AMENDMENT NO. 2 AND CONSENT
Exhibit 4.48
AMENDMENT
NO. 2 AND CONSENT
AMENDMENT
NO. 2 AND CONSENT, dated as of June 30, 2008 (this "Amendment"), to the
Credit Agreement, dated as of July 17, 2007 and amended by Amendment No. 1 dated
as of February 14, 2008 (the "Credit Agreement"),
by and among the lenders identified on the signature pages thereof (such
lenders, together with their respective successors and permitted assigns, are
referred to hereinafter each individually as a "Lender" and collectively as the
"Lenders"),
ABLECO FINANCE LLC, a Delaware limited liability
company, as the administrative agent for the Lenders (in such capacity, together
with its successors and assigns in such capacity, "Agent"), BAIRNCO CORPORATION, a
Delaware corporation ("Parent"), and each of
Parent's Subsidiaries identified on the signature pages thereof as a Borrower
(such Subsidiaries, together with Parent, are referred to hereinafter each
individually as a "Borrower", and
collectively, jointly and severally, as the "Borrowers"), and each
of Parent's Subsidiaries identified on the signature pages thereof as a
Guarantor (such Subsidiaries are referred to hereinafter each individually as a
"Guarantor",
and individually and collectively, jointly and severally, as the "Guarantors"; and
together with Borrowers, each a "Loan Party" and
collectively, the "Loan
Parties").
WHEREAS,
the Borrowers and the Guarantors have requested that the Agent and the Lenders
consent to the Rancho Sale Leaseback and the Kasco Sale, and that the Agent and
the Lenders modify the Credit Agreement to adjust certain financial covenants;
and
1. Definitions. Any
capitalized term used herein and not defined shall have the meaning assigned to
it in the Credit Agreement.
(a) Amendment to
Definition. The definition of "EBIDTA" in Schedule 1.1 of the
Credit Agreement is hereby amended by deleting such definition in its entirety
and replacing it with the following:
""EBITDA" means, with
respect to any fiscal period, Parent's and its Subsidiaries' consolidated net
earnings (or loss), minus
extraordinary gains, interest income, plus
interest expense, income taxes, and depreciation and amortization for such
period, plus
or
minus, as the case may be, deferred financing costs that are written off
so long as such costs arise from financings effectuated prior to the Closing
Date, non cash amortization of deferred financing costs related to the Term Loan
and the Working Capital Indebtedness, non cash gains or losses arising from the
sale of capital assets, non cash gains or losses arising from the write up or
write down of assets (including the non cash write down associated with the XX
Xxxxxxx system), non-cash period pension costs or credit related to any existing
Employee Plan, and any non cash extraordinary gains or losses (in each case, to
the extent included in determining net income) for such period, in each case,
determined on a consolidated basis in accordance with GAAP; provided, that for
the calculations contemplated in Section 6.16 of the
Agreement, EBITDA shall be determined (A) before any Approved Addback Expenses,
(B) before Kasco Non-recurring Expenses, (C) before actual costs and expenses
related to the sale process of Kasco incurred on or prior to Xxxxxxxx 00, 0000,
(X) before any moving expenses and any related plant closure or asset disposal
expenses of Xxxxx Signtech, Ltd. incurred on or prior to December 31, 2008, (E)
before actual costs and expenses related to the transactions contemplated by
this Agreement in an aggregate amount not to exceed $500,000, and (F) before
actual costs and expenses related to the Rancho Sale Leaseback or the Kasco Sale
in an amount not to exceed $300,000, in each case to the extent such items
impact net income."
(b) New
Definitions. The following definitions are hereby added in
alphabetical order to Schedule 1.1 of the
Credit Agreement:
""Amendment No. 2"
means Amendment No. 2 and Consent, dated as of June 30, 2008, by and among the
Loan Parties, the Agent and the Required Lenders."
""Amendment No. 2 Effective
Date" means the date Amendment No. 2 becomes effective pursuant to
Section 4 of Amendment No. 2."
""Kasco Sale" means the
sale of certain real property as set forth in Exhibit A to
Amendment No. 2."
""Rancho Sale
Leaseback" means that certain sale and leaseback transaction with respect
to the real property located at 0000 Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx,
pursuant to that certain Purchase and Sale Agreement and Escrow Instructions by
and between Xxxxx, Inc., a Delaware corporation, and The Rosalinde and Xxxxxx
Xxxxxxx Foundation."
(c) Section 6.16(a) of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
|
Applicable
Amount
|
Applicable
Period
|
|
$14,000,000
|
For
the 12- month period
ending
March 31, 2008
|
|
$14,500,000
|
For
the 12- month period
ending
June 30, 2008
|
|
$14,850,000
|
For
the 12- month period
ending
September 30, 2008
|
|
$15,200,000
|
For
the 12- month period
ending
December 31, 2008
|
|
$15,550,000
|
For
the 12- month period
ending
March 31, 2009
|
|
$15,900,000
|
For
the 12- month period
ending
June 30, 2009
|
|
$16,400,000
|
For
the 12- month period
ending
September 30, 2009
|
|
$16,900,000
|
For
the 12- month period
ending
December 31, 2009
|
|
$17,400,000
|
For
the 12- month period ending March 31, 2010 and ending each fiscal quarter
thereafter"
|
2
3
(a) Representations and
Warranties; No Event of Default. The representations and
warranties herein, in Section 4 of the Credit Agreement and in each other Loan
Document and certificate or other writing delivered to the Agent and the Lenders
pursuant hereto on or prior to the Amendment No. 2 Effective Date shall be true
and correct in all material respects (except that such materiality qualifier
shall not be applicable to any representations and warranties that already are
qualified or modified by materiality in the text thereof) after giving effect to
this Amendment on and as of the Amendment No. 2 Effective Date as though made on
and as of such date (except to the extent such representations and warranties
expressly relate to an earlier date), and no Default or Event of Default shall
have occurred and be continuing on the Amendment No. 2 Effective Date or would
result from this Amendment becoming effective in accordance with its
terms.
(b) Payment of Fees,
Etc. The Borrowers shall have paid all fees, costs, expenses
and taxes payable on the Amendment No. 2 Effective Date by the Borrowers
pursuant to Section 17.9 of the Credit Agreement.
(i) counterparts
of this Amendment, duly executed by the Required Lenders, the Agent, each Loan
Party;
(ii) a
copy of the Rancho Sale Agreement, duly executed by the parties thereto,
certified as a true and correct copy by an officer of the Parent;
(iii) a
Collateral Access Agreement with respect to the Rancho Property, duly executed
by the landlord of the Rancho Property (after the consummation of the Rancho
Sale Leaseback), the Working Capital Agent and the Agent, in form and substance
reasonably satisfactory to the Agent;
(iv) an
Amendment and Consent in respect of the Working Capital Credit Agreement, duly
executed by the Loan Parties, the Working Capital Agent and the Working Capital
Lenders;
(v) a
certificate of an officer of each Loan Party, certifying that such Loan Party
has not amended or otherwise modified (A) its charter, certificate of formation
or other organizational document or (B) its by-laws, operating agreement or
other similar agreement, in each case since the Closing Date (or, if any such
organizational document has been amended or otherwise modified, attaching a
true, correct and complete copy of such amendment or modification);
(vi) a
certificate of an officer of each Loan Party, certifying as to the matters set
forth in subsection (a) of this Section 4;
(vii) a
certificate of an officer of the Parent, certifying that the conditions to
closing under the Rancho Sale Agreement have been satisfied or waived, and that
the Rancho Sale Leaseback has been consummated in accordance with the Rancho
Sale Agreement;
(viii) such
other agreements, instruments, approvals, opinions and other documents as the
Agent may reasonably request.
4
(a) The
execution, delivery and performance by the Borrowers or such Guarantor of this
Amendment and the performance by the Borrowers or such Guarantor of the Credit
Agreement, as amended hereby, have been duly authorized by all necessary action,
and the Borrowers or such Guarantor has all requisite power, authority and legal
right to execute, deliver and perform this Amendment and to perform its
obligations under the Credit Agreement, as amended hereby.
(b) This
Amendment and the Credit Agreement, as amended hereby, is a legal, valid and
binding obligation of the Borrowers or such Guarantor, enforceable against the
Borrowers or such Guarantor in accordance with the terms thereof, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors'
rights generally.
(c) The
representations and warranties contained in Section 4 of the Credit Agreement
are true and correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof) after
giving effect to this Amendment on and as of the Amendment No. 2 Effective Date
as though made on and as of the Amendment No. 2 Effective Date (except to the
extent such representations and warranties expressly relate to an earlier date),
and no Event of Default or Default has occurred and is continuing on and as of
the Amendment No. 2 Effective Date, or would result from this Amendment becoming
effective in accordance with its terms.
5
[Remainder
of this Page Intentionally Left Bank.]
6
|
BORROWERS:
|
XXXXX, INC.,
a
Delaware corporation
|
|
|
By:
|
/s/ | |
|
Title:
|
||
|
XXXXX
VISCOR LTD.,
a
Texas limited partnership
|
||
|
By:
|
Xxxxx
Partners, Inc.,
Its
General Partner
|
|
|
By:
|
/s/ | |
|
Title:
|
||
|
XXXXX SIGNTECH,
LTD.,
a
Texas limited partnership
|
||
|
By:
|
Xxxxx
Partners, Inc.,
Its
General Partner
|
|
|
By:
|
/s/ | |
|
Title:
|
||
|
KASCO
CORPORATION,
a
Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
SOUTHERN
SAW ACQUISITION CORPORATION,
a
Delaware corporation
|
||
|
By:
|
/s/ | |
|
Title:
|
||
|
PARENT:
|
BAIRNCO
CORPORATION,
a
Delaware corporation
|
|
|
By:
|
/s/ | |
|
Title:
|
||
|
AGENT
AND LENDERS:
|
ABLECO
FINANCE LLC,
a
Delaware limited liability company, as Agent and as a Lender, on behalf of
itself and its affiliate assigns
|
|
|
By:
|
/s/ | |
|
Title:
|
||
Exhibit
A