AMENDMENT NO. 5 AND CONSENT
Exhibit
4.4
AMENDMENT
NO. 5 AND CONSENT
AMENDMENT
NO. 5 AND CONSENT, dated as of August 18, 2009 (this "Amendment"), to the
Credit Agreement, dated as of July 17, 2007 and amended by Amendment No. 1 dated
as of February 14, 2008, Amendment No. 2 and Consent dated as of June 27, 2008,
Amendment No. 3 dated as of October 29, 2008 and Amendment No. 4 dated as of
March 12, 2009 (as so amended, the "Credit Agreement"),
by and among the lenders identified on the signature pages thereof (such
lenders, together with their respective successors and permitted assigns, are
referred to hereinafter each individually as a "Lender" and collectively as the
"Lenders"),
ABLECO FINANCE LLC, a Delaware limited liability
company, 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"), 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 Borrowers have requested that the Agent and the Lenders make certain
modifications to the Credit Agreement, and the Agent and the Lenders are willing
to consent to such requested modifications on and subject to the terms 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.
(a) Amendment to
Definitions. The definitions of "Funded Indebtedness", "Loan
Documents" and "Permitted Lien" in Schedule 1.1 of the Credit Agreement are
hereby amended by deleting such definitions in their entirety and replacing them
with the following:
"Funded 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 Term Loan, the
Working Capital 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 Canadian Guaranty, the Canadian Security Documents, the Cash
Management Agreements, the Collateral Access Agreements, the Control Agreements,
the Copyright Security Agreement, the Guaranty, the Intercompany Subordination
Agreement, the Intercreditor Agreement, 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."
""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 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 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 WHX Subordinated Indebtedness, 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."
(b) New
Definitions. The following definitions are hereby added in
alphabetical order to Schedule 1.1 of the
Credit Agreement:
""Amendment No. 5"
means Amendment No. 5, dated as of August 18, 2009, by and among the Loan
Parties, the Agent and the Required Lenders."
""Amendment No. 5 Effective
Date" means the date Amendment No. 5 becomes effective pursuant to
Section 3 of Amendment Xx. 0."
""XXX Subordinated
Indebtedness" means the Indebtedness incurred by Parent under the WHX
Debt Documents, plus the amount of interest thereof that is
paid-in-kind."
""WHX Subordinated Loan
Agreement" means the Subordinated Loan and Security Agreement, dated as
of August 19, 2009, by and among the Borrower, as borrower and WHX, as lender,
as amended, supplemented, restated or otherwise modified from time to
time."
""WHX Subordinated Loan
Documents" means the WHX Subordinated Loan Agreement and any documents,
instruments and agreements entered into in connection therewith or in connection
with any amendment, supplement, restatement, replacement or refinancing thereof,
as amended, modified, supplemented or restated 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."
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""WHX Subordination
Agreement" means that certain Intercreditor and Subordination Agreement,
dated as of August 18, 2009, by and among Agent, Working Capital Agent, and WHX,
and acknowledged and consented to by each Borrower and each Guarantor, as
amended, supplemented, restated or otherwise modified from time to
time."
(c) Section 6.01 of the
Credit Agreement is hereby amended by (A) deleting the "and" from the end of
subclause (h), (B) deleting the period at the end of subclause (i) and
substituting "; and" therefor, and (C) adding a new subclause (j) after
subclause (i) to read as follows:
"(j) the
WHX Subordinated Indebtedness."
(d) Section 6.16(a) of
the Credit Agreement 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."
(e) Section 6.16(c) of
the Credit Agreement 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:
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Applicable
Ratio
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Applicable
Date
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5.38:1.0
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June
30, 2009
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5.60:1.0
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September
30, 2009
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5.40:1.0
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December
31, 2009
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5.30:1.0
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March
31, 2010
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5.20:1.0
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June
30, 2010
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5.10:1.0
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September
30, 2010
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5.00:1.0
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December
31, 2010 and the last day of each fiscal quarter
thereafter
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3. Conditions to
Effectiveness. The effectiveness of this Amendment are subject
to the fulfillment, in a manner satisfactory to the Agent and the Lenders, of
each of the following conditions precedent (the date such conditions are
fulfilled or waived by the Agent and the Lenders is hereinafter referred to as
the "Amendment No. 5
Effective Date"):
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(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 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 17.9 of the Credit Agreement.
(c) Prepayment of Term
Loan. The Agent shall have received a prepayment in an amount
not less than $3,000,000 in immediately available funds, the proceeds of which
shall be applied to the remaining installments of principal due on the Term Loan
in the inverse order of maturity.
(d) Delivery of
Documents. The Agent and the Lenders shall have received the
following, each in form and substance satisfactory to the Agent and, unless
indicated otherwise, dated the Amendment No. 5 Effective Date:
(i)
counterparts of this Amendment, duly executed by the Required Lenders, the
Agent, each Loan Party;
(ii) counterparts
of the second amendment to the Handy & Xxxxxx Guaranty, duly executed by the
parties thereto, pursuant to which the guaranty limit shall be increased to
$17,000,000;
(iii) a
Consent in respect of the Working Capital Credit Agreement and the Intercreditor
Agreement, duly executed by the Working Capital Agent, which shall contain the
consent by the Working Capital Agent to the amendments and conditions contained
herein;
(iv) a
fully executed copy of the WHX Subordinated Loan Agreement and each other WHX
Debt Document;
(v) counterparts
of the WHX Subordination Agreement, duly executed by the parties thereto and
acknowledged by each Borrower and each Guarantor;
(vi) a
certificate of an officer of Parent, certifying that the true, correct and
complete copies of the WHX Subordinated Loan Documents are attached
thereto;
(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);
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(viii) a
certificate of an officer of each Loan Party, certifying as to the matters set
forth in subsection (a) of this Section 3;
(ix)
such other agreements, instruments, approvals, opinions and
other documents as the 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 by Borrowers to the 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 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 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 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.
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 the 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.
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(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
the 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.
(e) Costs and
Expenses. The Borrowers agree to pay on demand all reasonable
fees, costs and expenses of the 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.
[Remainder
of this Page Intentionally Left Bank.]
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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.
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BORROWERS:
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XXXXX, INC.,
a
Delaware corporation
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By:
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/s/
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Title:
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XXXXX
VISCOR LTD.,
a
Texas limited partnership
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| By: |
Xxxxx
Partners, Inc.,
Its
General Partner
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By:
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/s/
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Title:
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XXXXX SIGNTECH,
LTD.,
a
Texas limited partnership
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| By: |
Xxxxx
Partners, Inc.,
Its
General Partner
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By:
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/s/
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Title:
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KASCO
CORPORATION,
a
Delaware corporation
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By:
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/s/
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Title:
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SOUTHERN
SAW ACQUISITION CORPORATION,
a
Delaware corporation
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By:
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/s/
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Title:
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PARENT:
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BAIRNCO
CORPORATION,
a
Delaware corporation
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By:
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/s/
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Title:
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Amendment
No. 5
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AGENT
AND LENDERS:
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ABLECO
FINANCE LLC,
a
Delaware limited liability company, as Agent and as a Lender, on behalf of
itself and its affiliate assigns
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By:
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/s/
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Title:
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Amendment
No. 5
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