ex43to8k06447_08272009.htm


    Exhibit
4.3

     

    AMENDMENT
NO. 5 TO CREDIT AGREEMENT AND CONSENT

    


    THIS
AMENDMENT NO. 5 TO CREDIT AGREEMENT AND CONSENT, dated as of August 18, 2009
(this “Amendment”), is made
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 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 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 by that certain Amendment No. 2 to Credit Agreement and
Consent, dated as of June 30, 2008, as further amended by that certain Amendment
No. 3 to Credit Agreement and Consent, dated as of October 29, 2008 and as
further amended by that certain Amendment No. 4 to Credit Agreement, dated as of
March 12, 2009 (as may be 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 requested that Agent and the Lenders make certain amendments
to the Credit Agreement; and

    


    WHEREAS,
Agent and the Lenders are willing 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)           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 $11,000,000 as of
the end of the fiscal quarter ending September 30, 2009 and as of the last day
of each fiscal quarter thereafter.”

     

    (b)           Section 6.16(c) of
the Credit Agreement, Leverage Ratio, is
hereby amended and restated in its entirety to read as follows:

     

    “(c)          Leverage
Ratio.  Have a Leverage Ratio, measured on a quarterly basis,
more than the applicable ratio set forth in the following table for the
applicable date set forth opposite thereto:

     

    
      
        
          
            
              
                	
                        Applicable
      Ratio

                      	
                        Applicable
      Date

                      
	
                        5.38:1.0

                      	
                        June
      30, 2009

                      
	
                        5.60:1.0

                      	
                        September
      30, 2009

                      
	
                        5.40:1.0

                      	
                        December
      31, 2009

                      
	
                        5.30:1.0

                      	
                        March
      31, 2010

                      
	
                        5.20:1.0

                      	
                        June
      30, 2010

                      
	
                        5.10:1.0

                      	
                        September
      30, 2010

                      
	
                        5.00:1.0

                      	
                        December
      31, 2010 and the last day of each fiscal quarter
    thereafter”

                      


              

            

          

        

      

    

    


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

    


    ““WHX Subordination
Agreement” means that certain Intercreditor and Subordination Agreement,
dated as of August 18, 2009, by and among Agent, Second Lien Agent and WHX, and
acknowledged and consented to by each Borrower and each Guarantor.

     

    “WHX Subordinated
Indebtedness” means the Indebtedness incurred by Parent under the WHX
Subordinated Loan Documents, plus the amount of interest thereof that is
paid-in-kind.

     

    “WHX Subordinated Loan
Agreement” means that certain Subordinated Loan and Security Agreement,
dated as of August 19, 2009, between Parent and WHX.

     

    “WHX Subordinated Loan
Documents” means the “Loan Documents” as such term is defined in the WHX
Subordinated Loan Agreement and any documents, instruments and agreements
entered into in connection with any amendment, supplemented, restated, replaced
and refinanced from time to time in accordance with the terms thereof, in each
case, to the extent permitted under the terms of the Agreement and the WHX
Subordination Agreement.”

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    (d)           Schedule 1.1 of the
Credit Agreement, Definitions, is
hereby further modified and amended by deleting the following definitions in
their entirety and replacing them with the following:

    


     ““Funding Indebtedness”
means, as of any date of determination, all Indebtedness for borrowed money or
letters of credit (other than letters of credit that provide collateral support
for other outstanding Funded Indebtedness at the time of such determination) of
Parent, determined on a consolidated basis in accordance with GAAP, that by its
terms matures more than one year after the date of calculation, and any such
Indebtedness maturing within one year from such date that is renewable or
extendable at the option of Parent or its Subsidiaries, as applicable, to a date
more than one year from such date, including, in any event, but without
duplication, with respect to Parent and its Subsidiaries, the Revolver Usage,
the Term Loan, the Second Lien Indebtedness, any Indebtedness under credit
facilities for non-U.S. Subsidiaries of the Parent and the amount of their
Capital Lease Obligations, but excluding the Subordinated Indebtedness, the WHX
Subordinated Indebtedness and Other Subordinated Indebtedness.

     

    “Loan Documents” means
“the Agreement, the Bank Product Agreements, any Borrowing Base Certificate, the
Collateral Access Agreements, the Canadian Guaranty, the Canadian Security
Documents, the Cash Management Agreements, the Control Agreements, the Copyright
Security Agreement, the Fee Letter, the Guaranty, the Intercompany Subordination
Agreement, the Intercreditor Agreement, the Letters of Credit, the Mortgages,
the Patent Security Agreement, the Security Agreement, the Subordination
Agreement, the WHX Subordination Agreement, the Trademark Security Agreement,
the Post-Closing Letter, any note or notes executed by a Borrower in connection
with the Agreement and payable to a member of the Lender Group, and any other
agreement entered into, now or in the future, by any Loan Party or any of their
Subsidiaries, and the Lender Group in connection with the
Agreement.

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

    “Permitted Liens”
means (a) Liens held by Agent to secure the Obligations, (b) Liens for unpaid
taxes, assessments, or other governmental charges or levies that either (i) are
not yet delinquent, or (ii) do not have priority over the Agent’s Liens and the
underlying taxes, assessments, or charges or levies are the subject of Permitted
Protests, (c) judgment Liens that do not constitute an Event of Default under
Section 7.7 of
the Agreement, (d) Liens set forth on Schedule P-2,
provided that any such Lien only secures the Indebtedness that it secures on the
Closing Date and any Refinancing Indebtedness in respect thereof, (e) the
interests of lessors under operating leases, (f) purchase money Liens or the
interests of lessors under Capital Leases to the extent that such Liens or
interests secure Permitted Purchase Money Indebtedness and so long as (i) such
Lien attaches only to the asset purchased or acquired and the proceeds thereof,
and (ii) such Lien only secures the Indebtedness that was incurred to acquire
the asset purchased or acquired or any Refinancing Indebtedness in respect
thereof, (g) Liens arising by operation of law in favor of warehousemen,
landlords, carriers, mechanics, materialmen, laborers, or suppliers, incurred in
the ordinary course of business and not in connection with the borrowing of
money, and which Liens either (i) are for sums not yet delinquent, or (ii) are
the subject of Permitted Protests, (h) Liens on amounts deposited in connection
with obtaining worker’s compensation or other unemployment insurance, (i) Liens
on amounts deposited in connection with the making or entering into of bids,
tenders, or leases in the ordinary course of business and not in connection with
the borrowing of money, (j) Liens on amounts deposited as security for surety or
appeal bonds in connection with obtaining such bonds in the ordinary course of
business, (k) (i) with respect to any Real Property Collateral, any encumbrance
or restriction contained in Schedule B of the title insurance policies for such
Real Property which have been approved by Lenders, shown on the surveys listed
on Schedule P-3
with respect to such Real Property, or such other encumbrances, restrictions,
easements, rights of way, and zoning restrictions that do not materially
interfere with or impair the use or operation thereof, and (ii) with respect to
all other Real Property, encumbrances, restrictions, easements, rights of way,
and zoning restrictions that do not materially interfere with or impair the use
or operation thereof, (l) Liens held by Second Lien Agent to secure the Second
Lien Indebtedness, so long as such Liens are subject to the provisions of the
Intercreditor Agreement, (m) Liens held by Subordinated Debt Lender to secure
the Subordinated Indebtedness, so long as such Liens are subject to the
provisions of the Subordination Agreement, (n) Liens held by Steel Partners II,
L.P. to secure the obligations under the WHX Guaranty, so long as such Liens are
subject to the provisions of the Subordination Agreement and (o) Liens held by
WHX to secure the obligations under the WHX Subordinated Loan Agreement, so long
as such Liens are subject to the provisions of the WHX Subordination
Agreement.  For the avoidance of doubt and notwithstanding anything to
the contrary contained herein, under no circumstances shall Permitted Liens
include any Liens imposed under the IRC or ERISA, or otherwise, that secures any
liability or obligation with respect to any Employee Plan.”

     

    3.           Conditions to
Effectiveness.  The effectiveness 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. 5 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. 5 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. 5 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. 5 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. 5 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. 5 Effective Date:

     

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

     

    (ii)                      a
fully executed copy of the third amendment to the limited guaranty of H&H,
duly executed by Second Lien Agent and H&H, whereby the limit of such
guaranty shall be increased from $12,000,000 to $17,000,000;

     

    (iii)                      a
fully executed copy of an amendment (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 to the corresponding
provisions of the Second Lien Credit Agreement;

     

    (iv)                      a
fully executed copy of the WHX Subordination Agreement, dated as of the date
hereof, by and among Agent, Second Lien Agent and WHX, and acknowledged by each
Borrower and each Guarantor;

     

    (v)                      a
certificate of an officer of Parent, certifying that the true, correct and
complete copies of the WHX Subordinated Loan Documents are attached
thereto;

     

    (vi)                      counterpart
of the consent to the Intercreditor Agreement, duly executed by Agent and Second
Lien Agent and acknowledged by each Loan Party, which shall contain the consent
by Agent and Second Lien Agent to the amendments, including, without limitation,
the increase in the interest rates;

     

    (vii)                      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);

     

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

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

    (ix)                      an
amendment fee in an amount equal to $58,000, such fee being fully earned and
non-refundable on the date hereof; and

     

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

     

    4.           Consent.  Notwithstanding
anything to the contrary in the Credit Agreement, the other Loan Documents or
the Intercreditor Agreement, Agent and the Required Lenders hereby consent to a
prepayment of the Term Loan (as such term is defined in the Second Lien Credit
Agreement) by Borrowers to the Second Lien Agent on the date hereof in an
aggregate amount not to exceed $3,000,000 from the proceeds of the WHX
Subordinated Loan Agreement.

     

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

     

    (a)           The
execution, delivery and performance by 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 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 on and as of the Amendment No. 5 Effective Date
as though made on and as of the Amendment No. 5 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. 5 Effective Date, or would result from this Amendment becoming
effective in accordance with its terms.

     

    6.           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 Section 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.

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

     

    (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.

     

    7.           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. 5 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.  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.

     

    (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.

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

     

    (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:

                                                    	
                                                       

                                                    


                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

                 

                
                  Amendment
No. 5 to Credit Agreement

                

                 

                
                  
                     

                  

                  
                     

                    
                      

                    

                  

                  
                     

                  

                

                 

              

            

          

        

      

    

    
      
        
          
            
              	
                      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:

                    	
                       

                    
	 
      	 
      


            

          

        

      

    

     

    
      Amendment
No. 5 to Credit Agreement

    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      
        	
                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:

              	 
      
	 
      	 
      	 
      
	 
      	 
      


      

    

    


     

     

     

     

     

     

     

    
      Amendment
No. 5 to Credit Agreement