ex453to10k06447_12312008.htm


    Exhibit 4.53

     

    
      AMENDMENT
AND CONSENT

      


      AMENDMENT
AND CONSENT, dated as of March 12, 2009 (this "Amendment and Consent"), is given
by Steel Partners II, L.P. pursuant to the Amended and Restated Credit
Agreement, dated as of July 17, 2007 (the "Credit Agreement"),
by and among Steel Partners II. L.P., as lender (such lender, together with its
successors and permitted assigns, is referred to hereinafter each individually
as the "Lender"), BAIRNCO CORPORATION, a
Delaware corporation ("Parent"), and each of
Parent's Subsidiaries identified on the signature pages thereof 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 each
of Parent's Subsidiaries identified on the signature pages thereof as a
Guarantor (such Subsidiaries are referred to hereinafter each individually as a
"Guarantor",
and individually and collectively, jointly and severally, as the "Guarantors"; and
together with Borrowers, each a "Loan Party" and
collectively, the "Loan
Parties").

       

      WHEREAS,
the Loan Parties are entering into an AMENDMENT NO. 4, dated as of the date
hereof to the Term A Credit Agreement in the form attached hereto as Exhibit A
(the “Term A Amendment”) and an AMENDMENT NO. 4 dated as of the date hereof to
the Working Capital Credit Agreement in the form attached hereto as Exhibit B
(the “Working Capital Amendment”); and

       

      WHEREAS,
the Loan Parties have requested that the Lender consent to the modifications to
the Term A Credit Agreement and the Working Capital Credit Agreement;
and

      


      WHEREAS,
the Lender is willing to provide such consent on and subject to the terms set
forth herein including certain amendments to the Credit Agreement,

       

      WHEREAS,
Borrowers and Lender are willing to make such amendments, subject to terms and
conditions set forth herein;

       

      WHEREAS,
by this Amendment, Borrowers, Guarantors, Agent and Lenders desire and intend to
evidence such amendments:

       

       

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

       

      1.           Definitions.

       

      (a)  Base Rate
Margin.

       

      The
definition of “Base Rate Margin” in Schedule 1.1 to the Credit Agreement is
hereby amended by deleting such subsection in its entirety and replacing it with
the following:

       

      “ ‘Base Rate Margin’ ”
means the Base Rate Margin as defined in the Term A Amendment, plus 3.00
percentage points.”

       

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

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      2.           Consent to Term A Amendment
and Working Capital Amendment.  Subject to Section 3
hereof, (i) the Lender consents to (A) the execution and delivery of the Term A
Amendment and the Working Capital Amendment and (B) the payments and
transactions by the Loan Parties that are referenced in such Term A Amendment
and Working Capital Amendment.  The effectiveness of this consent is
subject to the condition precedent that the proposed Term A Amendment and
Working Capital Amendment shall have been executed and delivered and all
conditions to the effectiveness of such Term A Amendment and Working Capital
Amendment shall have been met on or prior to the date hereof.  If all
of such conditions have not been met, the consents and releases set forth in
this Section 2 shall be null and void and of no force or effect.

       

      3.           Conditions to
Effectiveness.  The effectiveness of this Consent is subject to
the fulfillment, in a manner satisfactory to the Lender, of each of the
following additional conditions precedent:

       

      (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 the Lender pursuant
hereto 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 Consent on the date hereof as if 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 or would result from this Consent becoming
effective in accordance with its terms.

       

      (b)           Delivery of
Documents.  The Lender shall have received the following, each
in form and substance satisfactory to the Lender and, unless indicated
otherwise, dated the date hereof:

       

      (i)           counterparts
of this Amendment and Consent, duly executed by the Lender and each Loan
Party;

       

      (ii)           a
copy of the Term A Amendment, duly executed by the parties thereto, certified as
a true and correct copy by an officer of the Parent;

       

      (iii)           a
copy of the Working Capital Amendment, duly executed by the parties thereto,
certified as a true and correct copy by an officer of the Parent

       

      (iv)           a
Consent in respect of the Working Capital Credit Agreement and the Intercreditor
Agreement, duly executed by the Working Capital Agent and the Working Capital
Lenders, which shall contain the consent by the Working Capital Lenders to the
amendments contained herein, including, without limitation, the increase in the
interest rates;

       

      (v)           a
Consent in respect of the Term A Credit Agreement and the Intercreditor
Agreement, duly executed by the Term A Agent and the Term A Lenders, which shall
contain the consent by the Term A Lenders to the amendments contained herein,
including, without limitation, the increase in the interest rates;

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (vi)           a
certificate of an officer of each Loan Party, certifying as to the matters set
forth in subsection (a) of this Section 3; and

       

      (vii)           such
other agreements, instruments, approvals, opinions and other documents as the
Lender may reasonably request, it being expressly understood that the Lender
may, in its discretion, rely upon certificates of any Loan Party delivered to
the Working Capital Agent or the Term A Agent in connection with the amendments
of their respective credit agreements to the full extent as if the Lender were
an addressee of such certificates, and the Loan Parties hereby expressly agree
to such reliance by the Lender.

       

      4.           Representations and
Warranties.  Each of the Borrowers and the Guarantors
represents and warrants that the representations and warranties contained in
Section 4 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 and
Consent on and as of the date hereof as though made on and as of the date hereof
(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 date hereof, or would result from this Amendment and Consent
becoming effective in accordance with its terms.

       

      5.           Reaffirmations and
Acknowledgments. 

       

      (a)           Reaffirmation of
Guaranty.  Each Guarantor consents to the execution and
delivery by the Borrowers of this Consent and jointly and severally ratifies and
confirms the terms of the Guaranty with respect to the indebtedness now or
hereafter outstanding under the Credit Agreement as amended 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 the Lender under the
Security Agreement and the other Loan Documents are in full force and effect and
are enforceable in accordance with the terms of the Security Agreement and the
other Loan Documents, except for such Liens that are released pursuant to this
Consent.

       

      6.           Miscellaneous.

       

      (a)           Continued Effectiveness of
the Credit Agreement.  Except as otherwise expressly provided
herein, (i) 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 and (ii) to the extent that the Credit Agreement or any other
Loan Document purports to pledge to the Lender or to grant to Lender 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 Consent shall not operate as an amendment of
any right, power or remedy of the 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 Consent 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 the
Lender expressly reserves all of its 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.

       

      (c)           Counterparts.  This
Consent 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 Consent by
telefacsimile or electronic mail shall be equally as effective as delivery of an
original executed counterpart of this Consent.

       

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

       

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

       

      (f)           Consent as Loan
Document.  The Borrowers and each Guarantor hereby acknowledge
and agree that this Consent 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 Consent 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 Consent.

       

      (g)           Governing
Law.  This Consent shall be governed by the laws of the State
of New York applicable to contracts made and to be wholly performed
therein.

       

      (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 CONSENT 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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      IN
WITNESS WHEREOF, the parties hereto have caused this Consent 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:

                	 
      


        

         

      

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

       

      
        	
                LENDER:

              	
                STEEL
      PARTNERS II, L.P.,

                By
      Steel Partners II GP LLC

                    
      Its General Partner

                 

                 

              
	 
      	 
      
	 
      	
                By:

              	
                
                  /s/

                

              
	 
      	
                Name:

              	 
      
	 
      	
                Title:

              	 
      
	 
      	 
      


      

       

      
 

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      


      Exhibit
A

      


      Term
A  Amendment

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      Exhibit
B

      


      Working Capital
Amendment