Exhibit 4.30
March 23, 2007
Bairnco Corporation
and the other Borrowers referred to below
000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxx 00000
ATTENTION: Chief Financial Officer
RE: WAIVER AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Ladies and Gentlemen:
We refer to that certain Loan and Security Agreement dated as of as of
November 9, 2006 (as at any time amended, restated, supplemented or otherwise
modified, the "Loan Agreement"), 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 and Canadian Borrower, collectively,
"Borrowers"), the financial institutions party thereto from time to time as
lenders (collectively, "Lenders"), and Bank of America, N.A., a national banking
association, individually as a Lender ("BofA") and as Issuing Bank and in its
capacity as agent for the Lenders (together with its successors in such
capacity, "Agent"). Each capitalized term used herein and not otherwise defined
herein shall have the meaning ascribed to such term in the Loan Agreement.
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
SECTION 10.2.4 of the Loan Agreement (the "Stipulated Default"). The Stipulated
Default exists because on January 19, 2007, Bairnco declared a quarterly cash
dividend of $0.10 per share payable on March 30, 2007, to the stockholders of
Bairnco of record on the close of business on March 5, 2007 (the "Dividend"),
which Dividend is not an Upstream Payment and has not satisfied the Distribution
Conditions.
Borrowers have requested that Agent and Lenders waive the Stipulated
Default 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. As of the date hereof, BofA is the sole Lender.
NOW, THEREFORE, for the sum of TEN DOLLARS ($10.00) in hand paid and in
consideration of the premises herein contained and for 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:
Bairnco Corporation and the other Borrowers
March 23, 2007
Page 2
1. WAIVER OF STIPULATED DEFAULT. In reliance upon the acknowledgements,
representations, warranties and agreements of Borrowers set forth herein, 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.
2. AMENDMENTS TO LOAN AGREEMENT. Borrowers, Agent and the sole Lender
hereby agree that the Loan Agreement shall be amended as follows:
(a) by deleting from SECTION 1.1 the definition of "Change of
Control" in its entirety and by substituting in lieu thereof the
following:
CHANGE OF CONTROL - (a) Bairnco ceases to own and control,
beneficially and of record, directly or indirectly, all Equity
Interests in all other Borrowers; (b) a change in the majority of
directors of Bairnco, unless approved by the then majority of
directors; (c) all or substantially all of a Borrower's assets are
sold or transferred, other than sale or transfer to another
Borrower; or (d) any Person or related group of Persons acquires by
way of a purchase, merger, consolidation or other business
combination 66 2/3 % of the Equity Interests entitled to vote in the
election of directors of a Borrower (EXCEPT THAT the acquisition by
Steel Partners II, L.P., a Delaware limited partnership ("Steel
Partners"), or any of its affiliates of all or substantially all of
the Equity Interests entitled to vote in the election of directors
of Bairnco, or the appointment of directors designated by Steel
Partners or any of its affiliates to the board of directors of
Bairnco, shall not constitute a "Change of Control" hereunder).
(b) by adding to SECTION 1.1, in proper alphabetical sequence, the
following new definitions of "Permitted Dividend," "Permitted Merger" and
"Permitted Option Settlement":
PERMITTED DIVIDEND - the "Dividend" as defined in that certain
Waiver and First Amendment to Loan and Security Agreement dated
March 23, 2007, by and among Agent, the sole Lender, and Borrowers.
PERMITTED MERGER - the merger 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"), which merger shall have satisfied each of
the following conditions: (a) a copy of the certificate of merger
effecting the merger shall have been delivered to and reviewed by
Agent and shall be satisfactory to Agent in all respects; (b) to the
extent that the Organic Documents of BZ shall become the Organic
Documents of the surviving entity at the effective time of the
merger, copies of such Organic Documents shall have been delivered
to and reviewed by Agent and shall be satisfactory to Agent in all
respects; and (c) no Lien on any Property of any Borrower, other
than Permitted Liens, shall exist as a result of the merger.
Bairnco Corporation and the other Borrowers
March 23, 2007
Page 3
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 be consummated on
the terms contemplated by the BZ Merger Agreement (or other terms
satisfactory to Agent in all respects).
(c) by deleting SECTION 10.2.4 in its entirety and by substituting
in lieu thereof the following:
10.2.4. DISTRIBUTIONS. Declare or make any Distributions,
except (i) Upstream Payments; and (ii) subject to the satisfaction
of the Distribution Conditions, additional Distributions (EXCEPT
THAT Bairnco shall be permitted to (A) make the Permitted Dividend,
and (B) consummate the Permitted Option Settlement).
(d) by deleting SECTION 10.2.10 in its entirety and by substituting
in lieu thereof the following:
10.2.10. FUNDAMENTAL CHANGES. Merge, combine or consolidate
with any Person, or liquidate, wind up its affairs or dissolve
itself, in each case whether in a single transaction or in a series
of related transactions, except for the Permitted Merger and mergers
or consolidations of a wholly-owned Subsidiary with another
wholly-owned Subsidiary or into a Borrower; change its name or
conduct business under any fictitious name; change its tax, charter
or other organizational identification number; or change its form or
state of organization.
(e) by deleting SECTION 10.2.12 in its entirety and by substituting
in lieu thereof the following:
10.2.12. ORGANIC DOCUMENTS. Amend, modify or otherwise change
any of its Organic Documents as in effect on the Closing Date
(EXCEPT THAT Bairnco shall be permitted to change its Organic
Documents in accordance with the conditions of the Permitted
Merger).
3. ACKNOWLEDGEMENTS, REPRESENTATIONS, WARRANTIES AND AGREEMENTS. To induce
Agent and the sole Lender to enter into this agreement and grant the
accommodations set forth herein, Borrowers hereby: (A) acknowledge and stipulate
that the Loan Agreement and the other Loan Documents executed by Borrowers are
legal, valid and binding obligations of Borrowers that are enforceable against
Borrowers 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) waive any and all defenses, offsets and
counterclaims to the Obligations existing on the date hereof; (C) represent and
warrant that (i) other than the Stipulated Default, no Default or Event of
Default exists on the date hereof; and (ii) this letter has been duly executed
and delivered by Borrowers; and (D) agree that (i) except as otherwise expressly
provided herein, 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; (ii) 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 and each of the other Loan Documents on and after the date
hereof; and (iii) nothing contained herein is intended to be, nor shall be
construed to create, a novation or an accord and satisfaction.
Bairnco Corporation and the other Borrowers
March 23, 2007
Page 4
4. RELEASE OF CLAIMS. TO INDUCE AGENT AND THE SOLE LENDER TO ENTER INTO
THIS AGREEMENT AND GRANT THE ACCOMMODATIONS SET FORTH HEREIN, BORROWERS HEREBY
RELEASE, ACQUIT AND FOREVER DISCHARGE 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 ANY
BORROWER NOW HAS OR HAS 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.
BORROWERS REPRESENT AND WARRANT TO AGENT AND THE SOLE LENDER THAT NO BORROWER
HAS TRANSFERRED OR ASSIGNED TO ANY PERSON ANY CLAIM THAT SUCH BORROWER EVER HAD
OR CLAIMED TO HAVE AGAINST AGENT OR THE SOLE LENDER.
5. MISCELLANEOUS. This letter shall be governed by and construed in
accordance with the internal laws of the State of Georgia and shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This letter 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 letter by telefacsimile or electronic mail
transmission shall be equally as effective as delivery of an original executed
counterpart of this letter, and any party delivering a manually executed
counterpart of this letter by telefacsimile or electronic mail transmission
shall also deliver an original executed counterpart of this letter, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this letter. This letter shall
be effective only upon receipt by Agent of a counterpart from each Borrower.
If this letter is acceptable to Borrowers, please evidence Borrowers'
agreement with the terms hereof by executing and returning a copy of this letter
to Agent. By their signatures below, Borrowers agree that Agent's and the sole
Lender's waiver and agreement to amend as set forth herein will not be effective
until each condition to such waiver and agreement to amend has been fully
satisfied.
Very truly yours,
BANK OF AMERICA, N.A.,
as Agent and sole Lender
By: /s/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Bairnco Corporation and the other Borrowers
March 23, 2007
Page 5
ACKNOWLEDGED AND AGREED:
BORROWERS:
BAIRNCO CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
KASCO CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXXXX & XXXX GMBH
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Agent of the Company
ATLANTIC SERVICE CO. LTD
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
ATLANTIC SERVICE CO. (UK) LTD.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Agent of the Company
EUROKASCO, S.A.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Agent of the Company
