LIMITED GENERAL CONTINUING GUARANTY [Handy & Harman Guaranty]
Exhibit
4.48
[Handy
& Xxxxxx Guaranty]
This
LIMITED GENERAL CONTINUING GUARANTY
(this “Guaranty”), dated as
of February 14, 2008, is executed and delivered by each of the parties listed on
the signature pages hereof and those additional entities that hereafter become
parties hereto by executing the Form of Supplement attached hereto as Annex 1,
as guarantors (collectively, the “Guarantors”, and each
individually, a “Guarantor”), in favor
of ABLECO FINANCE LLC, a
Delaware limited liability company, as arranger and administrative agent for the
below defined Lenders (in such capacity, together with its successors and
assigns, if any, in such capacity, “Agent”), in light of
the following:
WHEREAS, Bairnco Corporation,
a Delaware corporation (“Parent”), each of
Parent’s Subsidiaries identified on the signature pages thereto (such
Subsidiaries are referred to hereinafter each individually as a “Borrower”, and
individually and collectively, jointly and severally, as “Borrowers”), the
below defined Lenders, and Agent have entered into that certain Credit Agreement
dated as of July 17, 2007 (including all annexes, exhibits and schedules thereto
and as amended, restated, supplemented or otherwise modified, from time to time,
the “Credit
Agreement”);
WHEREAS, Parent has requested
that the Agent consent to an amendment to the Credit Agreement, dated as of the
date hereof ("Amendment No. 1"),
which provides, among other things, for the amendment of certain financial
covenants;
WHEREAS, each Guarantor is an
Affiliate of one or more of the Borrowers and, as such, will benefit by virtue
of the financial accommodations extended to Borrowers by the Lender Group under
the Credit Agreement and Amendment No. 1; and
WHEREAS, in order to induce
the Lender Group to enter into Amendment No. 1 and to modify the Loan Documents
and to extend other financial accommodations to Borrowers pursuant to the Credit
Agreement, and in consideration thereof, and in consideration of any loans or
other financial accommodations heretofore or hereafter extended by the below
defined Lender Group to Borrowers, pursuant to the Loan Documents, each
Guarantor has agreed to guaranty the Guarantied Obligations.
NOW, THEREFORE, in
consideration of the foregoing, each Guarantor hereby agrees as
follows:
1. Definitions
and Construction.
(a) Definitions. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement (as amended by Amendment No.
1). The following terms, as used in this Guaranty, shall have the
following meanings:
“Agent” has the
meaning set forth in the preamble to this Guaranty.
"Amendment No. 1" has
the meaning set forth in the preamble to this Guaranty.
“Borrower” and “Borrowers” have the
respective meanings set forth in the recitals to this Guaranty.
“Credit Agreement” has
the meaning set forth in the recitals to this Guaranty.
“Guarantied
Obligations” means the Obligations now or hereafter existing under any
Loan Document, whether for principal, interest (including all interest that
accrues after the commencement of any Insolvency Proceeding irrespective of
whether a claim therefor is allowed in such case or proceeding), fees, expenses
or otherwise, and any and all expenses (including reasonable counsel fees and
expenses) incurred by the Agent or the Lenders in enforcing any rights under
this Guaranty. Without limiting the generality of the foregoing,
Guarantied Obligations shall include all amounts that constitute part of the
Guarantied Obligations and would be owed by the Borrowers to the Agent or the
Lenders under any Loan Document but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving Borrowers or any other
guarantor. Notwithstanding the foregoing, any legal fees which would
otherwise constitute "Guarantied Obligations", shall not constitute "Guarantied
Obligations" until 30 days after demand for payment of such fees is made by the
Agent to any Loan Party.
“Guarantor” and “Guarantors” have the
respective meanings set forth in the preamble to this Guaranty.
“Guaranty” has the
meaning set forth in the preamble to this Guaranty.
"Guaranty Limit" means
the lesser of (i) the aggregate amount of the Guarantied Obligations outstanding
at the time the Agent seeks to enforce the obligations of the Guarantors
hereunder in accordance with Section 4 hereof and
(ii) $10,000,000 minus
any optional prepayments by the Loan Parties of the Working Capital Term Loans;
provided, that
such prepayments shall not constitute mandatory prepayments under the Working
Capital Credit Agreement (as in effect on the Amendment No. 1 Effective Date),
shall not be made from the proceeds of an asset sale or the Steel Partners
Junior Investment, and shall not be a Rights Offering Payment.
"Intercreditor
Agreement" means the Intercreditor and Subordination Agreement, dated as
of the date hereof, by and among Agent, Wachovia Bank, National Association, in
its capacity as agent, and Steel Partners II, L.P., in its capacity as agent, as
acknowledged and agreed by Guarantors, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or
replaced.
“Lenders” means,
individually and collectively, each of the lenders identified on the signature
pages to the Credit Agreement, and shall include any other Person made a party
to the Credit Agreement in accordance with the provisions of Section 13.1 thereof
(together with their respective successors and assigns).
“Lender Group” means,
individually and collectively, each of the Lenders and Agent.
“New Subsidiary” has
the meaning set forth in Section
22.
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“Record” means
information that is inscribed on a tangible medium or which is stored in an
electronic or other medium and is retrievable in perceivable form.
“Supplement” has the
meaning set forth in Section
22.
“Voidable Transfer”
has the meaning set forth in Section 9.
(b) Construction. Unless
the context of this Guaranty clearly requires otherwise, references to the
plural include the singular, references to the singular include the plural, the
part includes the whole, the terms “includes” and “including” are not
limiting, and the term “or” has, except where otherwise indicated, the inclusive
meaning represented by the phrase “and/or.” The words “hereof,”
“herein,” “hereby,” “hereunder,” and other similar terms in this Guaranty refer
to this Guaranty as a whole and not to any particular provision of this
Guaranty. Section, subsection, clause, schedule, annex and exhibit
references herein are to this Guaranty unless otherwise
specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth
herein). Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against the Lender Group or Borrower,
whether under any rule of construction or otherwise. On the contrary,
this Guaranty has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of Guarantors and
Agent. Any reference herein to the satisfaction or payment in full of
the Guarantied Obligations shall mean the payment in full in cash (or cash
collateralization in accordance with the terms of the Credit Agreement) of all
Guarantied Obligations other than contingent indemnification Guarantied
Obligations and the full and final termination of any commitment to extend any
financial accommodations under the Credit Agreement and any other Loan
Document. Any reference herein to any Person shall be construed to
include such Person’s successors and assigns. Any requirement of a
writing contained herein shall be satisfied by the transmission of a Record and
any Record transmitted shall be treated and have the same effect as if such
Record was furnished in writing. The captions and headings are for convenience
of reference only and shall not affect the construction of this
Guaranty.
2. Guarantied
Obligations. Each Guarantor hereby, jointly and severally,
irrevocably and unconditionally guaranties to Agent, for the benefit of the
Lender Group, as and for its own debt, until the final and indefeasible payment
in full thereof, in cash, has been made, the due and punctual payment of the
Guarantied Obligations, when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of such Guarantor that the
guaranty set forth herein shall be a guaranty of payment and not a guaranty of
collection; provided that,
notwithstanding the foregoing, the aggregate liability of the Guarantors
hereunder shall not exceed the Guaranty Limit.
3. Continuing
Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof. To the maximum extent permitted by law, each Guarantor
hereby waives any right to revoke this Guaranty as to future Guarantied
Obligations. If such a revocation is effective notwithstanding the
foregoing waiver, each Guarantor acknowledges and agrees that (a) no such
revocation shall be effective until written notice thereof has been received by
Agent, (b) no such revocation shall apply to any Guarantied Obligations in
existence on the date of receipt by Agent of such written notice (including any
subsequent continuation, extension, or renewal thereof, or change in
the
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interest
rate, payment terms, or other terms and conditions thereof), (c) no such
revocation shall apply to any Guarantied Obligations made or created after such
date to the extent made or created pursuant to a legally binding commitment of
the Lender Group in existence on the date of such revocation, and (d) any
payment by any Borrower or from any source other than such Guarantor subsequent
to the date of such revocation shall first be applied to that portion of the
Guarantied Obligations as to which the revocation is effective and which are
not, therefore, guarantied hereunder, and to the extent so applied shall not
reduce the maximum obligation of such Guarantor
hereunder. Notwithstanding the foregoing, the aggregate liability of
the Guarantors hereunder shall not exceed the Guaranty Limit.
4. Performance
Under this Guaranty; Termination. Upon the occurrence of (i)
an Event of Default under Section 7.4 or Section 7.5 of the Credit Agreement or
(ii) any other Event of Default and, in the case of this clause (ii), if such
Event of Default exists twelve (12) months after the date of its occurrence,
each Guarantor immediately shall cause, as applicable, payment in respect of the
Guarantied Obligations to be made in immediately available funds in an amount
not to exceed the Guaranty Limit (or such lesser amount for which Agent may have
demanded hereunder) by wire transfer in accordance with such wire transfer
instructions as Agent may provide to Guarantors. Except as otherwise
provided, this Guaranty shall terminate, and no Guarantor shall have any further
liability in respect hereof, from and after the date on which (a) the Release
Conditions have been satisfied, (b) the Replacement Conditions have been
satisfied or (c) the Credit Agreement has been terminated and all Obligations
have been paid in full. Notwithstanding anything herein to the
contrary, this Guaranty shall continue to be effective or shall be reinstated,
as the case may be, if at any time any payment of any of the Guarantied
Obligations is rescinded or must otherwise be returned by Agent or any other
member of the Lender Group upon the commencement of an Insolvency Proceeding by
or against any Loan Party or otherwise, all as though such payment had not been
made.
5. Primary
Obligations. This Guaranty is a primary and original
obligation of each Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance which shall remain in full force and effect without
respect to future changes in conditions. Each Guarantor hereby agrees
that it is directly, jointly and severally with any other guarantor of the
Guarantied Obligations, liable to Agent, for the benefit of the Lender Group,
that the obligations of such Guarantor hereunder are independent of the
obligations of Borrowers or any other guarantor, and that a separate action may
be brought against any Guarantor, whether such action is brought against any
Borrower or any other guarantor or whether any Borrower or any other guarantor
is joined in such action. Each Guarantor hereby agrees that its
liability hereunder
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shall be
immediate and shall not be contingent upon the exercise or enforcement by any
member of the Lender Group of whatever remedies they may have against any
Borrower or any other guarantor, or the enforcement of any lien or realization
upon any security by any member of the Lender Group. Each Guarantor
hereby agrees that any release which may be given by Agent to any Borrower or
any other guarantor, or with respect to any property or asset subject to a Lien,
shall not release such Guarantor. Each Guarantor consents and
agrees that no member of the Lender Group shall be under any obligation to
marshal any property or assets of any Borrower or any other guarantor in favor
of such Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
6. Waivers.
(a) To
the fullest extent permitted by applicable law, each Guarantor hereby waives:
(i) notice of acceptance hereof; (ii) notice of any loans or other
financial accommodations made or extended under the Credit Agreement, or the
creation or existence of any Guarantied Obligations; (iii) notice of the
amount of the Guarantied Obligations, subject, however, to such Guarantor’s
right to make inquiry of Agent to ascertain the amount of the Guarantied
Obligations at any reasonable time; (iv) notice of any adverse change in
the financial condition of any Borrower or of any other fact that might increase
such Guarantor’s risk hereunder; (v) notice of presentment for payment,
demand, protest, and notice thereof as to any instrument among the Loan
Documents; and (vi) all notices (except for notices of any Default or Event
of Default under any of the Loan Documents if such notice is specifically
required to be given to such Guarantor under this Guaranty or any other Loan
Documents to which such Guarantor is a party) and demands to which such
Guarantor might otherwise be entitled.
(b) To
the fullest extent permitted by applicable law, each Guarantor hereby waives the
right by statute or otherwise to require any member of the Lender Group to
institute suit against any Borrower or any other guarantor or to exhaust any
rights and remedies which any member of the Lender Group has or may have against
any Borrower or any other guarantor. In this regard, each Guarantor
agrees that it is bound to the payment of each and all Guarantied Obligations up
to a maximum amount of the Guaranty Limit, whether now existing or hereafter
arising, as fully as if the Guarantied Obligations were directly owing to Agent
or the Lender Group, as applicable, by such Guarantor. Each Guarantor
further waives any defense arising by reason of any disability or other defense
(other than the defense that the Guarantied Obligations shall have been fully
and finally performed and indefeasibly paid in full in cash, to the extent of
any such payment) of any Borrower or by reason of the cessation from any cause
whatsoever of the liability of any Borrower in respect thereof.
(c) To
the fullest extent permitted by applicable law, each Guarantor hereby waives:
(i) any right to assert against any member of the Lender Group, any defense
(legal or equitable), set-off, counterclaim, or claim which such Guarantor may
now or at any time hereafter have against any Borrower or any other party liable
to any member of the Lender Group; (ii) any defense, set-off, counterclaim,
or claim, of any kind or nature, arising directly or indirectly from the present
or future lack of perfection, sufficiency, validity, or enforceability of the
Guarantied Obligations or any security therefor; (iii) any right or defense
arising by reason of any claim or defense based upon an election of remedies by
any member of the Lender Group including any defense based upon an election of
remedies by any member of the Lender Group; and (iv) the benefit of any
statute of limitations affecting such Guarantor’s liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to such Guarantor’s liability hereunder.
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(d) Until
the Guarantied Obligations, subject to the amount of the Guaranty Limit, have
been paid in full in cash, (i) each Guarantor hereby agrees to subordinate any
claim and shall not exercise any right or remedy, direct or indirect, arising by
reason of any performance such Guarantor has or may have as against any Borrower
with respect to the Guarantied Obligations, subject to the amount of the
Guaranty Limit, unless and until all Guarantied Obligations have been paid in
full; (ii) each Guarantor hereby agrees to subordinate any right to proceed
against any Borrower or any other Person, now or hereafter, for contribution,
indemnity, reimbursement, or any other suretyship rights and claims
(irrespective of whether direct or indirect, liquidated or contingent), with
respect to the Guarantied Obligations, subject to the amount of the Guaranty
Limit, unless and until all Guarantied Obligations have been paid in full; and
(iii) each Guarantor also hereby waives any right to proceed or to seek
recourse against or with respect to any property or asset of any
Borrower.
(e) If
any of the obligations of any Guarantor under this Guaranty at any time are
secured by a mortgage or deed of trust upon real property (subject to Permitted
Priority Liens), any member of the Lender Group may elect, in its sole
discretion, upon a default with respect to the obligations of such Guarantor
under this Guaranty, to foreclose such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law, before or after enforcing this
Guaranty, without diminishing or affecting the liability of such Guarantor or
any other Guarantor hereunder. Each Guarantor understands that
(a) by virtue of the operation of antideficiency law applicable to
nonjudicial foreclosures, an election by any member of the Lender Group to
nonjudicially foreclose on such a mortgage or deed of trust probably would have
the effect of impairing or destroying rights of subrogation, reimbursement,
contribution, or indemnity of such Guarantor against any Borrower or other
guarantors or sureties, and (b) absent the waiver given by such Guarantor
herein, such an election would estop any member of the Lender Group from
enforcing this Guaranty against such Guarantor. Understanding the
foregoing, and understanding that each Guarantor hereby is relinquishing a
defense to the enforceability of this Guaranty, each Guarantor hereby waives any
right to assert against any member of the Lender Group any defense to the
enforcement of this Guaranty, whether denominated “estoppel” or otherwise, based
on or arising from an election by any member of the Lender Group to
nonjudicially foreclose on any such mortgage or deed of trust. Each
Guarantor understands that the effect of the foregoing waiver may be that such
Guarantor may have liability hereunder for amounts with respect to which each
Guarantor may be left without rights of subrogation, reimbursement,
contribution, or indemnity against any Borrower or other guarantors or sureties.
Each Guarantor also agrees that the “fair market value” provisions of Section
580a of the California Code of Civil Procedure (and any similar law of New York
or any other applicable jurisdiction) shall have no applicability with respect
to the determination of each Guarantor’s liability under this
Guaranty.
(f) Without
limiting the generality of any other waiver or other provision set forth in this
Guaranty, each Guarantor waives all rights and defenses that such Guarantor may
have if all or part of the Guarantied Obligations are secured by real
property. This means, among other things:
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(i) Any
member of the Lender Group may collect from such Guarantor without first
foreclosing on any real or personal property collateral that may be pledged by
such Guarantor, any Borrower, or any other guarantor.
(ii) If
any member of the Lender Group forecloses on any real property collateral that
may be pledged by such Guarantor, any Borrower or any other
guarantor:
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(1)
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The
amount of the Guarantied Obligations or any obligations of any guarantor
in respect thereof may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is
worth more than the sale price.
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(2)
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Agent
may collect from such Guarantor even if any member of the Lender Group, by
foreclosing on the real property collateral, has destroyed any right such
Guarantor may have to collect from any Borrower or any other
Guarantor.
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This is
an unconditional and irrevocable waiver of any rights and defenses any Guarantor
may have if all or part of the Guarantied Obligations are secured by real
property. These rights and defenses are based upon Section 580a,
580b, 580d, or 726 of the California Code of Civil Procedure and any similar law
of New York or any other jurisdiction.
(g) WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTY, GUARANTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS
PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR
INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE §§ 2787, 2799,
2808, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2847, 2848, AND 2855, CALIFORNIA
CODE OF CIVIL PROCEDURE §§ 580A, 580B, 580C, 580D, AND 726, AND
CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR LAWS
OF ANY OTHER APPLICABLE JURISDICTION.
(h) WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN
ELECTION OF REMEDIES BY ANY MEMBER OF THE LENDER GROUP, EVEN THOUGH SUCH
ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY
FOR THE GUARANTIED OBLIGATIONS, HAS DESTROYED SUCH GUARANTOR’S RIGHTS OF
SUBROGATION AND REIMBURSEMENT AGAINST ANY BORROWER BY THE OPERATION OF
APPLICABLE LAW, INCLUDING §580D OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR ANY
SIMILAR LAWS OF ANY OTHER APPLICABLE JURISDICTION.
(i) Without
limiting the generality of any other waiver or other provision set forth in this
Guaranty, each Guarantor hereby also agrees to the following
waivers:
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(i) Agent’s
right to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of the Guarantied Obligations or any of
the Loan Documents. Each Guarantor waives all benefits and defenses
it may have under California Civil Code Section 2810 or any similar laws in any
other applicable jurisdiction and agrees that Agent’s rights under this Guaranty
shall be enforceable even if Borrowers had no liability at the time of execution
of the Loan Documents or the Guarantied Obligations are unenforceable in whole
or in part, or any Borrower later ceases to be liable with respect to all or any
portion of the Guarantied Obligations.
(ii) Each
Guarantor waives all benefits and defenses it may have under California Civil
Code Section 2809 or any similar laws in any other applicable jurisdiction with
respect to its obligations under this Guaranty and agrees that Agent’s rights
under the Loan Documents will remain enforceable even if the amount secured by
the Loan Documents is larger in amount and more burdensome than that for which
Borrowers are responsible. The enforceability of this Guaranty
against each Guarantor shall continue until the earliest to occur of (i) the
payment in full of all sums due under the Loan Documents, (ii) the payment by
the Guarantors of an aggregate amount equal to the Guaranty Limit or (iii) the
earlier termination of this Guaranty pursuant to the terms of the Credit
Agreement. The enforceability of this Guaranty against each Guarantor
shall not otherwise be limited or affected in any way by any impairment or any
diminution or loss of value of any security or collateral for any Borrower’s
obligations under the Loan Documents, from whatever cause, the failure of any
security interest in any such security or collateral or any disability or other
defense of any Borrower, any other guarantor of any Borrower’s obligations under
any other Loan Document (other than the other Guarantors hereunder), any pledgor
of collateral for any person’s obligations to Agent or any other person in
connection with the Loan Documents.
(iii) Each
Guarantor waives all benefits and defenses it may have under California Civil
Code §§ 2845, 2849 and 2850 or any similar laws of any other applicable
jurisdiction with respect to its obligations under this Guaranty, including the
right to require Agent to (A) proceed against any Borrower, any guarantor
of any Borrower’s obligations under any Loan Document, any other pledgor of
collateral for any person’s obligations to Agent or any other person in
connection with the Guarantied Obligations, (B) proceed against or exhaust
any other security or collateral Agent may hold, or (C) pursue any other
right or remedy for such Guarantor’s benefit, and agrees that Agent may exercise
its right under this Guaranty without taking any action against any Borrower,
any other guarantor of any Borrower’s obligations under the Loan Documents, any
pledgor of collateral for any person’s obligations to Agent or any other person
in connection with the Guarantied Obligations, and without proceeding against or
exhausting any security or collateral Agent holds.
(iv) The
paragraphs in this Section 6 which refer to certain sections of the California
Civil Code are included in this Guaranty solely out of an abundance of caution
and shall not be construed to mean that any of the above-referenced provisions
of California law are in any way applicable to this Guaranty.
7. Releases. Each
Guarantor consents and agrees that, without notice to or by such Guarantor and
without affecting or impairing the obligations of such Guarantor hereunder, any
member of the Lender Group may, by action or inaction, compromise or settle,
shorten or extend the Maturity Date or any other period of duration or the time
for the payment of the Guarantied Obligations, or discharge the performance of
the Guarantied Obligations, or may refuse to enforce the Guarantied Obligations,
or otherwise elect not to enforce the Guarantied Obligations, or may, by action
or inaction, release all or any one or more parties to, any one or more of the
terms and provisions of the Credit Agreement or any of
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the other
Loan Documents or may grant other indulgences to any Borrower or any other
guarantor in respect thereof, or may amend or modify in any manner and at any
time (or from time to time) any one or more of the Guarantied Obligations, the
Credit Agreement or any other Loan Document (including any increase or decrease
in the principal amount of any Guarantied Obligations or the interest, fees or
other amounts that may accrue from time to time in respect thereof), or may, by
action or inaction, release or substitute any Borrower or any other
guarantor, if any, of the Guarantied Obligations, or may enforce, exchange,
release, or waive, by action or inaction, any security for the Guarantied
Obligations or any other guaranty of the Guarantied Obligations, or any portion
thereof.
8. No
Election. The Lender Group shall have the right to seek
recourse against each Guarantor to the fullest extent provided for herein and no
election by any member of the Lender Group to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a
waiver of the Lender Group’s right to proceed in any other form of action or
proceeding or against other parties unless Agent, on behalf of the Lender Group,
has expressly waived such right in writing. Specifically, but without
limiting the generality of the foregoing, no action or proceeding by the Lender
Group under any document or instrument evidencing the Guarantied Obligations
shall serve to diminish the liability of any Guarantor under this Guaranty
except to the extent that the Lender Group finally and unconditionally shall
have realized indefeasible payment in full of the Guarantied Obligations,
subject to the amount of the Guaranty Limit, by such action or
proceeding.
9. Revival
and Reinstatement. If the incurrence or payment of the
Guarantied Obligations or the obligations of any Guarantor under this Guaranty
by such Guarantor or the transfer by any Guarantor to Agent of any property of
any Guarantor should for any reason subsequently be declared to be void or
voidable under any state or federal law relating to creditors’ rights, including
provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences, or other voidable or recoverable payments of money or transfers of
property (collectively, a “Voidable Transfer”),
and if the Lender Group is required to repay or restore, in whole or in part,
any such Voidable Transfer, or elects to do so upon the reasonable advice of its
counsel, then, as to any such Voidable Transfer, or the amount thereof that the
Lender Group is required or elects to repay or restore, and as to all reasonable
costs, expenses, and attorneys fees of the Lender Group related thereto, the
liability of Guarantors automatically shall be revived, reinstated, and restored
and shall exist as though such Voidable Transfer had never been
made.
10. Financial
Condition of Borrower. Each Guarantor represents and warrants
to the Lender Group that it is currently informed of the financial condition of
each Borrower and of all other circumstances which a diligent inquiry would
reveal and which bear upon the risk of nonpayment of the Guarantied
Obligations. Each Guarantor further represents and warrants to the
Lender Group that it has read and understands the terms and conditions of the
Credit Agreement and each other Loan Document. Each Guarantor hereby
covenants that it will continue to keep itself informed of each Borrower’s
financial condition, the financial condition of other guarantors, if any, and of
all other circumstances which bear upon the risk of nonpayment or nonperformance
of the Guarantied Obligations.
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11. Payments;
Application. All payments to be made hereunder by any
Guarantor shall be made in Dollars, in immediately available funds, and without
deduction (whether for taxes or otherwise) or offset and shall be applied to the
Guarantied Obligations in accordance with the terms of the Credit
Agreement.
12. Attorneys
Fees and Costs. Each Guarantor, jointly and severally, agrees
to pay, on demand, all attorneys fees and all other costs and expenses which may
be incurred by Agent or the Lender Group in connection with the enforcement of
this Guaranty or in any way arising out of, or consequential to, the protection,
assertion, or enforcement of the Guarantied Obligations (or any security
therefor), irrespective of whether suit is brought, subject to and included in
the Guaranty Limit, if demand for payment of such fees and expenses has been
made by Agent to any Borrower or Borrowers and payment for such fees and
expenses has not been received by Agent within 30 days of such
demand.
13. Notices. All
notices and other communications hereunder to Agent shall be in writing and
shall be mailed, sent, or delivered in accordance Section 11 of the
Credit Agreement. All notices and other communications hereunder to
any Guarantor shall be in writing and shall be mailed, sent, or delivered to
Guarantors in care of Handy & Xxxxxx at its address set forth on the
signature pages hereto in accordance with Section 11 of the
Credit Agreement.
14. Cumulative
Remedies. No remedy under this Guaranty, under the Credit
Agreement, or any other Loan Document is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any and
every other remedy given under this Guaranty, under the Credit Agreement, or any
other Loan Document, and those provided by law. No delay or omission
by the Lender Group or Agent on behalf thereof to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver
thereof. No failure on the part of the Lender Group or Agent on
behalf thereof to exercise, and no delay in exercising, any right under this
Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Guaranty preclude any other or further exercise
thereof or the exercise of any other right.
15. Severability
of Provisions. Each provision of this Guaranty shall be
severable from every other provision of this Guaranty for the purpose of
determining the legal enforceability of any specific provision.
16. Entire
Agreement; Amendments. This Guaranty constitutes the entire
agreement between Guarantors and the Lender Group pertaining to the subject
matter contained herein. This Guaranty may not be altered, amended,
or modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by each Guarantor and Agent,
on behalf of the Lender Group. Any such alteration, amendment,
modification, waiver, or consent shall be effective only to the extent specified
therein and for the specific purpose for which given. No course of
dealing and no delay or waiver of any right or default under this Guaranty shall
be deemed a waiver of any other, similar or dissimilar, right or default or
otherwise prejudice the rights and remedies hereunder.
-10-
17. Successors
and Assigns. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Lender Group; provided, however, no Guarantor
shall assign this Guaranty or delegate any of its duties hereunder without
Agent’s prior written consent and any unconsented to assignment shall be
absolutely null and void. Notwithstanding the foregoing, in the event
of the sale of any Guarantor, then upon the closing of such transaction, such
Guarantor or Guarantors shall be released as a Guarantor hereunder, and this
Guaranty shall terminate with respect to such Guarantor or
Guarantors. In the event of any assignment, participation, or other
transfer of rights by the Lender Group, the rights and benefits herein conferred
upon the Lender Group shall automatically extend to and be vested in such
assignee or other transferee.
18. No Third
Party Beneficiary. This Guaranty is solely for the benefit of
each member of the Lender Group, and each of their successors and assigns and
may not be relied on by any other Person.
19. Choice Of
Law And Venue; Jury Trial Waiver.
THE
VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK,
STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS
TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION
19.
EACH
GUARANTOR AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS GUARANTY MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
-11-
20. Counterparts;
Telefacsimile Execution. This Guaranty may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which, when executed and delivered, shall be deemed to be an original, and
all of which, when taken together, shall constitute but one and the same
Guaranty. Delivery of an executed counterpart of this Guaranty by
telefacsimile or other electronic method of transmission shall be equally as
effective as delivery of an original executed counterpart of this
Guaranty. Any party delivering an executed counterpart of this
Guaranty by telefacsimile or other electronic method of transmission also shall
deliver an original executed counterpart of this Guaranty but the failure to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Guaranty.
21. Representations
and Warranties. Each Guarantor hereby represents and warrants
as follows:
(a) Each
Guarantor (i) is a corporation or limited partnership, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization as set forth next to its name on the signature pages hereto, (ii)
has all requisite power and authority to conduct its business as now conducted
and as presently contemplated and to execute and deliver this Guaranty and to
consummate the transactions contemplated hereby and (iii) is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the properties owned or leased by it or in which the transaction of
its business makes such qualification necessary.
(b) The
execution, delivery and performance by each Guarantor of this Guaranty (i) have
been duly authorized by all necessary action, (ii) do not and will not
contravene its by-laws or limited partnership agreement, or any applicable law
or any material contractual restriction binding on or otherwise affecting it or
its properties, (iii) do not and will not result in or require the creation of
any Lien (other than pursuant to any Loan Document) upon or with respect to any
of its properties (other than Guarantors’ existing Loan and Security Agreements
with each of Wachovia Bank, National Association and Steel Partners II, L.P.),
and (iv) do not and will not result in any default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval which is necessary to the conduct of its
business.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority is required in connection with the due execution,
delivery and performance by any Guarantor of this Guaranty or any of the other
Loan Documents to which the Guarantor is a party, except for the filing of any
UCC financing statement or such other registrations, filings or recordings as
may be necessary to perfect the Lien purported to be created by any Loan
Documents to which the Guarantor is a party.
-12-
(d) Other than as disclosed in the filings
of WHX Corporation with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, there is no pending or, to the
knowledge of each Guarantor, threatened action, suit or proceeding affecting it
or to which any of its properties is subject, before any court or other
Governmental Authority or any arbitrator that (i) if adversely determined,
could reasonably be expected to result in a material adverse change to any
Guarantor or (ii) relates to this Guaranty or any transaction contemplated
hereby.
22. New
Subsidiaries. Each Subsidiary of a Guarantor acquired or
created after the date hereof (each, a “New Subsidiary”),
shall execute and deliver to Agent a Supplement substantially in the form of
Annex 1 (a
“Supplement”). Upon
the execution and delivery of the Supplement by such New Subsidiary, such New
Subsidiary shall become a Guarantor hereunder with the same force and effect as
if originally named as a Guarantor herein. The execution and delivery
of any instrument adding an additional Guarantor as a party to this Guaranty
shall not require the consent of any Guarantor hereunder or of Agent or any
Lender. The rights and obligations of each Guarantor hereunder shall
remain in full force and effect notwithstanding the addition of any new
Guarantor hereunder.
23. Subordination. Notwithstanding
anything to the contrary contained herein, the payment and satisfaction of the
Guarantied Obligations is and shall be subordinate in right of payment to the
Working Capital Debt (as defined in the Intercreditor Agreement) and is subject
to the terms and conditions of the Intercreditor Agreement.
[remainder
of page intentionally left blank]
-13-
IN WITNESS WHEREOF, the
undersigned has executed and delivered this Guaranty as of the date first
written above.
|
GUARANTORS
|
||||
|
|
HANDY
& XXXXXX, a New York corporation
|
|||
|
|
By:
|
/s/ | ||
|
|
Title:
|
|||
| Address: |
0000
Xxxxxxxxxxx Xxxxxx,
Xxxxx
X000
Xxxxx
Xxxxxx, XX 00000
|
|
OMG,
INC., a Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
CONTINENTAL
INDUSTRIES, INC., an Oklahoma corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
MARYLAND
SPECIALTY WIRE, INC., a Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
HANDY
& XXXXXX TUBE COMPANY, INC., a Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
CAMDEL
METALS CORPORATION, a Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
-14-
|
XXXXXXXX
METAL COATING CORPORATION. A Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
MICRO-TUBE
FABRICATORS, INC.. a Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
INDIANA
TUBE CORPORATION, a Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
XXXXX-XXXXXXXX,
INC., a Wisconsin corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
HANDY
& XXXXXX ELECTRONIC MATERIALS CORPORATION, a Florida
corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
SUMCO
INC., an Indiana corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
|
OMG
ROOFING, INC., a Delaware corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
-15-
|
OMNI
TECHNOLOGIES CORPORATION OF DANVILLE, a New Hampshire
corporation
|
||||
|
By:
|
/s/ | |||
|
Title:
|
||||
-00-
|
XXXXX
& XXXXXX XX XXXXXX, LIMITED, an Ontario corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
ELE
CORPORATION, a California corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
ALLOY
RING SERVICE INC., a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
XXXXXX
RADIATOR CORPORATION, a Texas corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
H&H
PRODUCTIONS, INC., a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
HANDY
& XXXXXX AUTOMOTIVE GROUP, INC., a Delaware
corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
HANDY
& XXXXXX INTERNATIONAL, LTD., a Delaware
corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
-17-
|
HANDY
& XXXXXX PERU, INC., a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
KJ-VMI
REALTY, INC., a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
XXX-XXXX
REALTY, INC., a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
PLATINA
LABORATORIES, INC., a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
SHEFFIELD
STREET CORPORATION, a Connecticut corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
SWM,
INC., a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
WILLING
B WIRE CORPORATION, a Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
-18-
SCHEDULE
1
Jurisdiction
of Each Guarantor
|
Guarantor
|
Jurisdiction
|
Annex 1
to General Continuing Guaranty
Form of
Supplement
Supplement
No. __ (this “Supplement”) dated as
of _______ to the General Continuing Guaranty dated as of February 14, 2008 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Guaranty”) by
each of the parties listed on the signature pages thereto and those additional
entities that thereafter become parties thereto (each a “Guarantor” and
collectively, the “Guarantors”), and
ABLECO FINANCE LLC, in
its capacity as agent for itself and the Lenders (as defined below) (in such
capacity, “Agent”).
WITNESSETH:
WHEREAS,
pursuant to that certain Credit Agreement dated as of July 17, 2007, by and
among the financial institutions from time to time parties thereto (the “Lenders”), Agent,
Bairnco Corporation (“Parent”) and each of
Parent’s Subsidiaries identified on the signature pages thereto as borrowers
(such Subsidiaries, together with Parent, are referred to hereinafter each
individually as a “Borrower”, and
individually and collectively, jointly and severally, as “Borrowers”)
(including all annexes, exhibits and schedules thereto and as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
the Lender Group (as defined therein) has agreed to make certain financial
accommodations to Borrowers;
WHEREAS,
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Guaranty, and if not defined therein, in
the Credit Agreement;
WHEREAS,
the Guarantors have entered into the Guaranty in order to induce the Lender
Group to continue to make the financial accommodations to Borrowers;
and
WHEREAS,
pursuant to Section 22 of the Guaranty, each Subsidiary of any Guarantor
acquired or created after the date of the Guaranty must execute and deliver the
Guaranty, and the execution of the Guaranty by the undersigned new Guarantor or
Guarantors (collectively, the “New Guarantor”) may
be accomplished by the execution of this Supplement in favor of Agent for the
benefit of the Lender Group.
NOW,
THEREFORE, for and in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
New Guarantor hereby agrees as follows:
SECTION
1. In
accordance with Section 22 of the Guaranty, the New Guarantor, by its signature
below, becomes a “Guarantor” under the Guaranty with the same force and effect
as if originally named therein as a “Guarantor” and the New Guarantor hereby (a)
agrees to all of the terms and provisions of the Guaranty applicable to it as a
“Guarantor” thereunder and (b) represents and warrants that the representations
and warranties made by it as a “Guarantor” thereunder are true and correct on
and as of the date hereof. In furtherance of the foregoing, the New
Guarantor does hereby, subject to the terms and conditions of the Guaranty,
irrevocably and unconditionally guaranty to Agent, for the
benefit
of the Lender Group, as and for its own debt, until final payment in full
thereof has been made, the payment of the Guarantied Obligations, when and as
the same shall become due and payable, whether at maturity, pursuant to a
mandatory prepayment requirement, by acceleration, or otherwise; it being the
intent of Guarantor that the guaranty set forth herein shall be a guaranty of
payment and not a guaranty of collection.
SECTION
2. The
New Guarantor represents and warrants to the Agent and the Lenders that this
Supplement has been duly executed and delivered by the New Guarantor and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors’ rights or by general principles of equity
(regardless of whether enforcement is being sought in equity or at
law).
SECTION
3. This
Supplement may be executed in multiple counterparts, each of which shall be
deemed to be an original, but all such separate counterparts shall together
constitute but one and the same instrument. Delivery of a counterpart
hereof by facsimile or other electronic method of transmission shall be
effective as delivery of a manually executed counterpart hereof.
SECTION
4. The
Guaranty shall remain in full force and effect as expressly supplemented
hereby.
SECTION
5. This
Supplement shall be interpreted and the rights and liabilities of the parties
hereto determined in accordance with the internal laws of the State of New
York.
[remainder
of this page intentionally left blank]
-2-
IN
WITNESS WHEREOF, the New Guarantor has duly executed this Supplement to the
Guaranty as of the day and year first above written.
|
NEW
GUARANTOR:
|
[NAME
OF NEW GUARANTOR]
|
||
|
By:
|
|||
|
Name:
|
|||
|
|
Title:
|
||
-3-
