Documents, and
shall not operate as a consent to any further or other matter under the Loan
Documents.

       

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      (c)             Counterparts.  This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.  Delivery of an executed counterpart of this Amendment by
telefacsimile or electronic mail shall be equally as effective as delivery of an
original executed counterpart of this Amendment.

       

      (d)             Headings.  Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.

       

      (e)             Costs and
Expenses.  The Borrowers agree to pay on demand all reasonable
fees, costs and expenses of Agent and the Lenders in connection with the
preparation, execution and delivery of this Amendment.

       

      (f)             Amendment as Loan
Document.  The Borrowers and each Guarantor hereby acknowledge
and agree that this Amendment constitutes a “Loan Document” under the Credit
Agreement.  Accordingly, it shall be an Event of Default under the
Credit Agreement if (i) any representation or warranty made by the Borrowers or
any Guarantor under or in connection with this Amendment shall have been untrue,
false or misleading in any material respect when made, or (ii) the Borrowers or
any Guarantor shall fail to perform or observe any term, covenant or agreement
contained in this Amendment.

       

      (g)             Governing
Law.  This Amendment shall be governed by the laws of the State
of New York.

       

      (h)             Waiver of Jury
Trial.  THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS.


       

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          8

          
            

          

        

        
          
          

        

      

       

       

      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered as of the date first above written.

       

      
        
          	
                  BORROWERS:

                	
                  ARLON,
      INC.,

                  a
      Delaware corporation

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      
	 
      	
                  ARLON
      VISCOR LTD.,

                  a
      Texas limited partnership

                
	 
      	 
      
	 
      	
                  By:

                	
                  Arlon
      Partners, Inc.,

                  Its
      General Partner

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      
	 
      	
                  ARLON
      SIGNTECH, LTD.,

                  a
      Texas limited partnership

                
	 
      	 
      
	 
      	
                  By:

                	
                  Arlon
      Partners, Inc.,

                  Its
      General Partner

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      
	 
      	
                  KASCO
      CORPORATION,

                  a
      Delaware corporation

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      
	 
      	
                  SOUTHERN
      SAW ACQUISITION CORPORATION,

                  a
      Delaware corporation

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      


        

        


        
          	
                  PARENT:

                	
                  BAIRNCO
      CORPORATION,

                  a
      Delaware corporation

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      


        

         

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

        
 

        
          	
                  SUBSIDIARY
      GUARANTORS:

                	
                  ARLON PARTNERS, INC.,
      

                
	 
      	 a
      Delaware corporation
	 	 
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      
	 
      	
                  ARLON
      MED INTERNATIONAL LLC,

                  a
      Delaware limited liability company

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      
	 
      	
                  ARLON
      ADHESIVES & FILMS, INC.,

                  a
      Texas corporation

                
	 
      	 
      
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      
	 
      	 
      
	 
      	
                  KASCO MEXICO LLC,
      

                
	 
      	a 
      Delaware limited liability company
	 	 
	 
      	
                  By:

                	 /s/
	 
      	
                  Title:

                	 
      


        

         

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        
        

        
          	
                  AGENT
      AND LENDERS:

                	
                  WELLS
      FARGO FOOTHILL, INC.,

                  a
      California corporation, as Agent and as a Lender, on behalf of itself and
      its affiliate assigns

                
	 
      	 
      
	 
      	
                  By:

                	/s/
      
	 
      	
                  Title:

                	 
      


        

         

      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      


      Exhibit
A