ex45to8k06447_08272009.htm


    Exhibit
4.5

     

    AMENDMENT
AND CONSENT

    


    AMENDMENT
AND CONSENT, dated as of August 18, 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 a Subordinated Loan and Security Agreement,
dated as of the date hereof between Parent and WHX Corporation, a Delaware
corporation (“WHX”), in the form attached hereto as Exhibit A (the “WHX
Subordinated Loan Agreement”) and a Guarantee and Security Agreement, also as of
the date hereof, to secure the obligations of the Loan Parties to WHX under the
WHX Subordinated Loan Agreement; and

     

    WHEREAS,
the Loan Parties have requested that the Lender consent to the creation by the
Loan Parties of certain Liens in favor of WHX upon the assets of the Loan
Parties; 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 and Lender 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.  Schedule 1.1 to the
Credit Agreement, Definitions, is
hereby modified and amended by adding the following definitions in the
appropriate alphabetical order:

     

    ""Amendment No. 2"
means Amendment No. 2 to Credit Agreement, dated as of August 18, 2009, by and
among the Loan Parties and the Lender."

     

    ""Amendment No. 2 Effective
Date" means the date Amendment No. 2 becomes effective pursuant to
Section 2 of Amendment No. 2."

    


    “Loan Documents” means
this Agreement, the Canadian Guaranty, the Canadian Security Documents, the Cash
Management Agreements, the Collateral Access Agreements, the Control Agreements,
the Copyright Security Agreement, the Guaranty, the Intercreditor and
Subordination Agreement, the Mortgages, the Patent Security Agreement, the
Security Agreement, the Trademark Security Agreement, any note or notes executed
by a Borrower in connection with this Agreement and payable to a Lender, the WHX
Subordination Agreement, the WHX Subordinated Loan Agreement, and any other
agreement entered into, now or in the future, by any Loan Party or any of their
Subsidiaries, and any Lender in connection with this Agreement. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Permitted Liens”
means (a) Liens held by Lender to secure the Obligations (provided that
such Liens are subject to the provisions of the Subordination Agreement), (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
Lender’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 Working Capital Agent to secure the Working Capital
Indebtedness, so long as such Liens are subject to the provisions of the
Intercreditor Agreement, (m) Liens
held by Term A Agent to secure the Term A Indebtedness and (n) 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.”

     

    WHX Subordination
Agreement” means that certain Subordination Agreement, dated as of August
18, 2009, by and between Lender and WHX, and acknowledged and consented to by
each Borrower and each Guarantor.

     

    “WHX Subordinated Loan
Agreement” means that certain Subordinated Loan and Security Agreement,
dated as of August 18, 2009, between Parent and WHX.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

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

     

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

     

    (i)                      counterparts
of this Amendment, duly executed by each Loan Party;

     

    (ii)                     fully
executed copies of the WHX Subordinated Loan Documents;

     

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

     

    3.  Consent.  Notwithstanding
anything to the contrary in the Credit Agreement, the other Loan Documents or
the Intercreditor Agreement, Lender hereby consent to a prepayment of the Term
Loan (as such term is defined in the Credit Agreement) by Parent to the Term
Loan Agent on the date hereof in an aggregate amount not to exceed
$3,000,000.

     

    4.  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.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (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. __ Effective Date
as though made on and as of the Amendment No. __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. __ Effective Date, or would result from this Amendment
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 Amendment and jointly and severally ratifies
and confirms the terms of the Guaranty contained in 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 the Lender 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.

     

    6.  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
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 Amendment
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.  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 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.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    (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 the Lender 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 for contracts made and to be wholly performed within such
state.

     

    (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.

     

     

    


     

    [Remainder
of this Page Intentionally Left Blank.]

     

    
      
        
        

      

      
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    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:

                    	
                       

                    
	 
      	 
      


            

          

        

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        
          	
                  LENDER:

                	
                  STEEL
      PARTNERS II, L.P.,

                  a
      Delaware limited partnership, as Lender

                
	 
      	 
      
	 
      	
                  By:  STEEL
      PARTNERS, L.L.C

                   General
      Partner

                
	 	 
	 	 
	 
      	
                  By:

                	
                  /s/

                
	 
      	 
      	
                  Name:

                
	 
      	 
      	
                  Title: