Exhibit 4.31
WAIVER, CONSENT AND SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS WAIVER, CONSENT AND SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
(this "Amendment") is made and entered into as of April 24, 2007, by and among
Bairnco Corporation, a Delaware corporation ("Bairnco"), Xxxxx, Inc., a Delaware
corporation ("Xxxxx"), Kasco Corporation, a Delaware corporation ("Kasco"),
Xxxxxxx & Xxxx GmbH, a Gesellschaft mit beschrankter Haftung organized under the
laws of the Federal Republic of Germany ("German Borrower"), Atlantic Service
Co. Ltd, a corporation organized under the laws of Canada ("Canadian Borrower"),
Atlantic Service Co. (UK) Ltd., an English company ("UK Borrower"), EuroKasco
S.A., a societe anonyme organized under the laws of France ("French Borrower";
and, together with Bairnco, Xxxxx, Kasco, German Borrower, Canadian Borrower and
UK Borrower, collectively, "Borrowers"), and Bank of America, N.A., a national
banking association, individually as the sole Lender as of the date hereof and
in its capacity as agent for the Lenders (together with its successors in such
capacity, "Agent").
RECITALS:
Borrowers, Lenders and Agent are parties to that certain Loan and Security
Agreement dated as of November 9, 2006, as amended by that certain Waiver and
First Amendment to Loan and Security Agreement dated March 23, 2007 (the "Loan
Agreement"), pursuant to which Agent and Lenders have made certain loans and
other financial accommodations to Borrowers.
Borrowers have advised Agent that an Event of Default has occurred and
currently exists under the Loan Agreement as a result of Borrowers' breach of
SECTIONS 10.1.9 AND 10.2.11 of the Loan Agreement (the "Stipulated Default").
The Stipulated Default exists because Xxxxx formed a new Subsidiary, Xxxxx India
Private Ltd., a private limited company organized under the laws of India
("Xxxxx India"), without giving notice to Agent as required under the Loan
Agreement.
Borrowers have further advised Agent that Xxxxx intends to make an initial
contribution of equity to Xxxxx India in an amount not to exceed $25,000 (the
"Contribution"). The Borrowers hereby acknowledge that pursuant to SECTION
10.2.6 of the Loan Agreement, Xxxxx is not permitted to consummate the
Contribution without the consent of Agent and Lenders.
Borrowers have further advised Agent that, simultaneously with the
execution and delivery of this Amendment and the consummation of the Permitted
Merger, Bairnco will become a borrower under a Loan and Security Agreement,
dated as of April 17, 2007, with Steel Partners II, L.P. (the "Bridge Lender")
and BZ Acquisition Corp. ("BZ"), pursuant to which Bridge Lender has provided a
subordinated secured bridge term loan credit facility in an aggregate principal
amount not to exceed $90,000,000 (together with any amendments or modifications
thereto and any restatements, renewals, extensions or refinancings thereof, in
each case on terms satisfactory to Agent, the "Bridge Facility") to BZ to
finance the purchase of the equity interests of Bairnco pursuant to BZ's
consummated tender offer to the holders of such equity interests (the "Tender
Offer"), which Bridge Facility will, simultaneously with the execution and
delivery of this Amendment and the consummation of the Permitted Merger, become
guaranteed by the Obligors other than Bairnco pursuant to a Guarantee, Pledge
and Security Agreement by and among Bairnco and the other Obligors, BZ and
Bridge Lender.
Borrowers have further advised Agent that, simultaneously with the
execution and delivery of this Amendment and the consummation of the Permitted
Merger, Bairnco and the other Obligors will become obligors under a Guarantee,
Pledge and Security Agreement with the Bridge Lender, BZ and certain other
parties (the "WHX Note Guarantee"), pursuant to which Bairnco and the other
Obligors will guarantee the obligations under a $15,000,000 promissory note
issued by WHX Corporation, a Delaware corporation ("WHX"), in favor of the
Bridge Lender (the "WHX Note").
In connection with the closing of the Bridge Facility and the WHX Note
Guarantee, Borrowers have requested that Agent and Lenders waive the Stipulated
Default, consent to the Contribution, and agree to certain amendments to the
Loan Agreement, and Agent and Lenders are willing to do so, upon the terms and
subject to the conditions contained herein.
NOW, THEREFORE, for the sum of TEN DOLLARS ($10.00) in hand paid and other
good and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. Each capitalized term used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such term in the
Loan Agreement.
2. WAIVER OF STIPULATED DEFAULT. In reliance on the representations,
warranties and agreements of Borrowers set forth in this Amendment, Agent and
the sole Lender hereby waive the Stipulated Default. In no event shall anything
contained herein be deemed to constitute a waiver of (a) any Default or Event of
Default in existence on the date hereof or hereafter arising, other than the
Stipulated Default, or (b) Borrowers' obligation to comply with all of the terms
and conditions of the Loan Agreement and the other Loan Documents, as the same
may be amended at any time hereafter, from and after the date hereof.
3. CONSENT TO CONTRIBUTION. In reliance on the representations, warranties
and agreements of Borrowers set forth in this Amendment, Agent and the sole
Lender hereby consent to the Contribution, notwithstanding Section 10.2.6 of the
Loan Agreement, PROVIDED, that the Contribution shall be consummated no later
than May 31, 2007 (or such later date as Agent may approve in writing).
4. AMENDMENTS TO LOAN AGREEMENT. In reliance on the representations,
warranties and agreements of Borrowers set forth in this Amendment, the Loan
Agreement is hereby amended as follows:
(a) By adding to SECTION 1.1 of the Loan Agreement, in proper
alphabetical sequence, the following new definitions:
APPROVED ADDBACK EXPENSES - those expenses previously
identified by Borrowers to Agent as expenses to be eliminated by
Borrowers immediately upon the Second Amendment Date, the aggregate
dollar amount of which shall not exceed $1,750,000 for the Fiscal
Month ending April 30, 2007, and shall be reduced by one-twelfth
(1/12) each Fiscal Month thereafter.
BRIDGE FACILITY - as defined in the Second Amendment.
BRIDGE LENDER - as defined in the Second Amendment.
INTERCREDITOR AGREEMENT - that certain Intercreditor Agreement
dated as of April 24, 2007, by and between the Agent and the Bridge
Lender with respect to the Collateral and the Obligations (as at any
time amended, restated, supplemented or otherwise modified).
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SECOND AMENDMENT - that certain Waiver, Consent and Second
Amendment to Loan and Security Agreement, dated as of April 24,
2007, by and among Borrowers, Lenders and Agent.
SECOND AMENDMENT DATE - April 24, 2007.
WHX - as defined in the Second Amendment.
WHX NOTE - as defined in the Second Amendment.
WHX NOTE GUARANTEE - as defined in the Second Amendment.
(b) By deleting the phrase "; provided, however, that for purposes
of this Agreement, Steel Partners II, LLP, which has made a tender offer
for the stock of Bairnco, is not an Affiliate of Borrower" from the
definition of "Affiliate" contained in SECTION 1.1 of the Loan Agreement.
(c) By deleting the definition of "Change of Control" contained in
SECTION 1.1 of the Loan Agreement in its entirety and by substituting in
lieu thereof the following:
CHANGE OF CONTROL - the occurrence of any of the following at
any time:
(i) any "person" (as that term is used in Section 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934 (the
"Exchange Act")) (other than Steel Partners II, L.P., a
Delaware limited partnership ("Steel Partners"), or any of its
Affiliates) becomes, directly or indirectly, the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act as in
effect on the date hereof) of securities representing fifty
percent (50%) or more of the combined voting power of the then
outstanding voting securities of any Borrower or any successor
thereof;
(ii) during any period of two (2) consecutive years or
less, individuals who at the beginning of such period
constituted the board of directors of any Borrower cease, for
any reason, to constitute at least a majority of such board of
directors, unless the election or nomination for election of
each new member of the board was approved by a vote of at
least two-thirds of the members of the board then still in
office who were members of the board at the beginning of the
period (EXCEPT that the appointment of directors designated by
Steel Partners or any of its Affiliates to the board of
directors of any Borrower shall not constitute a "Change of
Control" hereunder);
(iii) the equityholders of any Borrower approve any
merger or consolidation to which such Borrower is a party as a
result of which the persons who were equityholders of such
Borrower, immediately prior to the effective date of the
merger or consolidation (and excluding, however, any shares
held by any party to such merger or consolidation and their
Affiliates) shall have beneficial ownership of less than fifty
percent (50%) of the combined voting power for election of
members of the board of directors (or equivalent) of the
surviving entity following the effective date of such merger
or consolidation (EXCEPT that the Permitted Merger shall not
constitute a "Change of Control" hereunder); or
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(iv) the equityholders of any Borrower approve any
merger or consolidation as a result of which the equity
interests of such Borrower shall be changed, converted or
exchanged (other than a merger with a wholly-owned Subsidiary
of such Borrower or a reincorporation merger) or any
liquidation of such Borrower or any sale or other disposition
of fifty percent (50%) or more of the assets or earnings power
of such Borrower (EXCEPT that the Permitted Merger shall not
constitute a "Change of Control" hereunder).
(d) By deleting the definition of "Commitment Termination Date"
contained in SECTION 1.1 of the Loan Agreement in its entirety and by
substituting in lieu thereof the following:
COMMITMENT TERMINATION DATE - the earliest to occur of (a) the
Revolver Termination Date; (b) the date on which Borrowers terminate
the Revolver Commitments pursuant to SECTION 2.1.4; (c) the date on
which the Revolver Commitments are terminated pursuant to SECTION
11.2; or (d) such date on or after May 31, 2008, that Agent may
elect to make the Commitment Termination Date (the "Elected Date")
if the Debt under the Bridge Facility has not been refinanced on
terms satisfying the Refinancing Conditions (but with a final
maturity date not sooner than the date that is ninety (90) days
after the then Term Loan Maturity Date) on or before May 31, 2008;
PROVIDED, HOWEVER, that, (i) Agent shall give Borrowers one (1)
Business Day notice of the Elected Date if the Elected Date is to
occur between May 31, 2008, and June 30, 2008 (both inclusive), and
five (5) Business Days notice of the Elected Date if the Elected
Date is to occur on or after July 1, 2008, and (ii) if the Debt
under the Bridge Facility is refinanced, on or before May 31, 2008,
on terms satisfying the Refinancing Conditions (but with a final
maturity date not sooner than the date that is ninety (90) days
after the then Term Loan Maturity Date), then Agent shall not have
the right to elect a Commitment Termination Date under this clause
(d).
(e) By deleting the definition of "EBITDA" contained in SECTION 1.1
of the Loan Agreement in its entirety and by substituting in lieu thereof
the following:
EBITDA - determined on a consolidated basis for Borrowers and
Subsidiaries, net income, calculated before interest expense,
provision for income taxes, depreciation and amortization expense,
gains or losses arising from the sale of capital assets, gains or
losses arising from the write-up or write-down of assets, and any
extraordinary gains or losses (in each case, to the extent included
in determining net income); PROVIDED, that (i) for each Fiscal Month
ended prior to the Second Amendment Date, EBITDA shall be determined
(A) on a pro forma basis by including Sellers' Adjusted EBITDA for
such Fiscal Month (subject to Agent's satisfaction with Sellers'
financial reporting), (B) before any non-recurring expenses related
to the Tender Offer, subject to approval by Agent, which approval
shall not be unreasonably withheld, and (C) before any non-recurring
pre-production expenses related to Borrower's Chinese facility
incurred prior to the Closing Date, not to exceed in the aggregate
$606,000, and (ii) for each Fiscal Month ended after the Second
Amendment Date, EBITDA shall be determined (A) on a pro forma basis
by including Sellers' Adjusted EBITDA for such Fiscal Month (subject
to Agent's satisfaction with Sellers' financial reporting), (B)
before any Approved Addback Expenses (to the extent included in
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determining net income), and (C) before any non-recurring expenses
related to the closing of the Second Amendment and the transactions
contemplated therein (including, without limitation, the Tender
Offer, the Permitted Merger, the Bridge Facility, the WHX Note and
the WHX Guarantee), subject to approval by Agent, which approval
shall not be unreasonably withheld.
(f) By deleting the definition of "Fixed Charge Coverage Ratio"
contained in SECTION 1.1 of the Loan Agreement in its entirety and by
substituting in lieu thereof the following:
FIXED CHARGE COVERAGE RATIO - the ratio, determined on a
consolidated basis for Borrowers and Subsidiaries for the most
recent twelve (12) Fiscal Months, of (a) EBITDA MINUS Capital
Expenditures (except those financed with Borrowed Money other than
Revolver Loans) and cash taxes paid, to (b) Fixed Charges; PROVIDED,
that (i) for purposes of calculating the Fixed Charge Coverage Ratio
for any Fiscal Month ended prior to the Second Amendment Date, there
shall be excluded (A) all Distributions made prior to the Closing
Date, and (B) the aggregate amount of Capital Expenditures related
to Borrowers' Chinese facility made prior to the Closing Date, and
(ii) for purposes of calculating the Fixed Charge Coverage Ratio for
any Fiscal Month ended after the Second Amendment Date, there shall
be excluded (X) all Distributions made prior to the Second Amendment
Date, (Y) the aggregate amount of Capital Expenditures related to
Borrowers' Chinese facility made prior to the Closing Date, and (Z)
all cash taxes paid prior to the Second Amendment Date.
(g) By deleting the definition of "Fixed Charges" contained in
SECTION 1.1 of the Loan Agreement in its entirety and by substituting in
lieu thereof the following:
FIXED CHARGES - for any period, the sum of interest expense
(other than payment-in-kind), scheduled principal payments on
Borrowed Money, and Distributions made, determined as of the last
day of such period for Borrowers and Subsidiaries on a consolidated
basis; PROVIDED, that (i) for each Fiscal Month ended after the
Closing Date and prior to the Second Amendment Date, interest
expense and scheduled principal payments on Borrowed Money shall be
deemed to be an amount calculated by adding the sum of all such
interest expense and principal payments made from the Closing Date
through the date of determination, multiplying such sum by 365, and
dividing the product by the number of days elapsed since the Closing
Date, and (ii) for each Fiscal Month ending after the Second
Amendment Date, through and including the Fiscal Month ending March
31, 2008, interest expense and scheduled principal payments on
Borrowed Money shall be deemed to be an amount calculated by adding
the sum of all such interest expense and principal payments made
from the Second Amendment Date through the date of determination,
multiplying such sum by 365, and dividing the product by the number
of days elapsed since the Second Amendment Date.
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(h) By deleting the definition of "Leverage Ratio" contained in
SECTION 1.1 of the Loan Agreement in its entirety and by substituting in
lieu thereof the following:
LEVERAGE RATIO - the ratio, determined as of the end of any
Fiscal Quarter, of (a) Debt for Borrowed Money of Borrowers and
Subsidiaries as of the last day of such Fiscal Quarter (excluding
any such Debt owing by Borrowers to Bridge Lender under the Bridge
Facility and, as long as each Refinancing Condition is satisfied,
any Refinancing Debt related thereto), to (b) EBITDA for the four
(4) Fiscal Quarters then ending.
(i) By deleting the definition of "Loan Documents" contained in
SECTION 1.1 of the Loan Agreement in its entirety and by substituting in
lieu thereof the following:
LOAN DOCUMENTS - this Agreement, the Intercreditor Agreement,
the Other Agreements and the Security Documents.
(j) By deleting the definition of "Permitted Merger" contained in
SECTION 1.1 of the Loan Agreement in its entirety and by substituting in
lieu thereof the following:
PERMITTED MERGER - the merger, effective as of the Second
Amendment Date, of BZ Acquisition Corp., a Delaware corporation and
an affiliate of Steel Partners ("BZ"), with and into Bairnco with
Bairnco continuing as the surviving entity, pursuant to that certain
Agreement and Plan of Merger, dated as of February 23, 2007, by and
among Steel Partners, BZ and Bairnco (the "BZ Merger Agreement").
(k) By deleting the definition of "Permitted Option Settlement"
contained in SECTION 1.1 of the Loan Agreement in its entirety and by
substituting in lieu thereof the following:
PERMITTED OPTION SETTLEMENT - with respect to all outstanding
options to purchase Equity Interests of Bairnco, the payment by
Bairnco of a cash amount to each holder of such options in
settlement of such options, which payment shall have been
consummated prior to the Second Amendment Date on the terms
contemplated by the BZ Merger Agreement (or other terms satisfactory
to Agent in all respects).
(l) By deleting the definition of "Subordinated Debt" contained in
SECTION 1.1 of the Loan Agreement in its entirety and by substituting in
lieu thereof the following:
SUBORDINATED DEBT - Debt incurred by an Obligor that is
expressly subordinate and junior in right of payment to Full Payment
of all Obligations and is on terms (including maturity, interest,
fees, repayment, covenants and subordination) satisfactory to Agent
(including, without limitation, Debt owing by the Obligors to the
Bridge Lender under the Bridge Facility and pursuant to the WHX Note
Guarantee, so long as and to the extent that such Debt is subject to
the Intercreditor Agreement).
(m) By deleting the period at the end of SECTION 10.2.2(I) of the
Loan Agreement and substituting ";" in lieu thereof, and by adding the
following new subsections (j) and (k) immediately thereafter:
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(j) Liens in favor of the Bridge Lender securing the Bridge
Facility, so long as all such Liens are subject to the terms and
conditions of the Intercreditor Agreement; and
(k) Liens in favor of the Bridge Lender securing the WHX Note
and the WHX Note Guarantee, so long as all such Liens are subject to
the terms and conditions of the Intercreditor Agreement.
(n) By inserting the parenthetical "(including, as applicable, the
Intercreditor Agreement)" immediately after the word "Debt" and prior to
the existing parenthetical contained in SECTION 10.2.9(A) of the Loan
Agreement.
(o) By deleting the period at the end of SECTION 10.2.18 of the Loan
Agreement and by substituting in lieu thereof the phrase "; (g) the
transactions contemplated by the Bridge Facility; and (h) the transactions
contemplated by the WHX Note and the WHX Note Guarantee".
(p) By deleting SECTION 11.1(F) of the Loan Agreement in its
entirety and by substituting in lieu thereof the following:
(f) Any breach or default of an Obligor occurs under any
document, instrument or agreement to which it is a party or by which
it or any of its Properties is bound, relating to any Debt owing to
the Bridge Lender under the Bridge Facility or to the Bridge Lender
under the WHX Note Guarantee or any other Debt (other than the
Obligations) in excess of $250,000, if the maturity of or any
payment with respect to such Debt may be accelerated or demanded due
to such breach;
(q) By deleting the schedule attached to EXHIBIT E to the Loan
Agreement in its entirety and by substituting in lieu thereof the Schedule
to Exhibit E attached hereto.
(r) By deleting SCHEDULE 9.1.4 of the Loan Agreement in its entirety
and by substituting in lieu thereof Schedule 9.1.4 attached hereto.
5. ACKNOWLEDGMENTS AND STIPULATIONS. To induce Agent and the sole Lender
to enter into this Amendment and grant the accommodations set forth herein, each
Borrower hereby acknowledges and stipulates that (A) the Loan Agreement (as
amended hereby) and the other Loan Documents executed by such Borrower are
legal, valid and binding obligations of such Borrower that are enforceable
against such Borrower in accordance with the terms thereof, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally; (B) nothing contained
herein shall modify, amend or alter in any manner the obligations of Guarantors
under their respective Guaranties; and (C) the unpaid principal amount of the
Loans and the issued and outstanding Letters of Credit on and as of the close of
business on April 23, 2007, totaled $19,144,762.76.
6. RATIFICATION AND REAFFIRMATION. To induce Agent and the sole Lender to
enter into this Amendment and grant the accommodations set forth herein, each
Borrower (including Bairnco as the surviving entity of the Permitted Merger)
hereby ratifies and reaffirms the Obligations, the Loan Agreement (as amended
hereby) and each of the other Loan Documents and all of such Borrower's
covenants, duties, indebtedness and liabilities under the Loan Documents to
which such Borrower is a party, in each case as modified herein.
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7. REPRESENTATIONS AND WARRANTIES. To induce Agent and the sole Lender to
enter into this Amendment and grant the accommodations set forth herein, each
Borrower hereby represents and warrants to Agent and the sole Lender as follows:
(a) prior to the execution and delivery of this Amendment, WHX has
made an equity contribution in an amount not less than $15,000,000 to BZ;
(b) the Bridge Facility funded prior to April 24, 2007, in an amount
not less than $85,000,000, the proceeds of which were applied by BZ to
purchase the equity interests in Bairnco pursuant to the Tender Offer;
(c) simultaneously with the execution and delivery of this
Amendment, Borrowers are delivering to Agent the following:
(i) true, correct and complete copies of the definitive loan
documents evidencing the Bridge Facility, which documents are in the
form previously delivered to Agent;
(ii) true, correct and complete copies of the definitive loan
documents evidencing the WHX Note and the WHX Note Guarantee, which
documents are in the form previously delivered to Agent; and
(iii) a certificate of a duly authorized officer of Bairnco,
as the surviving entity of the Permitted Merger, upon which Agent
may conclusively rely until Agent is otherwise notified by Bairnco
in writing, certifying as follows:
(A) that attached copies of Bairnco's Organic Documents
(including the certificate of merger evidencing the Permitted
Merger) are true and complete, and in full force and effect
simultaneously with the execution and delivery of this
Amendment, without amendment except as shown;
(B) that an attached copy of resolutions authorizing
Bairnco's execution, delivery and performance of this
Amendment and the other documents contemplated herein and
Bairnco's consummation of the transactions contemplated herein
and therein and is true and complete, and that such
resolutions are in full force and effect simultaneously with
the execution and delivery of this Amendment, are duly adopted
by the directors of Bairnco as the surviving entity of the
Permitted Merger, and have not been amended, modified or
revoked; and
(C) to the title, name and signature of each Person
authorized to sign this Amendment and the other Loan Documents
on behalf of Bairnco as the surviving entity of the Permitted
Merger;
(d) except to the extent waived herein and giving effect to the
amendments set forth herein, no Default or Event of Default exists on the
date hereof or would result from the Contribution, the Permitted Merger,
the Bridge Facility or the WHX Note Guarantee;
(e) giving effect to the amendments set forth herein, no Lien on any
Property of any Obligor, other than Permitted Liens, exists on the date
hereof or results from the Permitted Merger;
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(f) the execution, delivery and performance of this Amendment have
been duly authorized by all requisite corporate action on the part of such
Borrower and this Amendment has been duly executed and delivered by such
Borrower; and
(g) each representation and warranty made by such Borrower in the
Loan Agreement (as amended hereby and giving effect to the waiver and
consent contained herein) is true and correct on and as of the date
hereof, except to the extent that any such representation or warranty
explicitly relates solely to an earlier date.
8. REFERENCE TO LOAN AGREEMENT. Each reference in the Loan Agreement to
"this Agreement," "hereunder," or words of like import shall mean and be a
reference to the Loan Agreement as amended by this Amendment.
9. BREACH OF AMENDMENT. This Amendment shall be part of the Loan Agreement
and a breach of any representation, warranty or covenant contained herein shall
constitute an Event of Default.
10. EXPENSES OF AGENT. Each Borrower, jointly and severally, agrees to
pay, ON DEMAND, all costs and expenses incurred by Agent in connection with the
preparation, negotiation and execution of this Amendment and any other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
Agent's legal counsel and any taxes or expenses associated with or incurred in
connection with any instrument or agreement referred to herein or contemplated
hereby.
11. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Georgia, without regard to
conflict of laws principles, and is intended to take effect as a document under
seal.
12. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
13. NO NOVATION, ETC. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to waive, release, amend or modify any
provision of the Loan Agreement or any of the other Loan Documents, each of
which shall remain in full force and effect. Notwithstanding any prior,
temporary mutual disregard of any of the terms of any contracts among the
parties, Borrowers shall be required strictly to comply with all of the terms of
the Loan Agreement (as amended hereby) and each of the other Loan Documents on
and after the date hereof. This Amendment is not intended to be, nor shall it be
construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
14. COUNTERPARTS; ELECTRONIC DELIVERY OF SIGNATURES. This Amendment may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original but all of which shall together constitute one and the same instrument.
Delivery of a manually executed counterpart of this Amendment by telefacsimile
or electronic mail transmission shall be equally effective as delivery of an
original executed counterpart of this Amendment, and any party delivering a
manually executed counterpart by telefacsimile or electronic mail transmission
shall also deliver an original executed counterpart, but the failure to deliver
an original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.
15. FURTHER ASSURANCES. Each Borrower agrees to take such further actions
as Agent reasonably requests from time to time in connection herewith to
evidence or give effect to the amendments set forth herein or any of the
transactions contemplated hereby.
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16. SECTION TITLES. Section titles and references used in this Amendment
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreements among the parties hereto.
17. RELEASE OF CLAIMS. TO INDUCE AGENT AND THE SOLE LENDER TO ENTER INTO
THIS AMENDMENT AND GRANT THE ACCOMMODATIONS SET FORTH HEREIN, EACH BORROWER
HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES AGENT AND THE SOLE LENDER, AND
ALL OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF AGENT AND
THE SOLE LENDER, FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR
CAUSES OF ACTION OF ANY KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR
CONTINGENT, DISPUTED OR UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN,
THAT SUCH BORROWER NOW HAS OR EVER HAD AGAINST AGENT OR THE SOLE LENDER ARISING
ON OR PRIOR TO THE DATE HEREOF UNDER OR IN CONNECTION WITH ANY OF THE LOAN
DOCUMENTS. EACH BORROWER HEREBY REPRESENTS AND WARRANTS TO AGENT AND THE SOLE
LENDER THAT SUCH BORROWER HAS NOT TRANSFERRED OR ASSIGNED TO ANY PERSON ANY
CLAIM THAT SUCH BORROWER EVER HAD OR CLAIMED TO HAVE AGAINST AGENT OR THE SOLE
LENDER.
18. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers on the
date first written above.
BORROWERS:
BAIRNCO CORPORATION
By: /s/
Name:
Title:
XXXXX, INC.
By: /s/
Name:
Title:
KASCO CORPORATION
By: /s/
Name:
Title:
XXXXXXX & XXXX GMBH
By: /s/
Name:
Title:
ATLANTIC SERVICE CO. LTD
By: /s/
Name:
Title:
ATLANTIC SERVICE CO. (UK) LTD.
By: /s/
Name:
Title:
EUROKASCO, S.A.
By: /s/
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
WAIVER, CONSENT AND SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
(BOFA-BAIRNCO)
BANK OF AMERICA, N.A.,
as Agent and sole Lender
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
WAIVER, CONSENT AND SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
(BOFA-BAIRNCO)
RATIFICATION AND REAFFIRMATION OF GUARANTORS
Each of the undersigned, being a Guarantor of the Obligations of Borrowers
at any time owing to Agent and Lenders, hereby (i) acknowledges receipt of a
copy of the foregoing Waiver, Consent and Second Amendment to Loan and Security
Agreement; (ii) consents to Borrowers' execution and delivery thereof and of the
other documents, instruments or agreements Borrowers agree to execute and
deliver pursuant thereto; (iii) agrees to be bound thereby; (iv) affirms that
nothing contained therein shall modify in any respect whatsoever such
Guarantor's guaranty of the Obligations and that each Guaranty to which such
Guarantor is a party shall remain in full force and effect; and (v) ratifies and
reaffirms the Obligations, each Loan Document to which such Guarantor is a
party, and all of such Guarantor's covenants, duties, indebtedness and
liabilities under the Loan Documents to which such Guarantor is a party, in each
case as modified by such Waiver, Consent and Second Amendment to Loan and
Security Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed this Ratification
and Reaffirmation of Guarantors as of the date of such Waiver, Consent and
Second Amendment to Loan and Security Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURES COMMENCE OF FOLLOWING PAGE]
RATIFICATION AND REAFFIRMATION OF GUARANTORS (BOFA-BAIRNCO)
GUARANTORS:
XXXXX ADHESIVES & FILMS, INC.
By: /s/
Name:
Title:
XXXXX MED INTERNATIONAL LLC
By: /s/
Name:
Title:
XXXXX PARTNERS, INC.
By: /s/
Name:
Title:
XXXXX SIGNTECH, LTD.
By: XXXXX ADHESIVES & FILMS, INC.,
Its General Partner1
By: /s/
Name:
Title:
XXXXX VISCOR LTD.
By: XXXXX ADHESIVES & FILMS, INC.,
Its General Partner
By: /s/
Name:
Title:
KASCO MEXICO LLC
By: /s/
Name:
Title:
SOUTHERN SAW ACQUISITION CORPORATION
By: /s/
Name:
Title:
RATIFICATION AND REAFFIRMATION OF GUARANTORS (BOFA-BAIRNCO)
SCHEDULE
to
EXHIBIT E
to
Loan and Security Agreement
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Period Ended _______________ Bairnco Scarlett Total
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
EBITDA
----------------------------------------------------------------------------------------------------------------------
Net Income
----------------------------------------------------------------------------------------------------------------------
+ Interest Expense
----------------------------------------------------------------------------------------------------------------------
+ Income Taxes
----------------------------------------------------------------------------------------------------------------------
+ Depreciation/Amortization
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+(-) Losses/Gains on Asset Sales
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+(-) Losses/Gains on Asset Revaluation
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+(-) Extraordinary Losses/Gains
----------------------------------------------------------------------------------------------------------------------
+ Approved Non-Recurring Expenses
----------------------------------------------------------------------------------------------------------------------
+ "Approved Addback Expenses"
----------------------------------------------------------------------------------------------------------------------
TOTAL EBITDA
----------------------------------------------------------------------------------------------------------------------
- Capital Expenditures (unfinanced)*
----------------------------------------------------------------------------------------------------------------------
- Cash Taxes**
----------------------------------------------------------------------------------------------------------------------
TOTAL EBITDA FOR FIXED CHARGE CALCULATION
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Fixed Charges
----------------------------------------------------------------------------------------------------------------------
Interest Expense***
----------------------------------------------------------------------------------------------------------------------
+ Scheduled Principal Payments***
----------------------------------------------------------------------------------------------------------------------
+ Distributions**
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TOTAL FIXED CHARGES
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
FIXED CHARGE COVERAGE RATIO
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*Excludes all Capital Expenditures related to Borrowers' Chinese facility made
prior to the Closing Date.
**Excludes all Cash Taxes paid and Distributions made prior to the Second
Amendment Date.
***(A) for each Fiscal Month ended after the Closing Date and prior to the
Second Amendment Date, interest expense and scheduled principal payments on
Borrowed Money shall be deemed to be an amount calculated by adding the sum of
all such interest expense and principal payments made from the Closing Date
through the date of determination, multiplying such sum by 365, and dividing the
product by the number of days elapsed since the Closing Date, and (B) for each
Fiscal Month ending after the Second Amendment Date, through and including the
Fiscal Month ending March 31, 2008, interest expense and scheduled principal
payments on Borrowed Money shall be deemed to be an amount calculated by adding
the sum of all such interest expense and principal payments made from the Second
Amendment Date through the date of determination, multiplying such sum by 365,
and dividing the product by the number of days elapsed since the Second
Amendment Date.
SCHEDULE 9.1.4
to
Loan and Security Agreement
NAMES AND CAPITAL STRUCTURE
1. The corporate names, jurisdictions of incorporation, and authorized and
issued Equity Interests of each Borrower and Subsidiary as of the
effective time of the Permitted Merger are as follows:
------------------------------------------------------------------------------------------------------------------------
Number and Class Number and Class
Name Jurisdiction of Authorized Shares of Issued Shares
---- ------------ -------------------- ----------------
------------------------------------------------------------------------------------------------------------------------
Bairnco Corporation Delaware Common - 1,000 Common - 100
------------------------------------------------------------------------------------------------------------------------
Xxxxx, Inc. Delaware Common - 200 Common - 200
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Xxxxx Partners, Inc. Delaware Common - 3,000 Common - 3,000
------------------------------------------------------------------------------------------------------------------------
Xxxxx Viscor Ltd. Texas N/A N/A
------------------------------------------------------------------------------------------------------------------------
Xxxxx MED International LLC Delaware N/A N/A
------------------------------------------------------------------------------------------------------------------------
Xxxxx Materials for China N/A N/A
Electronics Co. Ltd.
------------------------------------------------------------------------------------------------------------------------
Xxxxx Material China N/A N/A
Technologies Co. Ltd.
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Xxxxx Adhesives & Films, Delaware Common - 1,000 Common - 1,000
Inc.
------------------------------------------------------------------------------------------------------------------------
Xxxxx Signtech Ltd. Texas N/A N/A
------------------------------------------------------------------------------------------------------------------------
Kasco Corporation Delaware Common - 1,000 Common - 100
------------------------------------------------------------------------------------------------------------------------
Southern Saw Acquisition Delaware Common - 10,000 Common - 10,000
Corporation
------------------------------------------------------------------------------------------------------------------------
Kasco Mexico LLC Delaware N/A N/A
------------------------------------------------------------------------------------------------------------------------
Kasco Ensambly S.A. de C.V. Mexico N/A N/A
------------------------------------------------------------------------------------------------------------------------
Atlantic Service Company, United Kingdom Ordinary - 90 Ordinary - 32
Ltd. (UK)
Redeemable - 8 Redeemable - 8
Preferred - 2 Preferred - 2
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------------------------------------------------------------------------------------------------------------------------
Number and Class Number and Class
Name Jurisdiction of Authorized Shares of Issued Shares
---- ------------ -------------------- ----------------
------------------------------------------------------------------------------------------------------------------------
Atlantic Service Company, Canada Common - Unlimited Common - UNKNOWN, 100% owned by Kasco
Ltd. Corporation
Preference - Unlimited
Preference - UNKNOWN, 100% owned by
Kasco Corporation
------------------------------------------------------------------------------------------------------------------------
EuroKasco S.A.S. France UNKNOWN UNKNOWN - 100% owned by Kasco
Corporation
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx & Xxxx GmbH Germany UNKNOWN UNKNOWN - 100% owned by Kasco
Corporation
------------------------------------------------------------------------------------------------------------------------
Xxxxx India Private Ltd. India Common - 1,000 Common - 1,000
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2. The record holders of Equity Interests of each Borrower and Subsidiary as
of the effective time of the Permitted Merger are as follows:
------------------------------------------------------------------------------------------------------------------------
Name Class of Stock Number of Shares Record Owner
------------------------------------------------------------------------------------------------------------------------
Bairnco Corporation Common 100 WHX Corporation
------------------------------------------------------------------------------------------------------------------------
Xxxxx, Inc. Common 200 Bairnco Corporation
------------------------------------------------------------------------------------------------------------------------
Xxxxx Partners, Inc. Common 3,000 Xxxxx, Inc.
------------------------------------------------------------------------------------------------------------------------
Xxxxx Adhesives & Common 1,000 Xxxxx, Inc.
Films, Inc.
------------------------------------------------------------------------------------------------------------------------
Kasco Corporation Common 100 Bairnco Corporation
------------------------------------------------------------------------------------------------------------------------
Southern Saw Common 10,000 Kasco Corporation
Acquisition Corporation
------------------------------------------------------------------------------------------------------------------------
Atlantic Service Ordinary 32 Kasco Corporation
Company, Ltd. (UK)
Redeemable 8 Kasco Corporation
Preferred 2 Kasco Corporation
------------------------------------------------------------------------------------------------------------------------
Xxxxx India Private Common 997 Xxxxx, Inc.
Ltd.
1 Xxxxxx Xxxxxxx (officer)
1 Xxxxxxx Xxxxxxxx (officer)
1 Xxxxxxx Xxxxx (officer)
------------------------------------------------------------------------------------------------------------------------
3. All agreements binding on holders of Equity Interests of Borrowers and
Subsidiaries with respect to such interests are as follows:
Loan and Security Agreement, dated as of April 17, 2007, between BZ Acquisition
Corp. and Bairnco Corporation, as borrowers, and Steel Partners II, L.P.,
as lender
Guarantee, Pledge and Security Agreement, dated as of April 17, 2007, by and
between BZ Acquisition Corp. and Obligors, as obligors, and Steel Partners
II, L.P., as secured party, with respect to the $15,000,000 promissory
note issued by WHX Corporation to Steel Partners II, L.P.
Guarantee, Pledge and Security Agreement, dated as of April 17, 2007, by and
between BZ Acquisition Corp. and Obligors, as obligors, and Steel Partners
II, L.P., as secured party, with respect to the Bridge Facility
See also bylaws attached with closing and incumbency certificates.
4. The name of each Affiliate of a Borrower and the nature of the affiliation
are as follows:
See Borrowers and Subsidiaries listed above. In addition, as of the effective
time of the Permitted Merger, WHX Corporation, a Delaware corporation, is the
owner of 100% of the issued and outstanding Equity Interests of Bairnco
Corporation, and Steel Partners II, L.P., a Delaware limited partnership, is the
owner of the majority of the issued and outstanding Equity Interests of WHX
Corporation.
