UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: February 24, 2000
BAIRNCO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-8120 13-3057520
(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
300 Primera Boulevard, Suite 432, Lake Mary, FL 32746
(Address of principal executive offices) (Zip Code)
(407) 875-2222
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former
fiscal year, if changed since last report)
ITEM 2. ACQUISITION OF ASSETS
On February 15, 2000, Bairnco Corporation ("Bairnco"), through a
wholly-owned subsidiary, acquired the assets of the materials
business ("Signtech") of Signtech USA, Ltd. located in San
Antonio, Texas, for approximately $14.5 million (subject to a
purchase price adjustment). This acquisition has been accounted
for under the purchase method of accounting. The purchase
price will be allocated to the assets acquired based on their
estimated fair values with the balance being recorded as goodwill.
The acquisition was financed through available borrowings under
Bairnco's line of credit.
Signtech manufactures and distributes flexible reinforced vinyl
materials used as the substrate in flexible faced sign systems.
Signtech's products are sold primarily on a specification basis
for corporate specified programs using various striping, heat
transfer and screen print applications.
ITEM 5. OTHER EVENTS
On February 15, 2000 Bairnco's secured, reducing revolving credit
agreement (the "Credit Agreement") was amended. The amendment
effectively increased the credit facility from $50 million at
December 31, 1999 to $75 million, including a five-year term loan
credit facility of $20 million subject to quarterly amortization
of principal of $500,000 in 2000, $750,000 in 2001, $1,000,000 in
2002, $1,250,000 in 2003 and $1,500,000 in 2004. The amended
credit facility also includes a letter of credit facility for $9
million which may be increased up to $15 million or decreased to
$5 million with a corresponding change in the loan commitment
under the revolving credit facility. The amendment extended the
expiration date of the Credit Agreement from December 31, 2003 to
February 22, 2005 although the term loan expires on December 31,
2004.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are incorporated by reference herein:
1 Press Release
2 The Second Amended and Restated Credit Agreement dated as of
February 22, 2000, among Bairnco Corporation and certain of its
subsidiaries, as guarantors, and certain Commercial Lending Institutions
and Bank of America, N.A., as the Agent for Lenders.
3 Exhibits to Second Amended and Restated Credit Agreement
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
BAIRNCO CORPORATION
By: /s/ James W. Lambert
James W. Lambert
Vice President Finance & Treasurer
Date: February 24, 2000
EXHIBIT INDEX
Exhibit Description
1 Press Release
2 The Second Amended and Restated Credit Agreement dated as of
February 22, 2000, among Bairnco Corporation and certain of
its subsidiaries, as guarantors, and certain Commercial
Lending Institutions and Bank of America, N.A., as the Agent
for Lenders.
3 Exhibits to Second Amended and Restated Credit Agreement
BAIRNCO CORPORATION
300 PRIMERA BOULEVARD, SUITE 432
LAKE MARY, FLORIDA 32746
(407) 875-2222
PRESS RELEASE
BAIRNCO ANNOUNCES ACQUISITION OF MATERIALS BUSINESS OF
SIGNTECH USA, LTD. AND AMENDMENT TO INCREASE CREDIT
AGREEMENT TO $75 MILLION
February 15, 2000 - Bairnco Corporation (NYSE - BZ) today
reported it purchased the assets of the materials business
("Signtech") of Signtech USA, Ltd. for approximately $14.5
million. Signtech's sales for the year ended December 31,
1999 were approximately $16.0 million.
Signtech, located in San Antonio, Texas, manufactures and
distributes flexible reinforced vinyl materials used as the
substrate in flexible faced sign systems. Signtech's
products are sold primarily on a specification basis for
corporate specified programs using various striping, heat
transfer and screen print applications. Signtech has a
strong presence in international markets.
The acquisition will complement Arlon's graphic films and
industrial products with product line extensions, additional
brand recognition, product development synergies, and
penetration into new customer segments and markets. The
acquisition will also expand Arlon's coating and converting
capacity.
Bairnco also reported today that its secured, reducing
revolving credit agreement was amended. The amendment
effectively extended the expiration date from December 31,
2003 to February 15, 2005, and increased the credit facility
from $50 million at December 31, 1999 to $75 million,
including a five-year term loan of $20 million which is
subject to quarterly amortization of principal.
Bairnco Corporation is a diversified multinational company
that operates two distinct businesses under the names Arlon
(Engineered Materials and Components segment) and Kasco
(Replacement Products and Services segment). Arlon's
principal products include high technology materials for the
printed circuit board industry, cast and calendered vinyl
film systems, custom-engineered laminates, and special
silicone rubber compounds and components. Kasco's principal
products include replacement band saw blades for cutting
meat, fish, wood and metal, on site maintenance services and
seasonings for ready-to-cook foods for the retail food
industry primarily in the meat and deli departments. Kasco
also distributes equipment to the food industry in Canada
and France.
CONTACT: James W. Lambert, Bairnco Corporation
Telephone: (407) 875-2222, ext. 227
*******************
U.S. $75,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of February 22, 2000,
among
BAIRNCO CORPORATION
and
certain of its Subsidiaries,
as the Borrowers,
its U.S. Subsidiaries,
as Guarantors,
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
BANK OF AMERICA, N.A.,
as the Agent for the Lenders
and
SUNTRUST BANK,
as Syndication Agent.
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS 2
SECTION 1.1 Defined Terms. 2
SECTION 1.2 Use of Defined Terms. 24
SECTION 1.3 Cross-References. 24
SECTION 1.4 Accounting and Financial Determinations. 25
SECTION 1.5 Materiality. 25
ARTICLE 2 COMMITMENTS, BORROWING PROCEDURES AND NOTES 25
SECTION 2.1 Commitments. 25
2.1.1 Bairnco Loan Commitment. 25
2.1.2 Arlon Loan Commitment 25
2.1.3 Kasco Dollar Loan Commitment. 25
2.1.4 Foreign Dollar Loan Commitment. 26
2.1.5 English Sub Loan Commitment. 26
2.1.6 French Sub Loan Commitment. 26
2.1.7 German Sub Loan Commitment. 26
2.1.8 Term Loan Commitment. 26
2.1.9 Limits on Dollar Loans. 27
2.1.10 Limit on Foreign Loans. 27
2.1.11 Limit on Revolving Loans. 27
2.1.12 Redenomination in Euro. 28
SECTION 2.2 Reduction of Commitment Amounts. 28
2.2.1 Optional. 28
2.2.2 [Intentionally Omitted]. 28
2.2.3 Mandatory. 28
2.2.4 Transfer of Commitment Amounts. 28
SECTION 2.3 Borrowing Procedure. 29
SECTION 2.4 Continuation and Conversion Elections. 30
SECTION 2.5 Funding. 31
SECTION 2.6 Notes. 32
SECTION 2.7 Bairnco LC Commitment. 32
SECTION 2.8 Letter of Credit Procedures. 33
SECTION 2.9 Certain Provisions Relating to the Letters
of Credit. 33
2.9.1 Letters of Credit Participations; Drawings
and Reimbursements. 33
2.9.2 Repayment of Participations. 35
2.9.3 Uniform Customs and Practice. 35
2.9.4 Cash Collateral. 35
2.9.5 Letter of Credit Notes. 35
ARTICLE 3 REPAYMENTS, PREPAYMENTS, INTEREST AND FEES 36
SECTION 3.1 Repayments and Prepayments. 36
3.1.1 Optional Prepayments. 36
3.1.2 Scheduled Payments of Term Loans. 36
3.1.3 Mandatory Prepayments and Mandatory
Reductions of Commitments 37
3.1.4 Application of Prepayments and Reductions
of Commitments. 38
SECTION 3.2 Interest Provisions. 39
3.2.1 Dollar Loan Interest Rates. 39
3.2.2 Foreign Loan Interest Rates. 40
3.2.3 Post-Maturity Rates. 40
3.2.4 Payment Dates. 40
SECTION 3.3 Fees. 41
3.3.1 Commitment Fee. 41
3.3.2 Letter of Credit Fees. 42
3.3.3 Agent's Fee. 43
ARTICLE 4 CERTAIN EUROCURRENCY RATE AND OTHER PROVISIONS 43
SECTION 4.1 Eurocurrency Rate Lending Unlawful. 43
SECTION 4.2 Deposits Unavailable. 43
SECTION 4.3 Increased Eurocurrency Rate Loan Costs,etc. 44
SECTION 4.4 Funding Losses. 44
SECTION 4.5 Increased Capital Costs. 44
SECTION 4.6 Taxes. 45
SECTION 4.7 Payments, Computations, etc. 46
SECTION 4.8 Sharing of Payments. 46
SECTION 4.9 Setoff. 47
SECTION 4.10 Use of Proceeds. 47
ARTICLE 5 CONDITIONS TO BORROWING 47
SECTION 5.1 Initial Borrowing and Reallocation of
Percentages. 47
5.1.1 Resolutions, etc. 48
5.1.2 Delivery of Other Loan Documents. 48
5.1.3 Opinion of Counsel. 49
5.1.4 Closing Fees, Expenses, etc. 49
5.1.5 Year 2000 Readiness. 49
SECTION 5.2 All Borrowings. 49
5.2.1 Compliance with Warranties, No Default, etc. 49
5.2.2 Borrowing Request. 50
5.2.3 Satisfactory Legal Form. 50
ARTICLE 6 REPRESENTATIONS AND WARRANTIES 50
SECTION 6.1 Organization, etc. 50
SECTION 6.2 Due Authorization, Non-Contravention, etc. 51
SECTION 6.3 Government Approval, Regulation, etc. 51
SECTION 6.4 Validity, etc. 51
SECTION 6.5 Financial Information. 51
SECTION 6.6 No Material Adverse Change. 52
SECTION 6.7 Litigation, Labor Controversies, etc. 52
SECTION 6.8 Subsidiaries. 52
SECTION 6.9 Ownership of Properties. 52
SECTION 6.10 Taxes. 52
SECTION 6.11 Pension and Welfare Plans. 52
SECTION 6.12 Environmental Warranties. 53
SECTION 6.13 Regulations U and X. 54
SECTION 6.14 Accuracy of Information. 54
SECTION 6.15 No Lender Liability Claims. 55
SECTION 6.16 Reaffirmation of Representations, etc. 55
SECTION 6.17 Year 2000 Problems. 55
ARTICLE 7 COVENANTS 55
SECTION 7.1 Affirmative Covenants. 55
7.1.1 Financial Information, Reports, Notices,etc. 55
7.1.2 Compliance with Laws, etc. 57
7.1.3 Maintenance of Properties. 57
7.1.4 Insurance. 57
7.1.5 Books and Records. 58
7.1.6 Environmental Matters. 58
7.1.7 Year 2000 Compliance. 58
SECTION 7.2 Negative Covenants. 59
7.2.1 Indebtedness. 59
7.2.2 Liens. 60
7.2.3 Financial Condition. 61
7.2.4 Investments. 62
7.2.5 [INTENTIONALLY OMITTED] 63
7.2.6 Rental Obligations. 63
7.2.7 Take or Pay Contracts. 63
7.2.8 Consolidation, Merger, etc. 63
7.2.9 Asset Dispositions, etc. 64
7.2.10 Transactions with Affiliates. 65
7.2.11 Negative Pledges, Restrictive Agreements,etc.65
ARTICLE 8 EVENTS OF DEFAULT 66
SECTION 8.1 Listing of Events of Default. 66
8.1.1 Non-Payment of Obligations. 66
8.1.2 Breach of Warranty. 66
8.1.3 Non-Performance of Certain Covenants and
Obligations. 66
8.1.4 Non-Performance of Other Covenants and
Obligations. 66
8.1.5 Default on Other Indebtedness. 66
8.1.6 Judgments. 67
8.1.7 Pension Plans. 67
8.1.8 Bankruptcy, Insolvency, etc. 67
8.1.9 Impairment of Security, etc. 68
8.1.10 Change of Control. 68
SECTION 8.2 Action if Bankruptcy. 68
SECTION 8.3 Action if Other Event of Default. 68
ARTICLE 9 THE AGENT 69
SECTION 9.1 Actions. 69
SECTION 9.2 Funding Reliance, etc. 69
SECTION 9.3 Exculpation. 70
SECTION 9.4 Successor. 70
SECTION 9.5 Loans by Bank of America. 70
SECTION 9.6 Credit Decisions. 70
SECTION 9.7 Copies, etc. 71
SECTION 9.8 Letter of Credit Issuer. 71
SECTION 9.9 Syndication Agent. 71
ARTICLE 10 MISCELLANEOUS PROVISIONS 71
SECTION 10.1 Waivers, Amendments, Collateral Releases,
etc. 71
SECTION 10.2 Notices. 72
SECTION 10.3 Payment of Costs and Expenses. 73
SECTION 10.4 Indemnification. 73
SECTION 10.5 Survival. 74
SECTION 10.6 Severability. 74
SECTION 10.7 Headings. 75
SECTION 10.8 Execution in Counterparts, Effectiveness
etc. 75
SECTION 10.9 Governing Law; Entire Agreement. 75
SECTION 10.10 Successors and Assigns. 75
SECTION 10.11 Assignments; Participations. 75
10.11.1 Assignments. 75
10.11.2 Participations. 77
SECTION 10.12 Other Transactions. 77
SECTION 10.13 Consent to Jurisdiction and Service
of Process. 77
SECTION 10.14 Waiver of Jury Trial. 78
SECTION 10.15 Reaffirmation and Modification of
Original Loan Documents. 79
SECTION 10.16 Situs of Documents. 79
SECTION 10.17 Modifications with respect to the Euro. 79
SCHEDULES
Schedule I - Disclosure Schedule
Schedule II - Existing Intercompany Notes
Schedule III - Existing Letters of Credit
EXHIBITS
Exhibit A - Form of Dollar Note
Exhibit B - Form of Foreign Note
Exhibit C - Form of Letter of Credit Note
Exhibit D - Form of Borrowing Request
Exhibit E - Form of Continuation/Conversion Notice
Exhibit F - Form of Opinion of Counsel to Obligors
Exhibit G - Form of Compliance Certificate
Exhibit H - Form of Assignment and Acceptance
Exhibit I - Form of Amended and Restated Guaranty
Exhibit J - Form of Amended and Restated Pledge Agreement
Exhibit K - Form of Amended and Restated Security Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement"), dated as of February 22, 2000, among BAIRNCO
CORPORATION, a Delaware corporation and successor by merger to
the corporation of the same name that was a New York corporation
("Bairnco"), ARLON, INC. , a Delaware corporation and wholly-
owned subsidiary of Bairnco ("Arlon"), KASCO CORPORATION, a
Delaware corporation and wholly-owned subsidiary of Bairnco
("Kasco"), ATLANTIC SERVICE CO. (U.K.) LTD., an English company
and subsidiary of Kasco ("English Sub"), BERTRAM & GRAF GmbH, a
Gesellschaft mit beschrankter Haftung organized under the laws of
the Federal Republic of Germany and subsidiary of Kasco ("German
Sub") and EUROKASCO S.A., a societe anonyme organized under the
laws of France and subsidiary of Kasco ("French Sub" and together
with Bairnco, Arlon, Kasco, the English Sub and German Sub,
individually, a "Borrower", and collectively, the "Borrowers")
BANK OF AMERICA, N.A. (the successor by merger to Bank of America
Illinois, formerly known as Continental Bank N.A.), both
individually (in such capacity, "Bank of America") and as agent
(in such capacity, the "Agent") for the Lenders (as hereinafter
defined), SUNTRUST BANK, both individually (in such capacity,
"SunTrust") and as syndication agent (in such capacity, the
"Syndication Agent") and the various other financial institutions
as are or may become parties hereto, including, as of the date
hereof, FIRST UNION NATIONAL BANK, N.A., and ALLFIRST BANK (Bank
of America and SunTrust, together with such other financial
institutions, collectively, the "Lenders")
W I T N E S S E T H:
WHEREAS, capitalized terms used in this Agreement and not
otherwise defined shall have the meanings specified in Section 1
hereof; and
WHEREAS, the Borrowers and Continental Bank, N.A., a
predecessor by merger of Bank of America, entered into the
Original Agreement and the Original Loan Documents as of
September 27, 1990 for the purpose of establishing financial
facilities for the Borrowers in the aggregate amount of
$70,000,000, and the Original Agreement was amended and restated
as of December 17, 1992 (the "1992 Agreement");
WHEREAS, the parties hereto have agreed to amend and restate
the 1992 Agreement, as amended and in effect on the date hereof,
to (i) provide for a five-year term loan facility for Arlon, and
(ii) make certain other changes as more fully set forth herein,
which amendment and restatement shall become effective upon the
satisfaction of the conditions precedent set forth in
Section 5.1;
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligations and
liabilities of the parties under the Original Agreement or be
deemed to evidence or constitute repayment of all or any portion
of such obligations and liabilities and that this Agreement amend
and restate in its entirety the Original Agreement and re-
evidence the Obligations of the Borrowers outstanding thereunder;
and
WHEREAS, it is the intent of Loan Parties to confirm that
all Obligations of Loan Parties under the other Loan Documents
shall continue in full force and effect and that, from and after
the Effective Date, all references to the "Credit Agreement"
contained therein shall be deemed to refer to this Agreement:
WHEREAS, in order to evidence the agreement of the parties,
the parties desire to execute and deliver this Agreement, which
shall supersede in all respects the 1992 Agreement and all prior
amendments thereto and shall amend in the manner provided for
herein (but otherwise shall leave in full force and effect) the
Original Loan Documents.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Defined Terms. The following terms when used in
this Agreement, including its preamble and recitals, shall,
except where the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
"Affiliate" of any Person shall mean any other Person
which, directly or indirectly, controls, is controlled by or
is under common control with such Person (excluding any
trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person
possesses, directly or indirectly, power
(a)to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors
or managing general partners; or
(b)to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as
the successor Agent pursuant to Section 9.4.
"Agreement" shall mean, on any date, this Amended and
Restated Credit Agreement as originally in effect on the
Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified
and in effect on such date.
"Alternate Reference Rate" shall mean, on any date and
with respect to all Reference Rate Loans, a fluctuating rate
of interest per annum equal to the higher of:
(a)the rate of interest most recently announced by Bank of
America at its Domestic Office as its reference rate for Dollar
Loans; or
(b)the Federal Funds Rate most recently determined by the Agent
plus 0.50%.
The Alternate Reference Rate is not necessarily intended to
be the lowest rate of interest determined by Bank of America
in connection with extensions of credit. Changes in the
rate of interest on that portion of any Loans will take
effect simultaneously with each change in the Alternate
Reference Rate. The Agent will give notice promptly to the
Borrowers and the Lenders of changes in the Alternate
Reference Rate.
"Applicable Eurocurrency Rate Margin" shall mean:
(a)0.750% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was less than or equal to 35%, and (ii) ending on the
earlier of (A) the fifth day following delivery by Bairnco to the
Agent of the Compliance Certificate for the next Fiscal Quarter,
or (B) the date on which Bairnco fails to deliver to the Agent
such Compliance Certificate for the next Fiscal Quarter as
required under Section 7.1.1(c);
(b)1.125% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 35% but less than or equal to 45%, and
(ii) ending on the earlier of (A) the fifth day following
delivery by Bairnco to the Agent of the Compliance Certificate
for the next Fiscal Quarter, or (B) the date on which Bairnco
fails to deliver to the Agent such Compliance Certificate for the
next Fiscal Quarter as required under Section 7.1.1(c);
(c)1.500% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 45% but less than or equal to 55%, and
(ii) ending on the earlier of (A) the fifth day following
delivery by Bairnco to the Agent of the Compliance Certificate
for the next Fiscal Quarter, or (B) the date on which Bairnco
fails to deliver to the Agent such Compliance Certificate for the
next Fiscal Quarter as required under Section 7.1.1(c);
(d)1.750% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 55%, and (ii) ending on the earlier of
(A) the fifth day following delivery by Bairnco to the Agent of
the Compliance Certificate for the next Fiscal Quarter, or (B)
the date on which Bairnco fails to deliver to the Agent such
Compliance Certificate for the next Fiscal Quarter as required
under Section 7.1.1(c); and
(e)if Bairnco fails to deliver the Compliance Certificate for
any Fiscal Quarter by the fifth day after the date when such
delivery is required under Section 7.1.1(c), the Applicable
Eurocurrency Rate Margin from the date such Compliance
Certificate was due to but excluding the fifth day after the date
such Compliance Certificate is received shall be 1.750% and,
thereafter, the pricing level determined in accordance with the
Debt-to-Capital Ratio set forth in such Compliance Certificate;
provided, that, notwithstanding the foregoing, the
Applicable Eurocurrency Rate Margin shall be 1.500% for the
period commencing on the Effective Date and ending on the
earlier of (A) the date that is 180 days thereafter, (B) the
date that is 60 days thereafter, if the Borrowers have
neither consummated the Signtech Acquisition nor entered
into a definitive agreement with respect thereto by such
date, or (C) the date on which Bairnco determines and
notifies the Agent in writing that the Signtech Acquisition
will not be consummated; provided, further that if the
Signtech Acquisition is consummated within 180 days of the
Effective Date notwithstanding the occurrence of the events
described in (B) or (C), then the Applicable Eurocurrency
Rate shall be 1.500% until the date that is 180 days after
the Effective Date and the Borrowers shall immediately pay
the Lenders any additional interest they would have been
required to pay but for the occurrence of such events.
"Applicable Reference Rate Margin" shall mean:
(a)0.000% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was less than or equal to 35%, and (ii) ending on the
earlier of (A) the fifth day following delivery by Bairnco to the
Agent of the Compliance Certificate for the next Fiscal Quarter,
or (B) the date on which Bairnco fails to deliver to the Agent
such Compliance Certificate for the next Fiscal Quarter as
required under Section 7.1.1(c);
(b)0.250% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 35% but less than or equal to 45%, and
(ii) ending on the earlier of (A) the fifth day following
delivery by Bairnco to the Agent of the Compliance Certificate
for the next Fiscal Quarter, or (B) the date on which Bairnco
fails to deliver to the Agent such Compliance Certificate for the
next Fiscal Quarter as required under Section 7.1.1(c);
(c)0.625% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 45% but less than or equal to 55%, and
(ii) ending on the earlier of (A) the fifth day following
delivery by Bairnco to the Agent of the Compliance Certificate
for the next Fiscal Quarter, or (B) the date on which Bairnco
fails to deliver to the Agent such Compliance Certificate for the
next Fiscal Quarter as required under Section 7.1.1(c);
(d)0.875% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 55%, and (ii) ending on the earlier of
(A) the fifth day following delivery by Bairnco to the Agent of
the Compliance Certificate for the next Fiscal Quarter, or (B)
the date on which Bairnco fails to deliver to the Agent such
Compliance Certificate for the next Fiscal Quarter as required
under Section 7.1.1(c); and
(e)if Bairnco fails to deliver the Compliance Certificate for
any Fiscal Quarter by the fifth day after the date when such
delivery is required under Section 7.1.1(c), the Applicable
Reference Rate Margin from the date such Compliance Certificate
was due to but excluding the fifth day after the date such
Compliance Certificate is received shall be 0.875% and,
thereafter, the pricing level determined in accordance with the
Debt-to-Capital Ratio set forth in such Compliance Certificate;
provided, that, notwithstanding the foregoing, the
Applicable Reference Rate Margin shall be 0.625% for the
period commencing on the Effective Date and ending on the
earlier of (A) the date that is 180 days thereafter, (B) the
date that is 60 days thereafter, if the Borrowers have
neither consummated the Signtech Acquisition nor entered
into a definitive agreement with respect thereto by such
date, or (C) the date on which Bairnco determines and
notifies the Agent in writing that the Signtech Acquisition
will not be consummated; provided, further that if the
Signtech Acquisition is consummated within 180 days of the
Effective Date notwithstanding the occurrence of the events
described in (B) or (C), then the Applicable Reference Rate
shall be 0.625% until the date that is 180 days after the
Effective Date and the Borrowers shall immediately pay the
Lenders any additional interest they would have been
required to pay but for the occurrence of such events.
"Arlon" is defined in the preamble.
"Arlon Loan Commitment Amount" shall mean, on any date,
$20,000,000, as such amount may be reduced or increased from
time to time pursuant to Section 2.2.
"Arlon Loan Commitment" shall mean, relative to any
Lender, such Lender's obligation to make Revolving Loans to
Arlon pursuant to Section 2.1.2.
"Arlon Loans" is defined in Section 2.1.2.
"Arlon Note" shall mean a promissory note of Arlon
payable to any Lender, in the form of Exhibit A hereto (as
such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to such Lender resulting from
outstanding Revolving Loans, and also shall mean all other
promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Authorized Officer" shall mean, relative to any
obligor, those of its officers whose signatures and
incumbency shall have been certified to the Agent and the
Lenders pursuant to Section 5.1.1.
"Bank of America" is defined in the preamble.
"Bairnco" is defined in the preamble.
"Bairnco LC Commitment" shall mean, relative to any
Lender, such Lender's obligation to issue or participate in
Letters of Credit for the account of Bairnco pursuant to
Section 2.7.
"Bairnco LC Commitment Amount" shall mean, on any date,
$9,000,000, as such amount may be increased or reduced from
time to time pursuant to Section 2.2.
"Bairnco Loan Commitment" shall mean, relative to any
Lender, such Lender's obligation to make Loans to Bairnco
pursuant to Section 2.1.1.
"Bairnco Loan Commitment Amount" shall mean, on any
date, $11,000,000, exclusive of Foreign Dollar Loans, as
such amount may be reduced or increased pursuant to
Section 2.2.
"Bairnco Loans" is defined in Section 2.1.1.
"Bairnco Note" shall mean a promissory note of Bairnco
payable to any Lender, in the form of Exhibit A hereto (as
such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to such Lender resulting from
outstanding Bairnco Loans, and also shall mean all other
promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Borrower" and "Borrowers" are defined in the preamble.
"Borrowing" shall mean the Loans of the same type to
the same Borrower and, in the case of Interbank Rate Loans,
having the same Interest Period made by all Lenders on the
same Business Day and pursuant to the same Borrowing Request
in accordance with Section 2.1.
"Borrowing Request" shall mean either (a) a loan
request and certificate duly executed by an Authorized
Officer of the requesting Borrower substantially in the form
of Exhibit D hereto, or (b) an oral or telephonic request
made by an Authorized Officer of the requesting Borrower,
including substantially the information included in Exhibit
D hereto, and promptly thereafter (within 30 minutes by
facsimile transmission) confirmed in writing by submission
of a loan request and certificate duly executed by an
Authorized Officer of the requesting Borrower substantially
in the form of Exhibit D hereto, upon which, in the case of
either (a) or (b) above, the Agent and the Lenders shall be
entitled to rely.
"Business Day" shall mean
(a)any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in
New York, New York;
(b)relative to the making, continuing, prepaying or repaying of
any Eurocurrency Rate Loans, any day on which dealings in Dollars
are carried on in the applicable interbank market; and
(c)with respect to the Euro, any such day which is:
(i)for payments or purchases of the Euro, a TARGET Business Day;
and
(ii)for all purposes, including without limitation the giving
and receiving of notices hereunder, a TARGET Business Day on
which banks are generally open for business in London, Frankfurt
and in any other principal financial center as the Agent may from
time to time determine for this purpose.
"Capitalized Lease Liabilities" shall mean all monetary
obligations of the Borrowers or any of their Subsidiaries
under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other
Loan Document, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with
GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" shall mean, at any time:
(a)any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States
Government;
(b)commercial paper, maturing not more than three months from
the date of issue, which is issued by
(i)a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of
the District of Columbia and rated at least A-1 by Standard &
Poor's Rating Services or P-1 by Moody's Investors Service, Inc.,
or
(ii)any Lender (or its holding company);
(c)any certificate of deposit or bankers acceptance, maturing
not more than three months after such time, which is issued by
either
(i)a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii)any Lender (at any domestic or offshore location);
or
(d)any repurchase agreement entered into with any Lender (or
other commercial banking institution of the stature referred to
in clause (c)(i)) which
(i)is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through
(c); and
(ii)has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation
of such Lender (or other commercial banking institution)
thereunder.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
amended.
"CERCLIS" shall mean the Comprehensive Environmental
Response Compensation Liability Information System List.
"Change of Control" shall mean (i) that any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) (other than the current and former
directors and employees of Bairnco), (a) shall become, or
obtain rights (whether by means of warrants, options or
otherwise) to become, the "beneficial owner" (as defined in
Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly
or indirectly, of more than 30% of the outstanding common
stock of Bairnco, or (b) shall obtain the power (whether or
not exercised) to elect a majority of Bairnco's directors;
(ii) the board of directors of Bairnco shall cease to
consist of a majority of Continuing Directors; or (iii) any
"change of control" or similar term as defined in any
agreement governing any other Indebtedness of the Borrowers
and their Subsidiaries.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, reformed or otherwise modified from time to time.
"Commitment" shall mean, as the context may require, a
Lender's Bairnco Loan Commitment, Bairnco LC Commitment,
Arlon Loan Commitment, Kasco Dollar Loan Commitment, Foreign
Loan Commitment or Term Loan Commitment.
"Commitment Amount" shall mean, as the context may
require, either the Bairnco Loan Commitment Amount, Bairnco
LC Commitment Amount, the Arlon Loan Commitment Amount, the
Kasco Dollar Loan Commitment Amount, or the Foreign Loan
Commitment Amount.
"Commitment Termination Date" shall mean the earliest
of:
(a)February 22, 2005;
(b)the date on which the Commitment Amounts are terminated in
full or reduced to zero pursuant to Section 2.2; and
(c)the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or
(c), the Commitment shall terminate automatically and
without any further action.
"Commitment Termination Event" shall mean
(a)the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.8; or
(b)the occurrence and continuance of any other Event of Default
and either
(i)declaration of the Loans to be due and payable pursuant to
Section 8.3, or
(ii)the absence of such declaration, the giving of notice by the
Agent, acting at the direction of the Required Lenders, to the
Borrowers that the Commitments have been terminated.
"Compliance Certificate" shall have the meaning
specified in Section 7.1.1(c) hereof.
"Consolidated Funded Debt" shall mean the sum of the
amounts indicated for the items "Short-Term Debt", "Current
Maturities of Long-Term Debt" and "Long-Term Debt" in the
Quarterly Report on Form 10Q for the first three quarterly
periods or in the Annual Report on Form 10K of BAIRNCO and
its Subsidiaries for the fourth quarterly period.
"Contingent Liability" shall mean any agreement,
undertaking or arrangement by which any Person guarantees,
endorses or otherwise becomes or is contingently liable upon
(by direct or indirect agreement, contingent or otherwise,
to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a
creditor against loss) the indebtedness, obligation or any
other liability of any other Person (other than by
endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions
upon the shares of any other Person. The amount of any
Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to
be the outstanding principal amount (or maximum principal
amount, if larger) of the debt, obligation or other
liability guaranteed thereby.
"Continuation/Conversion Notice" shall mean either (a)
a notice of continuation or conversion and certificate duly
executed by an Authorized Officer of the related Borrower,
substantially in the form of Exhibit E hereto, or (b) an
oral or telephonic request made by an Authorized Officer of
the requesting Borrower, including substantially the
information included in Exhibit E hereto, and promptly
thereafter (within 30 minutes by facsimile transmission)
confirmed in writing by submission of a notice of
continuation or conversion and certificate duly executed by
an Authorized officer of the related Borrower substantially
in the form of Exhibit E hereto, upon which, in the case of
either (a) or (b) the Lenders shall be entitled to rely.
"Continuing Directors" shall mean the directors of
Bairnco on the Effective Date, and each other director whose
nomination for election to the board of directors of Bairnco
was recommended by at least two-thirds of the then
Continuing Directors.
"Controlled Group" shall mean all members of a
controlled group of corporations and all members of a
controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the
Borrowers, are treated as a single employer under Section
414(b) or 414(c) of the Code or Section 4001
"Cumulative Net Income" shall mean, at any date of
calculation, an amount (not less than zero) equal to (x) the
sum of the amounts of the net quarterly income and losses of
Bairnco and its Subsidiaries on a consolidated basis for the
period beginning after December 31, 1999 and ending on the
last day of the Fiscal Quarter immediately preceding the
Fiscal Quarter in which such date of calculation occurs.
"Debt to Capital Ratio" is defined in Section 7.2.3(b).
"Default" shall mean any Event of Default or any
condition, occurrence or event which, after notice or lapse
of time or both, would constitute an Event of Default.
"Disclosure Schedule" shall mean the Disclosure
Schedule attached hereto as Schedule I, as it may be
amended, supplemented or otherwise modified from time to
time by the Borrowers with the written consent of the Agent
and the Required Lenders.
"DM Loan" shall mean any Loan made in Deutsche Marks
under the Foreign Loan Commitment.
"DM Rate" shall mean, with respect to any DM Loan for
any Interest Period. the rate per annum equal to the rate at
which Deutsche Mark deposits in immediately available funds
are offered to the applicable Eurocurrency Office of Bank of
America three Business Days prior to the beginning of such
Interest Period by major banks in the interbank eurocurrency
market as at or about the relevant local time of such
Eurocurrency Office for delivery on the first day of such
Interest Period, for the number of days comprised therein
and in an amount equal or comparable to the amount of such
DM Loan from Bank of America for such Interest Period.
"Dollar" and the sign "$" mean lawful money of the
United States.
"Dollar Amount" shall mean, at any time for any foreign
currency amount, the amount of U.S. Dollars that Bank of
America, in accordance with its normal banking procedures,
could purchase at such time with such foreign currency
amount.
"Dollar Loan" shall mean, as the context may require, a
Bairnco Loan, an Arlon Loan, a Kasco Dollar Loan, or a
Foreign Dollar Loan.
"Domestic Office" shall mean, relative to any Lender,
the office of such Lender designated as such below its
signature hereto or such other office of a Lender (or any
successor or assign of such Lender) within the United States
as may be designated from time to time by notice from such
Lender, as the case may be, to each other Person party
hereto. A Lender may have separate Domestic Offices for
purposes of making, maintaining or continuing, as the case
may be, Reference Rate Loans.
"Effective Date" shall mean the date this Agreement
becomes effective pursuant to Section 10.8.
"Eligible Assignee" is defined in Section 10.11.
"EMU Legislation" means (a) the Treaty on European
Union (the Treaty of Rome of March 25, 1957, as amended by
the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on February 1, 1992 and came
into force on November 1, 1993)), and (b) legislative
measures of the European Council (including without
limitation European Council regulations) for the
introduction of, changeover to or operation of the Euro, in
each case as amended or supplemented from time to time.
"English Sub" is defined in the preamble.
"English Sub Loans" is defined in Section 2.1.5.
"English Sub Loan Commitment" is defined in Section
2.1.5.
"English Sub Note" shall mean a promissory note of
English Sub payable to Bank of America, in the form of
Exhibit B hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of such Borrower to
Bank of America resulting from outstanding Loans, and also
shall mean all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"Environmental Laws" shall mean all applicable federal,
state or local statutes, laws, ordinances, codes, rules,
regulations and guidelines (including consent decrees and
administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute
of similar import, together with the regulations thereunder,
in each case as in effect from time to time. References to
sections of ERISA also refer to any successor sections.
"Euro" means the single currency of Participating
Member States.
"Euro Loan" shall mean any Loan made in Euro under the
Foreign Loan Commitment.
"Euro Rate" shall mean, with respect to any Euro Loan
for any Interest Period, the rate per annum equal to the
rate at which Euro deposits in immediately available funds
are offered to the applicable Eurocurrency Office of Bank of
America three Business Days prior to the beginning of such
Interest Period by major banks in the interbank eurocurrency
market as at or about the relevant local time of such
Eurocurrency Office for delivery on the first day of such
Interest Period, for the number of days comprised therein
and in an amount equal or comparable to the amount of such
Euro Loan from Bank of America for such Interest Period.
"Eurocurrency Office" shall mean, relative to Bank of
America and any type of Eurocurrency Rate Loans, the office
of Bank of America designated as such below its signature
hereto or such other office of Bank of America as designated
from time to time by notice from Bank of America to the
Borrowers and the Agent, whether or not outside the United
States, which shall be making or maintaining such type of
Eurocurrency Rate Loans of Bank of America hereunder.
"Eurocurrency Rate" shall mean, as the context may
require, either the Interbank Rate, the Sterling Rate, the
Euro Rate, the FF Rate, or the DM Rate.
"Eurocurrency Rate Loan" shall mean a Loan bearing
interest, at all times during an Interest Period applicable
to such Loan, at a rate of interest determined by reference
to a Eurocurrency Rate.
"Euro Transition Cutoff Date" means December 31, 2001,
or such other date as may be established by EMU Legislation.
"Event of Default" is defined in Section 8.1.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, or any successor statute.
"Federal Funds Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day
during such period to
(a)the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York; or
(b)if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Bank of America from three federal funds
brokers of recognized standing selected by it.
"FF Loan" shall mean any Loan made in French Francs
under the Foreign Loan Commitment.
"FF Rate" shall mean, with respect to any FF Loan for
any Interest Period, the rate per annum equal to the rate at
which French Franc deposits in immediately available funds
are offered to the applicable Eurocurrency Office of Bank of
America three Business Days prior to the beginning of such
Interest Period by major banks in the interbank eurocurrency
market as at or about the relevant local time of such
Eurocurrency Office for delivery on the first day of such
Interest Period, for the number of days comprised therein
and in an amount equal or comparable to the amount of such
FF Loan from Bank of America for such Interest Period.
"Fiscal Quarter" shall mean any quarter of a Fiscal
Year.
"Fiscal Year" shall mean any period of twelve
consecutive calendar months ending on December 31;
references to a Fiscal Year with a number corresponding to
any calendar year (e.g. the "1999 Fiscal Year") refer to the
Fiscal Year ending on the December 31 occurring during such
calendar year.
"Foreign Collateral Documents" shall mean the English
share mortgage of Kasco, the Pledge Declaration of Kasco,
the acknowledgement of French Sub and the German share
pledge of Kasco, in each case in the form executed and
delivered at the time of the execution and delivery of the
Original Agreement, and as amended and in effect from time
to time.
"Foreign Dollar Loan" shall mean a borrowing by Bairnco
from Bank of America in Dollars pursuant to the Foreign Loan
Commitment for the purpose of financing the English Sub, the
French Sub or the German Sub.
"Foreign Dollar Loan Commitment" shall mean the
Commitment of Bank of America, as part of the Foreign Loan
Commitment, to make Foreign Dollar Loans to Bairnco for the
purpose of financing the English Sub, the French Sub or the
German Sub.
"Foreign Dollar Note" shall mean a promissory note of
Bairnco payable to Bank of America in the form of Exhibit B
hereto (as such promissory note may be amended endorsed or
otherwise modified from time to time), evidencing the
aggregate Indebtedness of such Borrower to such Lender
resulting from outstanding Loans under the Foreign Dollar
Loan Commitment, and shall also mean all other promissory
notes accepted from time to time in substitution therefor or
renewal thereof.
"Foreign Loan" shall mean, as the context may require,
a Sterling Loan, a Euro Loan, an FF Loan, a DM Loan or a
Foreign Dollar Loan.
"Foreign Loan Commitment" shall mean the obligation of
Bank of America to make Foreign Loans to Bairnco (only in
respect of Foreign Dollar Loans), the English Sub, the
French Sub or the German Sub.
"Foreign Loan Commitment Amount" shall mean, on any
date, $2,000,000, as such amount may be reduced from time to
time pursuant to Section 2.2.
"French Sub" is defined in the preamble.
"French Sub Loans" is defined in Section 2.1.6.
"French Sub Loan Commitment" is defined in Section
2.1.6.
"French Sub Note" shall mean a promissory note of
French Sub payable to Bank of America, in the form of
Exhibit B hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of such Borrower to
such Lender resulting from outstanding Loans, and also shall
mean all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
"F.R.S. Board" shall mean the Board of Governors of the
Federal Reserve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"German Sub" is defined in the preamble.
"German Sub Loans" is defined in Section 2.1.7.
"German Sub Loan Commitment" is defined in Section
2.1.7.
"German Sub Note" shall mean a promissory note of
German Sub payable to Bank of America, in the form of
Exhibit B hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of such Borrower to
such Lender resulting from outstanding Loans, and also shall
mean all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
"Guaranty" shall mean the Guaranty executed and
delivered pursuant to Section 5.1.4 of the Original
Agreement, as amended and restated as of the date hereof in
substantially the form of Exhibit I hereto, and as it may be
hereafter amended, supplemented, restated or otherwise
modified from time to time.
"Hazardous Material" shall mean
(a)any "hazardous substance", as defined by CERCLA;
(b)any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c)any petroleum product; or
(d)any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders
and any amendments thereof) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material.
"Hedging Obligations" shall mean, with respect to any
Person, all liabilities of such Person under interest rate
swap agreements, interest rate cap agreements and interest
rate collar agreements, and all other agreements or
arrangements designed to protect such Person against
fluctuations in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar
terms contained in this Agreement or any other Loan Document
refer to this Agreement or such other Loan Document, as the
case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan
Document.
"Honor Date" is defined in Section 2.9.1(a).
"Impermissible Qualification" shall mean, relative to
the opinion or certification of any independent public
accountant as to any financial statement of any Obligor, any
qualification or exception to such opinion or certification.
(a)which is of a "going concern" or similar nature:
(b)which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c)which relates to the treatment or classification of any item
in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of
which would be to cause such Obligor to be in default of any of
its obligations under Section 7.2.3.
"including" shall mean including without limiting the
generality of any description preceding such term, and, for
purposes of this Agreement and each other Loan Document, the
parties hereto agree that the rule of ejusdem generis shall
not be applicable to limit a general statement, which is
followed by or referable to an enumeration of specific
matters, to matters similar to the matters specifically
mentioned.
"Indebtedness" of any Person shall mean, without
duplication:
(a)all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments;
(b)all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c)all obligations of such Person as lessee under leases which
have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d)all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance
sheet of such Person as of the date at which Indebtedness is to
be determined;
(e)net liabilities of such Person under all Hedging Obligations;
(f)whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding
prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse; and
(g)all Contingent Liabilities of such Person in respect of any
of the foregoing.
For all purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a
joint venturer.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interbank Rate" shall mean, relative to any Interest
Period for Interbank Rate Loans, the rate of interest equal
to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar
deposits in immediately available funds are offered to Bank
of America's Interbank Offered Rate Office in the New York
interbank market as at or about 11:00 a.m. New York time two
Business Days prior to the beginning of such Interest Period
for delivery on the first day of such Interest Period, and
in an amount approximately equal to the amount of Bank of
America's Interbank Rate Loan and for a period approximately
equal to such Interest Period.
"Interbank Rate Loan" shall mean a Loan bearing
interest, at all times during an Interest Period applicable
to such Loan, at a rate of interest determined by reference
to the Interbank Rate.
"Interbank Offered Rate Office" shall mean, relative to
any Lender, the office of such Lender designated as such
below its signature hereto or such other office of a Lender
as designated from time to time by notice from such Lender
to the Borrowers and the Agent, whether or not outside the
United States, which shall be making or maintaining
Interbank Rate Loans of such Lender hereunder.
"Intercompany Note" shall mean a promissory note
evidencing Indebtedness owing by an Obligor or any
Subsidiary of any Obligor to an Obligor or any Subsidiary of
any Obligor, substantially in the form of Exhibit J to the
Original Agreement, and the notes listed on Schedule II to
this Agreement.
"Interest Coverage Ratio" is defined in Section 7.2.3.
"Interest Period" shall mean, relative to any
Eurocurrency Rate Loan comprising part of the same
Borrowing, the period beginning on (and including) the date
on which such Eurocurrency Rate Loan is made or continued
as, or converted into, a Eurocurrency Rate Loan pursuant to
Section 2.3 or 2.4 and shall end on (but exclude) the day
which numerically corresponds to such date one, two, three
or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of
such month) , in either case as the related Borrower may
select in its relevant notice pursuant to Section 2.3 or
2.4; provided, however, that
(a)the Borrowers shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration
dates occurring on more than ten different dates;
(b)Interest Periods commencing on the same date for Loans
comprising part of the same borrowing shall be of the same
duration;
(c)if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day
is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such
numerically corresponding day);
(d)no Interest Period may end later than the date set forth in
clause (a) of the definition of Commitment Termination Date; and
(e)no Interest Period with respect to any Term Loan shall extend
beyond a date on which Arlon is required to make a scheduled
payment of principal thereon pursuant to Section 3.1.2 unless the
sum of the aggregate principal amount of (a) Term Loans that are
Reference Rate Loans plus (b) the aggregate principal amount of
Term Loans that are Interbank Rate Loans with Interest Periods
expiring on or before such date equals or exceeds the principal
amount required to be paid on the Term Loans on such date.
"Investment" shall mean, relative to any Person,
(a)any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business);
(b)any Contingent Liability of such Person; and
(c)any ownership or similar interest held by such Person in any
other Person.
The amount of any Investment shall be the original principal
or capital amount thereof less all returns of principal or
equity thereon (and without adjustment by reason of the
financial condition of such other Person) and shall, if made
by the transfer or exchange of property other than cash, be
deemed to have been made in an original principal or capital
amount equal to the fair market value of such property.
"Item" is defined in Section 2.9.1.
"Kasco" is defined in the preamble.
"Kasco Dollar Loan Commitment" shall mean, relative to
any Lender such Lender's obligation to make Dollar Loans to
Kasco pursuant to Section 2.1.3.
"Kasco Dollar Loan Commitment Amount" shall mean, on
any date, $13,000,000, as such amount may be reduced or
increased from time to time pursuant to Section 2.2.
"Kasco Dollar Note" shall mean a promissory note of
Kasco payable to any Lender, in the form of Exhibit A hereto
(as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Dollar Loans, and also shall mean
all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Lenders" is defined in the preamble.
"Letter of Credit" shall mean any standby letter of
credit issued by Bank of America under the Bairnco LC
Commitment and shall include, without limitation, the
letters of credit outstanding on the Effective Date listed
on Schedule LC hereto.
"Letter of Credit Loans" is defined in Section
2.9.1(c).
"Letter of Credit Notes" is defined in Section 2.9.5.
"Lien" shall mean any security interest, mortgage,
pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise), charge against
or interest in property to secure payment of a debt or
performance of an obligation or other priority or
preferential arrangement of any kind or nature whatsoever.
"Loan" shall mean any loan made to a Borrower under any
Commitment.
"Loan Documents" shall mean this Agreement, the Notes,
the Guaranty, the Pledge Agreement, the Security Agreement,
the Foreign Collateral Documents and each other agreement,
document or instrument delivered in connection with the
Original Agreement or this Agreement, all as from time to
time amended or modified and in effect.
"Maximum Revolving Loan Commitment Amount" shall mean,
on any date, the maximum amount (specifically excluding,
however, amounts borrowed or deemed borrowed in respect of
any Letter of Credit or any disbursements, unreimbursed by
Bairnco, made on Letters of Credit) that the Borrowers are
entitled to borrow as Revolving Loans under this Agreement,
with such amount initially to be $53,000,000, as such amount
may be reduced from time to time in accordance with Section
2.2 hereof.
"NCU" means the national currency unit (other than the
Euro) of a Participating Member State. From and after the
Euro Transition Cutoff Date, all references to NCU shall
mean instead the Euro.
"Net Worth" shall mean with respect to Bairnco and its
Subsidiaries at a particular date, an amount equal to the
aggregate par value of the outstanding shares of all classes
of stock of Bairnco plus paid-in capital in excess of the
par value of any shares (excluding the amounts which relate
to the cumulative translation adjustment beginning after
December 31, 1996) of stock plus retained earnings, less all
amounts carried on the books of Bairnco for treasury stock,
plus, solely for purposes of Section 7.2.3, Subordinated
Debt with no put options in favor of the holder of such
Subordinated Debt, on the consolidated balance sheet of
Bairnco.
"New Sub" is defined in Section 7.2.4.
"Note" shall mean, as the context may require, either a
Bairnco Note, an Arlon Note, a Kasco Dollar Note, a Letter
of Credit Note, a Foreign Dollar Note, an English Sub Note,
a French Sub Note, a German Sub Note or a Term Note.
"Obligations" shall mean (a) all obligations (monetary
or otherwise) of the Borrowers and each other Obligor
arising under or in connection with this Agreement, the
Notes and each other Loan Document and all Hedging
Obligations owed by any Obligor to any Lender, and (b) all
Indebtedness owing to a Lender (not to exceed $8,000,000 in
the aggregate) in respect of the Indebtedness cross-
collateralized with the Loans as permitted by Subsection
7.2.1(i) hereof.
"Obligor" shall mean the Borrower or any other Person
(other than the Agent or any Lender) obligated under any
Loan Document.
"Organic Document" shall mean, relative to any Obligor,
its certificate of incorporation, its by-laws and all
shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of
capital stock.
"Original Agreement" shall mean the Credit Agreement
dated as of September 27, 1990, by and among the Borrowers,
the Lenders and the Agent.
"Original Loan Documents" shall mean:
(a)the Original Agreement, all amendments to the original
Agreement executed and delivered prior to the date hereof;
(b)the Original Notes; and
(c)the Guaranty, the Pledge Agreement, the Security Agreement,
the Foreign Collateral Documents, and each other agreement,
document or instrument delivered in connection with the Original
Agreement, without giving effect to any amendments thereto set
forth in Section 10.15 of this Agreement.
"Original Notes" shall mean each and every Bairnco
Note, Arlon Note, Kasco Dollar Note, Letter of Credit Note,
English Sub Note, French Sub Note or German Sub Note
executed and delivered by the Borrowers, or any of them,
prior to the date hereof.
"Participant" is defined in Section 10.11.
"Participating Member State" means each country which
from time to time becomes a Participating Member State as
described in EMU Legislation.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its
functions under ERISA.
"Pension Plan" shall mean a "pension plan", as such
term is defined in section 3(2) of ERISA, which is subject
to Title IV of ERISA (other than a multiemployer plan as
defined in section 4001 (a) (3) of ERISA), and to which any
Borrower or any corporation, trade or business that is,
along with any Borrower, a member of a Controlled Group, may
have liability, including any liability by reason of having
been a substantial employer within the meaning of section
4063 of ERISA at any time during the preceding five years,
or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"Percentage" shall mean, relative to any Lender, the
percentage set forth opposite its signature hereto, as such
percentage may be adjusted from time to time pursuant to any
Assignment and Acceptance executed by such Lender and any
Eligible Assignee to whom such Lender may have assigned its
interest or a portion thereof pursuant to Section 10.11.
"Permitted Acquisition" means any acquisition of all or
substantially all of the stock, assets or business of any
Person by Bairnco or any of its Subsidiaries that is
permitted pursuant to Section 7.2.8.
"Person" shall mean any natural person, corporation,
partnership, firm, association, trust, government,
governmental agency or any other entity, whether acting in
an individual, fiduciary or other capacity.
"Plan" shall mean any Pension Plan or welfare Plan.
"Pledge Agreement" shall mean the Pledge Agreement
executed and delivered pursuant to Section 5.1.5 of the
Original Agreement, as amended and restated as of the date
hereof in substantially the form attached hereto as
Exhibit J, as it may be further amended, supplemented,
restated or otherwise modified from time to time.
"Purchasing Lender" is defined in Section 5.1.
"Quarterly Payment Date" shall mean the last day of
each March, June, September, and December or, if any such
day is not a Business Day, the next succeeding Business Day.
"Reference Rate Loan" shall mean (a) a Loan bearing
interest at a fluctuating rate determined by reference to
the Alternate Reference Rate or (b) a Reimbursement
Borrowing, as the context may require.
"Reimbursement Advance" means each Lender's
participation in any Reimbursement Borrowing in accordance
with its Percentage.
"Reimbursement Borrowing" means an extension of credit
resulting from a drawing under any Letter of Credit which
shall not have been reimbursed on the date when made or
converted into a borrowing of Letter of Credit Loans under
Section 2.9.1(b)."
"Release" shall mean a "release", as such term is
defined in CERCLA.
"Relevant Local Time", as to any Eurocurrency Office,
shall mean 11:00 a.m., London time, when such Eurocurrency
Office is located in Europe or the Middle East, or 10:00
A.M., New York time, when such Eurocurrency Office is
located in North America or the Caribbean.
"Required Lenders" shall mean, at any time, any Lenders
holding at least 66-2/3% of the sum of (i) the Revolving
Loan Commitments, or if the Revolving Loan Commitments have
been terminated, the then aggregate outstanding principal
amount of the Revolving Loans plus (ii) the then aggregate
outstanding amount of the Term Loans.
"Revolving Loans" shall mean Bairnco Loans, the Letter
of Credit Loans, the Arlon Loans, the Kasco Loans and the
Foreign Loans.
"Revolving Loan Commitment" shall mean, as the context
may require, a Lender's Bairnco Loan Commitment, Bairnco
Letter of Credit Commitment, Arlon Loan Commitment, Kasco
Dollar Loan Commitment or Foreign Loan Commitment.
"Security Agreement" shall mean the Security Agreement
executed and delivered pursuant to Section 5.1.6 of the
Original Agreement, as amended and restated as of the date
hereof in substantially the form attached hereto as
Exhibit K, as it may be further amended, supplemented,
restated or otherwise modified from time to time.
"Selling Lender" is defined in Section 5.1.
"Significant Subsidiary" is defined in Section 8.1.8.
"Signtech Acquisition" is defined in
Section 7.2.8(b)(iv).
"Stated Maturity Date" shall mean December 31, 2004.
"Statutory Reserves" shall mean a fraction (expressed
as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the
aggregate of the reserve percentages expressed as a decimal
established by the Board of Governors of the Federal Reserve
System to which the Lender calculating its Statutory
Reserves is subject for Eurocurrency Liabilities (as defined
in Regulation D of such Board of Governors). Statutory
Reserves shall be adjusted automatically on and as of the
effective date of any change in such applicable reserve
percentages. Loans at the Interbank Rate made hereunder
shall be deemed to constitute Eurocurrency Liabilities.
Such Eurocurrency Liabilities shall further be deemed to be
subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may
otherwise be available to any Lender from time to time under
such Regulation.
"Sterling Loan" shall mean any Loan made in Pounds
Sterling under the Foreign Loan Commitment.
"Sterling Rate" shall mean, with respect to any
Sterling Loan for any Interest Period, the rate per annum
equal to the rate at which Pound Sterling deposits in
immediately available funds are offered to the applicable
Eurocurrency Office of Bank of America three Business Days
prior to the beginning of such Interest Period by major
banks in the interbank eurocurrency market as at or about
the relevant local time of such Eurocurrency Office for
delivery on the first day of such Interest Period, for the
number of days comprised therein and in an amount equal or
comparable to the amount of such Sterling Loan from Bank of
America for such Interest Period.
"Stockholders' Investment" shall mean the sum of the
amounts indicated for the item "Stockholders' Investment" in
the Quarterly Report on Form 10Q for the first three
quarterly periods or in the Annual Report on Form 10K of
BAIRNCO and its Subsidiaries for the fourth quarterly
period.
"Subordinated Debt" shall mean any Indebtedness of any
Obligor or any Subsidiary of any Obligor for money borrowed
which is subordinated to all Obligations upon terms
satisfactory to the Agent and the Required Lenders, and
approved in writing by the Agent and the Required Lenders,
including without limitation with respect to payment terms,
maturities, amortization schedules, covenants, defaults,
remedies, interest rate and subordination provisions.
"Subsidiary" shall mean, with respect to any Person,
any corporation of which more than 50% of the outstanding
capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might
have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned by such Person, by
such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person.
"TARGET Business Day" means a day when TARGET (Trans-
European Automated Real-time Gross settlement Express
Transfer System), or any successor thereto, is scheduled to
be open for business.
"Taxes" is defined in Section 4.6.
"Term Loans" is defined in Section 2.1.8.
"Term Loan Commitment" shall mean relative to any
Lender, such Lender's obligation to make Term Loans to Arlon
pursuant to Section 2.1.8.
"Term Note" shall mean a promissory note of Arlon
payable to any Lender, in the form of Exhibit A hereto (as
such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to such Lender resulting from
outstanding Term Loans, and also shall mean all other
promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"type" shall mean, relative to any Loan, the portion
thereof, if any, being maintained as a Reference Rate Loan,
a Interbank Rate Loan, a DM Loan, a FF Loan, or a Sterling
Loan.
"Uniform Customs" is defined in Section 2.9.3.
"United States" or "U.S." shall mean the United States
of America, its fifty States and the District of Columbia.
"Welfare Plan" shall mean a "welfare plan", as such
term is defined in section 3(l) of ERISA.
SECTION 1.2 Use of Defined Terms. Unless otherwise defined or
the context otherwise requires, terms for which meanings are
provided in this Agreement shall have such meaning when used in
the Disclosure Schedule and in each Note, Borrowing Request,
Continuation/Conversion Notice, Loan Document, notice and other
communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3 Cross-References. Unless otherwise specified,
references in this Agreement and in each other Loan Document to
any Article or Section are references to such Article or Section
of this Agreement or such other Loan Document, as the case may
be, and, unless otherwise specified, references in any Article,
Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4 Accounting and Financial Determinations. Unless
otherwise specified, all accounting terms used herein or in any
other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder
(including under Section 7.2.3) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall
be prepared in accordance with, those generally accepted
accounting principles ("GAAP") applied in the preparation of the
financial statements referred to in Section 6.5.
SECTION 1.5 Materiality. It is understood and agreed that, in
the event of any dispute over whether an event, amount, matter or
item of any sort is material, the opinion of the Agent and the
Required Lenders shall be conclusive and binding on the Obligors
unless the Obligors show that such opinion is not reasonable.
ARTICLE 2
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1 Commitments. On the terms and subject to the
conditions of this Agreement (including Article 5) , each Lender
severally agrees to make Loans pursuant to the Commitments
described in this Section 2.1.
2.1.1 Bairnco Loan Commitment. From time to time on any Business
Day occurring prior to the Commitment Termination Date, each
Lender will make Loans in Dollars (relative to such Lender, its
"Bairnco Loans") to Bairnco equal to such Lender's Percentage of
the aggregate amount of the Borrowing of Bairnco Loans requested
by Bairnco to be made on such day. The Commitment of each Lender
described in this Section 2.1.1 is herein referred to as its
"Bairnco Loan Commitment". On the terms and subject to the
conditions hereof, Bairnco may from time to time borrow, prepay
and reborrow Bairnco Loans.
2.1.2 Arlon Loan Commitment. From time to time on any Business
Day occurring prior to the Commitment Termination Date, each
Lender will make Loans in Dollars (relative to such Lender, its
"Arlon Loans") to Arlon equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Arlon Loans requested by
Arlon to be made on such day. The Commitment of each Lender
described in this Section 2.1.2 is herein referred to as its
"Arlon Loan Commitment". On the terms and subject to the
conditions hereof, Arlon may from time to time borrow, prepay and
reborrow Arlon Loans.
2.1.3 Kasco Dollar Loan Commitment. From time to time on any
Business Day occurring prior to the Commitment Termination Date,
each Lender will make Loans in dollars (relative to such Lender,
its "Kasco Dollar Loans") to Kasco equal to such Lender's
Percentage of the aggregate amount of the Borrowing of Kasco
Dollar Loans requested by Kasco to be made on such day. The
Commitment of each Lender described in this Section 2.1.3 is
herein referred to as its "Kasco Dollar Loan Commitment". on the
terms and subject to the conditions hereof, Kasco may from time
to time borrow, prepay and reborrow Kasco Dollar Loans.
2.1.4 Foreign Dollar Loan Commitment. From time to time on any
Business Day occurring prior to the Commitment Termination Date,
Bank of America will make Foreign Dollar Loans to Bairnco equal
to the amount of the Borrowing of Foreign Dollar Loans as
requested to be made to Bairnco on such day. Such Foreign Dollar
Loans shall be made to Bairnco solely for the purpose of
permitting Bairnco to provide financing to the English Sub, the
French Sub, or the German Sub. The aggregate amount of the
Foreign Dollar Loans and all other Foreign Loans shall at no time
exceed the applicable Foreign Loan Commitment Amount. On the
terms and subject to the conditions hereof, Bairnco may from time
to time borrow, prepay and reborrow Foreign Dollar Loans.
2.1.5 English Sub Loan Commitment. From time to time on any
Business Day occurring prior to the Commitment Termination Date,
Bank of America will make Loans in Pounds Sterling ("English Sub
Loans") to English Sub equal to the amount of the Borrowing of
English Sub Loans requested by such English Sub to be made on
such day. The Commitment of Bank of America described in this
Section 2.1.5 is herein referred to as its "English Sub Loan
Commitment". On the terms and subject to the conditions hereof,
the English Sub may from time to time borrow, prepay and reborrow
English Sub Loans.
2.1.6 French Sub Loan Commitment. From time to time on any
Business Day occurring prior to the Commitment Termination Date,
Bank of America will make Loans in French Francs or Euro ("French
Sub Loans") to French Sub equal to the amount of the Borrowing of
French Sub Loans requested by French Sub to be made on such day.
The Commitment of Bank of America described in this Section 2.1.6
is herein referred to as its "French Sub Loan Commitment". On
the terms and subject to the conditions hereof, French Sub may
from time to time borrow, prepay and reborrow French Sub Loans.
2.1.7 German Sub Loan Commitment. From time to time on any
Business Day occurring prior to the Commitment Termination Date,
Bank of America will make Loans in Deutsche Marks or Euro
("German Sub Loans") to German Sub equal to the amount of the
Borrowing of German Sub Loans requested by German Sub to be made
on such day. The Commitment of Bank of America described in this
Section 2.1.7 is herein referred to as its "German Sub Loan
Commitment". On the terms and subject to the conditions hereof,
German Sub may from time to time borrow, prepay and reborrow
German Sub Loans.
2.1.8 Term Loan Commitment. On the Effective Date, each Lender
will make a Loan in Dollars (relative to such Lender, its "Term
Loans") to Arlon equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Term Loans requested by
Arlon to be made on such day. The Commitment of each Lender
described in this Section 2.1.8 is herein referred to as its
"Term Loan Commitment". Each Lender's Term Loan Commitment shall
expire immediately and without further action on February __,
2000 if the Term Loans are not made on or before that date.
Arlon may make only one Borrowing under the Term Loan
Commitments. Amounts borrowed under this subsection 2.1.8 and
subsequently repaid or prepaid may not be reborrowed.
2.1.9 Limits on Dollar Loans. No Lender shall be permitted or
required to make
(a)any Bairnco Loan if, after giving effect thereto, the
aggregate outstanding principal amount of
(i)Bairnco Loans of all Lenders would exceed the Bairnco Loan
Commitment Amount, or
(ii)Bairnco Loans of such Lender would exceed such Lender's
Percentage of the Bairnco Loan Commitment Amount; or
(b)any Arlon Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all Arlon Loans
(i)of all Lenders would exceed the Arlon Loan Commitment Amount,
or
(ii)of such Lender would exceed such Lender's Percentage of the
Arlon Loan Commitment Amount; or
(c)any Kasco Dollar Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Kasco Dollar Loans
(i)of all Lenders would exceed the Kasco Dollar Loan Commitment
Amount, or
(ii)of such Lender would exceed such Lender's Percentage of the
Kasco Dollar Loan Commitment Amount.
2.1.10 Limit on Foreign Loans. Bank of America shall not be
permitted or required to make any Foreign Loan if, after giving
effect thereto, the Dollar Amount of the aggregate outstanding
principal amount of all Foreign Loans would exceed the Foreign
Loan Commitment Amount.
2.1.11 Limit on Revolving Loans. No Lender shall be permitted or
required to make any Revolving Loan (other than a Letter of
Credit Loan) if, after giving effect thereto, the aggregate
outstanding principal Dollar Amount of all Revolving Loans of all
Lenders would exceed the Maximum Revolving Loan Commitment
Amount. No Lender shall be permitted or required to make any
Revolving Loan (other than a Letter of Credit Loan or a Foreign
Loan) if, after giving effect thereto, the aggregate outstanding
principal Dollar Amount of such Loans of such Lender would exceed
such Lender's Percentage of the excess of the Maximum Revolving
Loan Commitment Amount over the aggregate outstanding principal
Dollar Amount of all Foreign Loans.
2.1.12 Redenomination in Euro. From and after the Euro
Transmission Cutoff Date, Loans denominated in an NCU shall be
automatically redenominated into the Euro as of the close of
business on such date at the applicable rate adopted and
irrevocably fixed by the European Council (in accordance with
Article 1091(4) of the Treaty on European Union) on December 31,
1998 as the official exchange rate between the Euro and such NCU.
SECTION 2.2 Reduction of Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to
this Section 2.2.
2.2.1 Optional. Any Borrower may, from time to time on any
Business Day, voluntarily terminate or reduce the amount of its
related Commitment Amount or Commitment Amounts by written notice
to the Agent specifying the particular Commitment Amount or
Commitment Amounts that are to be so terminated or reduced and,
in the case of any partial reduction, the amount of the partial
reduction to each such Commitment Amount; provided, however, that
(a) all such terminations and reductions shall require at least
five Business Days' prior notice to the Agent and (except with
respect to the Bairnco LC Commitment Amount and as otherwise
provided in Section 2.2.4 hereof) shall be permanent, (b) any
partial reduction of any Commitment Amount shall be in a minimum
amount of $500,000 and, if more than $500,000, in an integral
multiple of $100,000, and (c) any Commitment Amount as so reduced
shall equal or exceed the aggregate outstanding amount of Loans
thereunder or, in the case of the Bairnco LC Commitment Amount,
the sum of the aggregate undrawn amount of all outstanding
Letters of Credit plus the aggregate amount of disbursements,
unreimbursed by Bairnco, made on the Letters of Credit. Any such
voluntary termination or reduction of a Commitment Amount (other
than the Bairnco LC Commitment Amount) shall automatically reduce
the Maximum Revolving Loan Commitment Amount by the same amount
2.2.2 [Intentionally Omitted].
2.2.3 Mandatory. The Maximum Revolving Loan Commitment Amount
shall be permanently reduced in the amounts and under the
circumstances provided in Section 3.1.
2.2.4 Transfer of Commitment Amounts. Bairnco may, from time to
time (but never more than six (6) times in any one year period),
on at least two (2) Business Days' prior written notice received
by the Agent (which shall promptly advise each Lender thereof):
(a)increase the Bairnco LC Commitment Amount by reducing at the
same time and in the same aggregate amount any one or more of the
Bairnco Loan Commitment Amount, the Arlon Loan Commitment Amount,
or the Kasco Dollar Loan Commitment Amount; provided, however,
that (i) the Bairnco LC Commitment Amount as so increased shall
not exceed $15,000,000, (ii) the Bairnco Loan Commitment Amount,
Arlon Loan Commitment Amount, or Kasco Dollar Loan Commitment
Amount as so reduced shall not be less than the aggregate unpaid
principal amount of the Loans then outstanding in respect of such
Commitment, and (iii) any such increase and concurrent reduction
shall be in a minimum amount of $500,000, or if more than
$500,000, in an integral multiple of $100,000; or
(b)increase any one or more of the Bairnco Loan Commitment
Amount, the Arlon Loan Commitment Amount, or the Kasco Dollar
Loan Commitment Amount by reducing at the same time and in the
same aggregate amount the Bairnco LC Commitment Amount; provided,
however, that (i) the Bairnco LC Commitment Amount as so reduced
shall not be less than $5,000,000, (ii) the Bairnco LC Commitment
Amount as so reduced shall equal or exceed the sum of the
aggregate undrawn amount of all outstanding Letters of Credit
plus the aggregate amount of disbursements, unreimbursed by
Bairnco, made on the Letters of Credit, and (iii) any such
increase and concurrent reduction shall be in a minimum amount of
$500,000, or if more than $500,000, in an integral multiple of
$100,000.
SECTION 2.3 Borrowing Procedure. The procedure for Borrowings
under this Agreement shall be as follows:
(a)By delivering a Borrowing Request to the Agent on or before
10:30 a.m., New York time, on a Business Day, a Borrower (other
than an English Sub, French Sub and German Sub) may from time to
time irrevocably request, on a same-day basis for Reference Rate
Loans, and on not less than three nor more than five Business
Days' notice for Interbank Rate Loans, that a Borrowing in
Dollars be made in a minimum amount of $500,000 and an integral
multiple of $100,000, or in the unused amount of the applicable
Commitment. On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the type of
Loans, and shall be made on the Business Day, specified in such
Borrowing Request. The Agent shall provide prompt notice of such
Borrowing Request to the Lenders, and on or before 1:00 p.m., New
York time, on such Business Day each Lender shall deposit with
the Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made
to an account which the Agent shall specify from time to time by
notice to the Lenders. To the extent funds are received from the
Lenders, the Agent shall make such funds available to the related
Borrower by wire transfer to the accounts the related Borrower
shall have specified in its Borrowing Request. No Lender's
obligation to make any Loan shall be affected by any other
Lender's failure to make any Loan.
(b)By delivering a Borrowing Request to the Agent on or before
10:30 a.m., New York time, on a Business Day, the English Sub may
from time to time irrevocably request, on not less than three nor
more than five Business Days' notice, that a Borrowing be made in
Pounds Sterling in a minimum Dollar Amount of $100,000 and an
integral multiple of $100,000, or in the unused amount of its
applicable Commitment. on the terms and subject to the conditions
of this Agreement, each such Borrowing shall be comprised of
Sterling Loans, and shall be made on the Business Day specified
in such Borrowing Request on or before 11:00 a.m., New York time,
on such Business Day Bank of America shall make such funds
available to such Borrower to the accounts such Borrower shall
have specified in its Borrowing Request.
(c)By delivering a Borrowing Request to the Agent on or before
10:30 a.m., New York time, on a Business Day, the French Sub may
from time to time irrevocably request, on not less than three nor
more than five Business Days' notice, that a Borrowing be made in
French Francs in a minimum Dollar Amount of $100,000 and an
integral multiple of $100,000, or in the unused amount of its
applicable Commitment. On the terms and subject to the
conditions of this Agreement, each such Borrowing shall be
comprised of FF Loans, and shall be made on the Business Day
specified in such Borrowing Request. On or before 11:00 a.m.,
New York time, on such Business Day Bank of America shall make
such funds available to such Borrower to the accounts such
Borrower shall have specified in its Borrowing Request.
(d)By delivering a Borrowing Request to the Agent on or before
10:30 a.m., New York time, on a Business Day, the German Sub may
from time to time irrevocably request, on not less than three nor
more than five Business Days' notice, that a Borrowing be made in
Deutsche Marks in a minimum Dollar Amount of $100,000 and an
integral multiple of $100,000, or in the unused amount of its
applicable Commitment. on the terms and subject to the conditions
of this Agreement, each such Borrowing shall be comprised of DM
Loans, and shall be made on the Business Day specified in such
Borrowing Request. On or before 11:00 a.m. (New York time) on
such Business Day Bank of America shall make such funds available
to such Borrower to the accounts such Borrower shall have
specified in its Borrowing Request.
(e)Each Borrower acknowledges that any Lender's liability for
any delay in funding a Borrowing Request shall not include
incidental or consequential damages that may be incurred by such
Borrower as a result of such delay.
SECTION 2.4 Continuation and Conversion Elections.
(a)By delivering a Continuation/Conversion Notice to the Agent
on or before 10:30 a.m., New York time, on a Business Day, the
related Borrower may from time to time irrevocably elect, on a
same-day basis for a continuation as or conversion into Reference
Rate Loans and on not less than three nor more than five Business
Days' notice for a continuation as or conversion into Interbank
Rate Loans that all, or any portion in an aggregate minimum
amount of $1,000,000 and an integral multiple of $100,000, of any
Dollar Loans be, in the case of Reference Rate Loans, converted
into Interbank Rate Loans or, in the case of Interbank Rate
Loans, or converted into a Reference Rate Loan or continued as a
Interbank Rate Loan (in the absence of delivery of a
Continuation/Conversion Notice with respect to any Interbank Rate
Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such Interbank Rate
Loan shall, on such last day, automatically convert to a
Reference Rate Loan); provided, however, that (i) each such
conversion or continuation shall be pro rated among the
applicable outstanding Dollar Loans of all Lenders, and (ii) no
portion of the outstanding principal amount of any Dollar Loans
may be continued as, or be converted into, Interbank Rate Loans
when any Default has occurred and is continuing. Conversion of
an Interbank Rate Loan to a Reference Rate Loan may occur only at
the end of the relevant Interest Period for such Interbank Rate
Loan.
(b)By delivering a Continuation/Conversion Notice to the Agent
on or before 10:30 a.m., New York time, on a Business Day, the
related Borrower may from time to time irrevocably elect, on not
less than three nor more than five Business Days' notice that
all, or any portion in an aggregate minimum Dollar Amount of
$100,000 and an integral multiple of $100,000, of any Sterling
Loans be continued as a Loan (in the absence of a delivery of a
Continuation/Conversion Notice with respect to any Sterling Loan
at least three Business Days before the last day of the then
current interest Period with respect thereto, such Sterling Loan
shall, on such last day, automatically be deemed to be subject to
an Interest Period of one month).
(c)By delivering a Continuation/Conversion Notice to the Agent
on or before 10:30 a.m., New York time, on a Business Day, the
related Borrower may from time to time irrevocably elect, on not
less than three nor more than five Business Days' notice that
all, or any portion in an aggregate minimum Dollar Amount of
$100,000 and an integral multiple of $100,000, of any FF Loans be
continued as a Loan (in the absence of delivery of a
Continuation/Conversion Notice with respect to any FF Loan at
least three Business Days before the last day of the then current
Interest Period with respect thereto, such FF Loan shall, on such
last day, automatically be deemed to be subject to an Interest
Period of one month).
(d)By delivering a Continuation/Conversion Notice to the Agent
on or before 10:30 a.m. New York time, on a Business Day, the
related Borrower may from time to time irrevocably elect, on not
less than three nor more than five Business Days' notice that
all, or any portion in an aggregate minimum Dollar Amount of
$100,000 and an integral multiple of $100,000, of any DM Loans be
continued as a Loan (in the absence of delivery of a
Continuation/Conversion Notice with respect to any DM Loan at
least three Business Days before the last day of the then current
Interest Period with respect thereto, such DM Loan shall, on such
last day, automatically be deemed to be subject to an Interest
Period of one month).
SECTION 2.5 Funding. Each Lender may, if it so elects, fulfill
its obligation to make, continue or convert Eurocurrency Rate
Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such
Lender) to make or maintain such Eurocurrency Rate Loan;
provided, however, that such Eurocurrency Rate Loan shall
nonetheless be deemed to have been made and to be held by such
Lender, and the obligation of the related Borrower to repay such
Eurocurrency Rate Loan shall nevertheless be to such Lender for
the account of such foreign branch, Affiliate or international
banking facility. In addition, each Borrower hereby consents for
purposes of any determination to be made for purposes of Sections
4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each
Lender elected to fund all Interbank Rate Loans by purchasing, as
the case may be, Dollar certificates of deposit in the U.S. or
Dollar deposits in its Interbank Offered Rate Office's Interbank
offered Rate Office's interbank eurodollar market.
SECTION 2.6 Notes. Each Lender's Loans under a Commitment in a
given currency shall be evidenced by a Note payable to the order
of such Lender in a maximum principal amount equal to such
Lender's Percentage of the original applicable Commitment Amount.
Each Lender's Term Loans shall be evidenced by a Note payable to
the order of such Lender in an amount equal to such Lender's
Percentage of the Term Loans made on the Effective Date. Each
Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate notations on the grid attached to
such Lender's Notes (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations
shall be conclusive and binding on such Borrower absent manifest
error; provided, however, that the failure of any Lender to make
any such notations shall not limit or otherwise affect any
Obligations of such Borrower or any other Obligor.
SECTION 2.7 Bairnco LC Commitment. Subject to the terms and
conditions of this Agreement, Bank of America agrees to issue
under the several responsibilities of the Lenders in accordance
with their respective Percentages, Letters of Credit for the
account of Bairnco for any use in the ordinary course of its and
the Subsidiaries' business which shall not cause or result in the
occurrence of a Default, from time to time before the date that
is two calendar months prior to the Commitment Termination Date,
in such amounts as Bairnco may from time to time request;
provided, however, that
(a)the sum of the undrawn amount of all outstanding Letters of
Credit plus the aggregate amount of all disbursements,
unreimbursed by Bairnco, made on Letters of Credit shall not at
any time exceed the Bairnco LC Commitment Amount;
(b)unless otherwise agreed by the Lenders no Letter of Credit
shall expire later than one year from the date of issuance,
subject to annual renewal (except for an 18-month Letter of
Credit in an amount not in excess of $3,300,000 supporting a
Variable Rate Demand Note program of Arlon) and no Letter of
Credit shall expire later than the Commitment Termination Date;
and
(c)the terms and provisions of each Letter of Credit and each
application therefor shall be satisfactory to Bank of America and
the Required Lenders in their discretion.
SECTION 2.8 Letter of Credit Procedures. Bank of America shall
receive at least five Business Days' prior written notice from
Bairnco of each proposed Letter of Credit to be issued hereunder.
Each such notice shall be in such form as shall then be Bank of
America's standard form of application for the relevant type of
letter of credit (with appropriate adjustments to indicate that
such Letter of Credit is to be issued pursuant to, and subject to
the terms and conditions of, this Agreement). Promptly upon
receipt of such notice, Bank of America shall advise each other
Lender thereof. Upon issuance of each Letter of Credit, Bank of
America shall give the other Lenders prompt written notice (in
reasonable detail) of such issuance.
SECTION 2.9 Certain Provisions Relating to the Letters of
Credit.
2.9.1 Letters of Credit Participations; Drawings and
Reimbursements.
(a)Immediately upon the issuance of each Letter of Credit, each
Lender (other than Bank of America) shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from
Bank of America a participation in such Letter of Credit and each
drawing thereunder in an amount equal to the product of (i) the
Percentage of such Lender, times (ii) the maximum amount
available to be drawn under such Letter of Credit and the amount
of such drawing, respectively. For purposes of Section 3.3.1,
each issuance of a Letter of Credit shall be deemed to utilize
the Bairnco LC Commitment of each Lender by an amount equal to
the amount of such participation.
(b)In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, Bank of America
will promptly notify Bairnco. Bairnco shall reimburse Bank of
America prior to 10:30 a.m., New York time, on each date that any
amount is paid by Bank of America under any Letter of Credit
(each such date, an "Honor Date"), in an amount equal to the
amount so paid by Bank of America. In the event Bairnco shall
fail to reimburse Bank of America for the full amount of any
drawing under any Letter of Credit by 10:30 a.m., New York time,
on the Honor Date, Bank of America will promptly notify the Agent
and the Agent will promptly notify each Lender thereof, and
Bairnco shall be deemed to have requested that Reference Rate
Loans be made by the Lenders to be disbursed on the Honor Date
under such Letter of Credit, subject to the amount of the
unutilized portion of the Bairnco LC Commitment and subject to
the conditions set forth in Section 5.2.1. Such deemed request
by Bairnco shall constitute a representation and warranty by
Bairnco that on the date of such Loans (both before and after
giving effect to such Loans and the application of the proceeds
thereof), the statements made in Section 5.2.1 are true and
correct. Any notice given by Bank of America or the Agent
pursuant to this Section 2.9.1(b) may be oral if immediately
confirmed in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(c)Each Lender shall upon receipt of any notice pursuant to
Section 2.9.1(b) make available to the Agent for the account of
Bank of America an amount in Dollars and in immediately available
funds equal to its Percentage of the amount of the drawing,
whereupon the participating Lenders shall (subject to Section
2.9.1(d)) each be deemed to have made a loan (individually, a
"Letter of Credit Loan"; collectively, the "Letter of Credit
Loans") consisting of a Reference Rate Loan to Bairnco in that
amount. If any Lender so notified shall fail to make available
to the Agent for the account of Bank of America the amount of
such Lender's Percentage of the amount of the drawing by no later
than 1:00 p.m., New York time, on the Honor Date, then interest
shall accrue on such Lender's obligation to make such payment,
from the Honor Date to the date such Lender makes such payment,
at a rate per annum equal to (i) the Federal Funds Rate in effect
from time to time during the period commencing on the Honor Date
and ending on the date three Business Days thereafter, and (ii)
thereafter at the Alternate Reference Rate as in effect from time
to time. The Agent will promptly give notice of the occurrence
of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any
Lender to effect such payment on such date shall not relieve such
Lender from its obligations under this Section 2.9.1.
(d)With respect to any unreimbursed drawing which is not
converted into a Letter of Credit Loan in whole or in part,
because of Bairnco's failure to satisfy the conditions set forth
in Section 5.2.1 or for any other reason, Bairnco shall be deemed
to have incurred from Bank of America a Reimbursement Borrowing
in the amount of such drawing, which Reimbursement Borrowing
shall be due and payable on demand (together with interest) and
shall bear interest at a rate per annum equal to the Alternate
Reference Rate plus 2.50% per annum, and each Lender's payment to
Bank of America pursuant to Section 2.9.1(c) shall be deemed
payment in respect of its participation in such Reimbursement
Borrowing and shall constitute a Reimbursement Advance from such
Lender in satisfaction of its participation obligation under this
Section 2.9.1.
(e)For purposes of this Agreement, all of the provisions
applicable to Bairnco Loans shall apply to Letter of Credit
Loans; provided, however, that any Letter of Credit Loan
outstanding shall be deemed to utilize the Bairnco LC Commitment
(without duplication of any utilization thereof by the Letter of
Credit from which such Letter of Credit Loan arises) and not the
Bairnco Loan Commitment.
(f)Each Lender's obligation in accordance with this Agreement to
make the Letter of Credit Loans or Reimbursement Advances, as
contemplated by this Section 2.9.1, as a result of a drawing
under a Letter of Credit shall be absolute and unconditional and
without recourse to Bank of America and shall not be affected by
any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against Bank of America, Bairnco or any other Person for any
reason whatsoever, including, without limitation, any defense
based on the failure of the demand for payment under such Letter
of Credit to conform to the terms of such Letter of Credit or the
legality, validity, regularity or enforceability of such Letter
of Credit or any defense based on the identity of the transferee
of such Letter of Credit or the sufficiency of the transfer if
such Letter of Credit is transferable; provided, however, that no
Lender shall be obligated to make Letter of Credit Loans or
Reimbursement Advances pursuant to the preceding provisions of
this Section 2.9.1 in connection with any wrongful payment or
disbursement made by Bank of America under any Letter of Credit
as a result of acts or omissions constituting gross negligence or
willful misconduct on the part of Bank of America or any of its
officers, employees or agents.
2.9.2 Repayment of Participations.
(a)Upon (and only upon) receipt by the Agent for the account of
Bank of America of funds from Bairnco (i) in reimbursement of any
payment made by Bank of America under a Letter of Credit with
respect to which any Lender has paid the Agent for the account of
Bank of America for such Lender's participation in the Letter of
Credit pursuant to Section 2.9.1, or (ii) in payment of interest
thereon, the Agent will pay to each Lender that has so paid the
Agent for the account of Bank of America, in the same funds as
those received by the Agent for the account of Bank of America,
the amount of such Lender's Percentage of such funds, and Bank of
America shall receive the amount of the Percentage of such funds
of any Lender that did not so pay the Agent for the account of
Bank of America.
(b)If the Agent or Bank of America is required at any time to
return to Bairnco, or to a trustee, receiver, liquidator,
custodian, or any official in any insolvency proceeding in which
Bairnco is the debtor, any portion of the payments made by
Bairnco to the Agent for the account of Bank of America pursuant
to Section 2.9.2(a) in reimbursement of a payment made under any
Letter of Credit or interest or fee thereon, each Lender shall,
on demand of the Agent, forthwith return to the Agent or Bank of
America the amount of its Percentage of any amounts so returned
by the Agent or Bank of America plus interest thereon from the
date such demand is made to the date such amounts are returned by
such Lender to the Agent or Bank of America, at a rate per annum
equal to the Federal Funds Rate in effect from time to time.
2.9.3 Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as most recently published by
the International Chamber of Commerce ("Uniform Customs") shall
in all respects be deemed a part of this Section 2.9 as if
incorporated herein and (unless otherwise expressly provided in
the Letters of Credit) shall apply to the Letters of Credit.
2.9.4 Cash Collateral. Upon the termination of the Bairnco LC
Commitment, whether by occurrence of the Commitment Termination
Date or otherwise, Bairnco shall immediately cause the
cancellation of all Letters of Credit or shall immediately
provide cash collateral to the Agent pursuant to the Security
Agreement in the aggregate outstanding amount of all Letters of
Credit.
2.9.5 Letter of Credit Notes. The Letter of Credit Loans of each
Lender to Bairnco shall be evidenced by a promissory note of
Bairnco (herein, as amended, modified or supplemented from time
to time and together with any promissory note taken in
substitution therefor, individually called a "Letter of Credit
Note" and collectively, for all Lenders, called the "Letter of
Credit Notes") substantially in the form of Exhibit C, with
appropriate insertions, dated the date hereof, payable to the
order of such Lender in the maximum principal amount of the
Bairnco LC Commitment of such Lender (or, if less, in the
aggregate unpaid principal amount of all of such Lender's Letter
of Credit Loans).
ARTICLE 3
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1 Repayments and Prepayments. Subject to the
following provisions of this Section 3.1, each Borrower shall
repay in full the unpaid principal amount of each Loan to such
Borrower upon the Stated Maturity Date therefor in the currency
in which such loan was made.
3.1.1 Optional Prepayments. Each Borrower may, from time to time
on any Business Day, make a voluntary prepayment, in whole or in
part, of the outstanding principal amount of all Loans comprising
the same Borrowing; provided, however, that
(i)such prepayment of any Eurocurrency Rate Loan may be made on
any day other than the last day of the Interest Period for such
Loan;
(ii)such voluntary prepayments shall require at least three
Business Days' prior written notice to the Agent;
(iii)such voluntary partial prepayments of Dollar Loans shall be
in an aggregate minimum amount of $500,000 and an integral
multiple of $100,000; and
(iv)such voluntary partial prepayments of Foreign Loans shall be
in an aggregate minimum amount of $100,000 and an integral
multiple of $100,000.
3.1.2 Scheduled Payments of Term Loans. Arlon shall make
principal payments on the Term Loans in installments on each
Quarterly Payment Date in the amounts set forth below for the
period in which such Quarterly Payment Date occurs:
Period ending on Scheduled Repayment
or on each Quarterly
before: Payment
Date:
December 31, 2000 $500,000
December 31, 2001 $750,000
December 31, 2002 $1,000,000
December 31, 2003 $1,250,000
December 31, 2004 $1,500,000
; provided, that the scheduled installments of principal of
the Term Loans set forth above shall be reduced in
connection with any voluntary or mandatory payments of the
Term Loans in accordance with Sections 3.1.3; and provided,
further, that the Term Loans and all other amounts owed
hereunder with respect to the Term Loans shall be paid in
full no later than the Stated Maturity Date and the final
installment payable by Arlon in respect of the Term Loans on
such date shall be in an amount, if such amount is different
from that specified above, sufficient to repay all amounts
owing under this Agreement with respect to the Term Loans.
3.1.3 Mandatory Prepayments and Mandatory Reductions of
Commitments. The Loans shall be prepaid and/or the Commitment
Amounts shall be permanently reduced in the amounts and under the
circumstances set forth below, all such prepayments and/or
reductions to be applied as set forth below or as more
specifically provided in Section 3.1.4:
(a)Asset Sales. On each date an Obligor receives proceeds of
$2,000,000 or more of the sale or other disposition (including
without limitation a sale and leaseback transaction or the
receipt of insurance proceeds from damage or destruction of
assets that are not being used to repair or replace such assets)
of assets, in one transaction or in a series of related
transactions, the Borrowers shall prepay the Loans and/or the
Maximum Revolving Loan Commitment Amount and the Commitment
Amounts shall be permanently reduced by the amount of such
proceeds (net of taxes and sales expenses).
(b)Issuance of Equity Securities. On the date of receipt by
Bairnco or any of its Subsidiaries of the cash proceeds (any such
proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including
reasonable legal fees and expenses, being "Net Equity Proceeds")
from the issuance of any equity securities of Bairnco or its
Subsidiaries (other than any such issuance to (i) Bairnco or any
of its Subsidiaries or (ii) to an employee, officer or director
or former employee, officer or director of Bairnco or any of its
Subsidiaries pursuant to a stock option plan), the Borrowers
shall prepay the Loans and/or the Maximum Revolving Loan
Commitment and the Commitment Amounts shall be permanently
reduced in an aggregate amount equal to such Net Equity Proceeds.
(c)Issuance of Debt Securities. On the date of receipt by
Bairnco or Arlon of the cash proceeds (any such proceeds, net of
underwriting discounts and commissions and other reasonable costs
and expenses associated therewith, including reasonable legal
fees and expenses, being "Net Debt Proceeds") from the issuance
of any debt securities of Bairnco or Arlon pursuant to
Section 7.2.1(j) in a cumulative aggregate amount in excess of
$20,000,000, the Borrowers shall prepay the Loans and/or the
Maximum Revolving Loan Commitment and the Commitment Amounts
shall be permanently reduced in an amount equal to the amount by
which such cumulative Net Debt Proceeds exceed $20,000,000.
(d)Repayment on Reduction of Commitments. Each Borrower shall,
on each date when any reduction in the Maximum Revolving Loan
Commitment Amount or any Commitment Amount shall become
effective, including pursuant to Section 2.2, make a mandatory
prepayment of all such Loans equal to the excess, if any, of the
aggregate, outstanding principal amount of all such Loans over
the Maximum Revolving Loan Commitment Amount or such Commitment
Amount as so reduced;
(e)Repayment of Foreign Loans. Each Borrower shall, on each
date when the Dollar Amount of the Foreign Loans outstanding
exceeds the Foreign Loan Commitment Amount, make a mandatory
prepayment of all such Loans equal to such excess; and
(f)Repayment on Acceleration. Each Borrower shall immediately
upon any acceleration of the Stated Maturity Date of any Loans
pursuant to Section 8.2 or Section 8.3, repay all Loans, unless,
pursuant to Section 8.3, only a portion of all Loans is so
accelerated.
3.1.4 Application of Prepayments and Reductions of Commitments.
(a)Application of Voluntary Prepayments by Type of Loans and
Order of Maturity. Any voluntary prepayments pursuant to Section
3.1.1 shall be applied as specified by Bairnco or the applicable
Borrower in the applicable notice of prepayment; provided that in
the event the applicable Borrower fails to specify the Loans to
which any such prepayment shall be applied, such prepayment shall
be applied first to repay outstanding Revolving Loans to the full
extent thereof and second to repay outstanding Term Loans to the
full extent thereof. Any voluntary prepayments of the Term Loans
pursuant to Section 3.1.1 shall be applied pro rata to reduce the
scheduled installments of principal of the Term Loans set forth
in Section 3.1.2.
(b)Application of Mandatory Prepayments by Type of Loans. Any
amount (the "Applied Amount") required to be applied as a
mandatory prepayment of the Loans and/or a reduction of the
Revolving Loan Commitments pursuant to Section 3.1.3 shall be
applied first to prepay the Term Loans to the full extent
thereof, second, to the extent of any remaining portion of the
Applied Amount, to permanently reduce the Commitment Amounts
(other than the Foreign Loan Commitment) of the applicable
Borrower (or in the case of a non-Borrower, the Borrower of which
such Obligor is a Subsidiary) and prepay the Loans so that, the
outstanding Loans do not exceed the applicable Commitment, and
third, to the extent of any remaining portion of the Applied
Amount, to permanently reduce the Foreign Loan Commitment to the
full extent thereof.
(c)Application of Mandatory Prepayments of Term Loans by Order
of Maturity. Any mandatory prepayments of the Term Loans
pursuant to Section 3.1.3 shall be applied to reduce the
scheduled installments of principal of the Term Loans set forth
in Section 3.1.2 on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) to each
scheduled installment of principal of the Term Loans set forth in
Section 3.1.2 that is unpaid at the time of such prepayment.
SECTION 3.2 Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in
accordance with this Section 3.2; provided, that any interest
payable with respect to the period prior to and ending on the
Effective Date in respect of Loans made under the 1992 Agreement
and refinanced as Loans hereunder pursuant to Section 5.1 shall
be at a rate determined by reference to the provisions of the
1992 Agreement as in effect before the execution of this
Agreement.
3.2.1 Dollar Loan Interest Rates. Pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice,
the related Borrower may elect that Dollar Loans comprising a
Borrowing accrue interest at a rate per annum:
(a)on that portion maintained from time to time as a Reference
Rate Loan, equal to the sum of the Alternate Reference Rate from
time to time in effect plus the Applicable Reference Rate Margin
from time to time in effect; and
(b)on that portion maintained as an Interbank Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
Interbank Rate for such Interest Period plus the Applicable
Eurocurrency Rate Margin from time to time in effect.
The related Borrower shall pay to each Lender from time
to time amounts equal to the cost deemed to be incurred by
such Lender in accordance with the definition of Statutory
Reserves in connection with the making, funding or
maintaining of each Loan at the Interbank Rate made by such
Lender and resulting from such Lender's complying with the
reserve requirements under Regulation D. The amount of such
cost for any Interest Period shall be the excess of (a)
interest on the principal amount of such Loan outstanding
during such Interest Period calculated at a rate equal to
the product of such Lender's Statutory Reserves for such
Interest Period and the Interbank Rate for such Interest
Period over (b) the interest on such principal amount
calculated at the Interbank Rate for such Interest Period.
The amounts of such cost incurred during any such Interest
Period for such Loan at the Interbank Rate shall be notified
in writing by such Lender to the related Borrower promptly,
and in any event within 15 Business Days after such Interest
Period. The related Borrower will pay each amount so
notified to it promptly, and in any event within five (5)
Business Days after the date of such notification. A
certificate as to the amount and calculation of such cost,
submitted to the related Borrower by the Agent or any
Lender, shall, except for any manifest error, be conclusive
and binding for all purposes.
All Interbank Rate Loans shall bear interest from and
including the first day of the applicable Interest Period to
(but not including) the last day of such Interest Period at
the interest rate determined as applicable to such Interbank
Rate Loan.
3.2.2 Foreign Loan Interest Rates.
(a)Sterling Loans shall accrue interest during each Interest
Period applicable thereto at a rate equal to the sum of the
Sterling Rate for such Interest Period plus the Applicable
Eurocurrency Rate Margin from time to time in effect.
(b)FF Loans shall accrue interest during each Interest Period
applicable thereto at a rate equal to the sum of the FF Rate for
such Interest Period plus the Applicable Eurocurrency Rate Margin
from time to time in effect.
(c)DM Loans shall accrue interest during each Interest Period
applicable thereto at a rate equal to the sum of the DM Rate for
such Interest Period plus the Applicable Eurocurrency Rate Margin
from time to time in effect.
(d)Euro Loans shall accrue interest during each Interest Period
applicable thereto at a rate equal to the sum of the Euro Rate
for such Interest Period plus the Applicable Eurocurrency Rate
Margin from time to time in effect.
3.2.3 Post-Maturity Rates. After the date any principal amount
of any Loan is due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise), or after any other
monetary Obligation of a Borrower shall have become due and
payable, such Borrower shall pay, but only to the extent
permitted by law, interest (after as well as before judgment) (a)
on such amounts of Dollar Loans or other monetary Obligations
(other than Foreign Loans) at a rate per annum equal to the
Alternate Reference Rate plus a margin of 2.5% and (b) on such
amounts of Foreign Loans at a rate per annum equal to the related
Eurocurrency Rate plus a margin of 3.5%.
3.2.4 Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a)on the Stated Maturity Date therefor;
(b)on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c)with respect to Reference Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial Borrowing
hereunder;
(d)with respect to Eurocurrency Rate Loans, the last day of each
applicable Interest Period and, if such Interest Period shall
exceed three months, on the date three months following the start
of such Interest Period;
(e)with respect to any Reference Rate Loans converted into
Interbank Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c), on the date of such
conversion; and
(f)on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations
arising under this Agreement or any other Loan Document
after the date such amount is due and payable (whether on
the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3 Fees. The Borrowers agree to pay the fees set
forth in this Section 3.3. All such fees shall be non-refundable.
3.3.1 Commitment Fee. The Borrowers jointly and severally agree
to pay to the Agent for the account of the Lenders for the period
(including any portion thereof when any of its Commitments are
suspended by reason of the Borrowers' inability to satisfy any
condition of Article V) commencing on the Effective Date and
continuing through the final Commitment Termination Date, a
commitment fee on each Lender's share of the sum of the average
daily unused portion of (x) the Maximum Revolving Loan Commitment
Amount and (y) the Bairnco LC Commitment Amount at a rate equal
to:
(a)0.225% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was less than or equal to 35%, and (ii) ending on the
earlier of (A) the fifth day following delivery by Bairnco to the
Agent of the Compliance Certificate for the next Fiscal Quarter,
or (B) the date on which Bairnco fails to deliver to the Agent
such Compliance Certificate for the next Fiscal Quarter as
required under Section 7.1.1(c);
(b)0.300% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 35% but less than or equal to 45%, and
(ii) ending on the earlier of (A) the fifth day following
delivery by Bairnco to the Agent of the Compliance Certificate
for the next Fiscal Quarter, or (B) the date on which Bairnco
fails to deliver to the Agent such Compliance Certificate for the
next Fiscal Quarter as required under Section 7.1.1(c);
(c)0.400% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 45% but less than or equal to 55%, and
(ii) ending on the earlier of (A) the fifth day following
delivery by Bairnco to the Agent of the Compliance Certificate
for the next Fiscal Quarter, or (B) the date on which Bairnco
fails to deliver to the Agent such Compliance Certificate for the
next Fiscal Quarter as required under Section 7.1.1(c);
(d)0.500% for each period (i) commencing on the fifth day
following delivery by Bairnco to the Agent of the Compliance
Certificate for any Fiscal Quarter required under Section
7.1.1(c) showing that the Debt to Capital Ratio for such Fiscal
Quarter was greater than 55%, and (ii) ending on the earlier of
(A) the fifth day following delivery by Bairnco to the Agent of
the Compliance Certificate for the next Fiscal Quarter, or (B)
the date on which Bairnco fails to deliver to the Agent such
Compliance Certificate for the next Fiscal Quarter as required
under Section 7.1.1(c); and
(e)0.500%, if Bairnco fails to deliver the Compliance
Certificate for any Fiscal Quarter by the fifth day after the
date when such delivery is required under Section 7.1.1(c), for
the period from the date such Compliance Certificate was due to
but excluding the fifth day after the date such Compliance
Certificate is received and, thereafter, the pricing level
determined in accordance with the Debt-to-Capital Ratio set forth
in such Compliance Certificate;
provided, that, notwithstanding the foregoing, the
applicable rate for the commitment fee shall be 0.400% for
the period commencing on the Effective Date and ending on
the earlier of (A) the date that is 180 days thereafter, (B)
the date that is 60 days thereafter, if the Borrowers have
neither consummated the Signtech Acquisition nor entered
into a definitive agreement with respect thereto by such
date, or (C) the date on which Bairnco determines and
notifies the Agent in writing that the Signtech Acquisition
will not be consummated; provided, further that if the
Signtech Acquisition is consummated within 180 days of the
Effective Date notwithstanding the occurrence of the events
described in (B) or (C), then the applicable rate shall be
0.400% until the date that is 180 days after the Effective
Date and the Borrowers shall immediately pay the Lenders any
additional commitment fees they would have been required to
pay but for the occurrence of such events.
Such commitment fees shall be payable by such Borrowers in
arrears on each Quarterly Payment Date, commencing with the first
such day following the Effective Date, and on each Commitment
Termination Date. As among the Lenders, the allocable amount of
the commitment fee payable to each Lender shall be computed
giving effect to the fact that only Bank of America (and no other
Lender) is obligated to provide Loans in respect of the Foreign
Loan Commitment and the Foreign Dollar Loan Commitment.
In addition, the Borrowers jointly and severally agree to
pay all commitment fees that have accrued for the period from
December 31, 1999 to the Effective Date under the 1992 Agreement
on the First Quarterly Payment Date after the Effective Date at
the rate specified in the 1992 Agreement.
3.3.2 Letter of Credit Fees. Bairnco agrees to pay to the Agent
for the account of each Lender a letter of credit fee for each
Letter of Credit. The amount of such letter of credit fee on
each Letter of Credit shall be equal to the Applicable
Eurocurrency Rate Margin in effect on such date.
Letter of credit fees shall be payable in arrears quarterly
within thirty (30) days after demand therefor by Bank of
America for the period from and including the date upon
which such Letter of Credit was issued to and including the
date upon which such Letter of Credit expires or is
terminated. In addition, Bairnco agrees to pay all other
reasonable fees of Bank of America (at the standard rates of
Bank of America in effect from time to time) with respect to
each Letter of Credit (including, without limitation, all
fees associated with any transfer of Letter of Credit), such
fees to be payable on demand upon invoice by Bank of America
thereof.
3.3.3 Agent's Fee. The Borrowers jointly and severally agree to
pay to the Agent for its own account, fees in such amounts and
payable at such times as Bairnco and the Agent shall agree to
from time to time in a written instrument.
ARTICLE 4
CERTAIN EUROCURRENCY RATE AND OTHER PROVISIONS
SECTION 4.1 Eurocurrency Rate Lending Unlawful. If any Lender
shall determine (which determination shall, upon notice thereof
to the Borrowers and the Lenders, be conclusive and binding on
the Borrowers) that the introduction of or any change in or in
the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful,
for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a Eurocurrency Rate Loan of a certain
type, the obligations of all Lenders to make, continue, maintain
or convert any such Loans shall, upon such determination,
forthwith be suspended until such Lender shall notify the Agent
that the circumstances causing such suspension no longer exist,
and, in the case of Interbank Rate Loans, all Interbank Rate
Loans shall automatically convert into Reference Rate Loans, or
in the case of other Eurocurrency Rate Loans, such Loans shall be
repaid in full, in each case at the end of the then current
Interest Periods with respect thereto or sooner, if required by
such law or assertion.
SECTION 4.2 Deposits Unavailable. If the Agent shall have
determined that
(a)certificates of deposit or deposits, as the case may be, in
the relevant currency and amount and for the relevant Interest
Period are not available to Bank of America in its relevant
market; or
(b)by reason of circumstances affecting Bank of America's
relevant market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to Eurocurrency Rate Loans of
such type,
then, upon notice from the Agent to the Borrowers and the
Lenders, the obligations of all Lenders under Section 2.3 and
Section 2.4 to make or continue any Loans as, or to convert any
Loan into, Eurocurrency Rate Loans of such type shall forthwith
be suspended until the Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer
exist.
SECTION 4.3 Increased Eurocurrency Rate Loan Costs, etc. The
related Borrower agrees to reimburse each Lender for any increase
in the cost to such Lender of, or any reduction in the amount of
any sum receivable by such Lender in respect of, making,
continuing or maintaining (or of its obligation to make, continue
or maintain) any Loans as, or of converting (or of its obligation
to convert) any Loans into, Eurocurrency Rate Loans. Such Lender
shall promptly notify the Agent and the related Borrower in
writing of the occurrence of any such event, such notice to
state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for
such increased cost or reduced amount. Such additional amounts
shall be payable by such Borrower directly to such Lender within
five days of its receipt of such notice; and such notice shall,
in the absence of manifest error, be conclusive and binding on
such Borrower.
SECTION 4.4 Funding Losses. In the event any Lender shall
incur any loss or expense (including any loss or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to make, continue or maintain any
portion of the principal amount of any Loan as, or to convert any
portion of the principal amount of any Loan into, a Eurocurrency
Rate Loan) as a result of
(a)any conversion or repayment or prepayment of the principal
amount of any Eurocurrency Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto,
whether pursuant to Section 3.1 or otherwise;
(b)any Loans not being made as Eurocurrency Rate Loans in
accordance with the Borrowing Request therefor; or
(c)any Loans not being continued as, or converted into,
Interbank Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to the related
Borrower (with a copy to the Agent), such Borrower shall, within
five days of its receipt thereof, pay directly to such Lender
such amount as will (in the reasonable determination of such
Lender) reimburse such Lender for such loss or expense. Such
written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive
and binding on such Borrower.
SECTION 4.5 Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having
the force of law) of any court, central bank, regulator or other
governmental authority affects or would affect the amount of
capital required or expected to be maintained by any Lender or
any Person controlling such Lender, and such Lender determines
(in its sole and absolute discretion) that the rate of return on
its or such controlling Person's capital as a consequence of its
Commitments or the Loans (other than Reference Rate Loans) made
by such Lender is reduced to a level below that which such Lender
or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon
notice from time to time by such Lender to the related Borrower,
such Borrower shall pay promptly (but in any case within 30 days
after such notice) directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person
for such reduction in rate of return. A statement of such Lender
as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence
of manifest error, be conclusive and binding on such Borrower.
In determining such amount, such Lender may use any method of
averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
SECTION 4.6 Taxes. All payments by each Borrower of principal
of, and interest on, the Loans and all other amounts payable
hereunder shall be made free and clear of and without deduction
for any present or future income, excise, stamp or franchise
taxes and other taxes, fees, duties, withholdings or other
charges of any nature whatsoever imposed by any taxing authority,
but excluding franchise taxes and taxes imposed on or measured by
any Lender's net income or receipts (such nonexcluded items being
called "Taxes"). In the event that any withholding or deduction
from any payment to be made by any Borrower hereunder is required
in respect of any Taxes pursuant to any applicable law, rule or
regulation, then such Borrower will
(a)pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b)promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment
to such authority; and
(c)pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the
net amount actually received by each Lender will equal the full
amount such Lender would have received had no such withholding or
deduction been required.
Moreover if any Taxes are directly asserted against the Agent or
any Lender with respect to any payment received by the Agent or
such Lender hereunder, the Agent or such Lender may pay such
Taxes and such Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as is necessary
in order that the net amount received by such person after the
payment of such Taxes including any Taxes on such additional
amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for
the account of the respective Lenders, the required receipts or
other required documentary evidence, such Borrower shall
indemnify the Lenders for any incremental Taxes, interest or
penalties that may become payable by any Lender as a result of
any such failure. For purposes of this Section 4.6, a
distribution hereunder by the Agent or any Lender to or for the
account of any Lender shall be deemed a payment by such Borrower.
Upon the request of Bairnco or the Agent, each Lender that
is organized under the laws of a jurisdiction other than the
United States shall, prior to the due date of any payments under
the Notes, execute and deliver to the Bairnco and the Agent, on
or about the first scheduled payment date in each Fiscal Year,
one or more (as Bairnco or the Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001
or such other forms or documents (or successor forms or
documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Lender
is exempt from withholding or deduction of Taxes.
SECTION 4.7 Payments, Computations, etc. Unless otherwise
expressly provided, all payments by each Borrower pursuant to
this Agreement, the Notes or any other Loan Document shall be
made by such Borrower to the Agent for the pro rata account of
the Lenders entitled to receive such payment. All such payments
required to be made to the Agent shall be made, without setoff,
deduction or counterclaim, not later than 11:00 a.m., New York
time, on the date due, in same day or immediately available
funds, to such account as the Agent shall specify from time to
time by notice to the Borrowers. Funds received after that time
shall be deemed to have been received by the Agent on the next
succeeding Business Day. The Agent shall promptly remit in same
day funds to each Lender its share, if any, of such payments
received by the Agent for the account of such Lender. All
interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last
day) occurring during the period for which such interest or fee
is payable over a year comprised of 360 days. Whenever any
payment to be made shall otherwise be due on a day which is not a
Business Day, such payment shall (except as otherwise required by
clause (c) of the definition of the term "Interest Period" with
respect to Eurocurrency Rate Loans) be made on the next
succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection
with such payment.
SECTION 4.8 Sharing of Payments. If any Lender shall obtain
any payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) on account of any Loan (other
than pursuant to the terms of Sections 4.3, 4.4, 4.5 and 4.6) in
excess of its pro rata share of payments then or theretofore
obtained by all Lenders, such Lender shall purchase from the
other Lenders such participations in Loans made by them
(including participations in Foreign Loans) as shall be necessary
to cause such purchasing Lender to share the excess payment or
other recovery ratably with each of them; provided, however, that
if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the
purchase price to the ratable extent of such recovery together
with an amount equal to such selling Lender's ratable share
(according to the proportion of
(a)the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b)the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. Each
Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest
extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such
participation as fully as if such Lender were the direct creditor
of such Borrower in the amount of such participation. If under
any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this
Section to share in the benefits of any recovery on such secured
claim.
SECTION 4.9 Setoff. Each Lender shall, upon the occurrence of
any Default described in clauses (a) through (d) of Section 8.1.8
with respect to any Borrower or any Significant Subsidiary or,
with the consent of the Required Lenders, upon the occurrence of
any other Event of Default, have the right to appropriate and
apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such obligations) the
Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or
moneys of the Borrower then or thereafter maintained with such
Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8.
Each Lender agrees promptly to notify the related Borrower and
the Agent after any such setoff and application made by such
Lender; provided, further, that the failure to give such notice
shall not affect the validity of such setoff and application.
The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under
applicable law or otherwise) which such Lender may have.
SECTION 4.10 Use of Proceeds. Each Borrower shall apply the
proceeds of each Borrowing for general corporate purposes
(including without limitation the reimbursement of drawings under
Letters of Credit contemplated by Section 2.9) and for Permitted
Acquisitions; provided, further, that no proceeds of any Loan
will be used to acquire any equity security of a class which is
registered pursuant to Section 12 of the Exchange Act or any
"margin stock", as defined in F.R.S. Board Regulation U in either
case in any manner that would cause the borrowing or the
application of such proceeds to violate the Exchange Act or the
Regulations of the Board of Governors of the Federal Reserve
System.
ARTICLE 5
CONDITIONS TO BORROWING
SECTION 5.1 Initial Borrowing and Reallocation of Percentages.
At the Effective Date, the Lenders shall be deemed to have
refinanced under this Agreement as the initial Borrowing
hereunder all Loans outstanding under the 1992 Agreement on such
date and shall make all Loans requested be on the Effective Date
pursuant to a Borrowing Request properly made under the 1992
Agreement as Loans hereunder. In addition, at the Effective Date
each Letter of Credit outstanding under the 1992 Agreement on
such date shall remain in full force and effect but shall be
deemed a Letter of Credit outstanding under this Agreement.
On the Effective Date, without executing an Assignment and
Acceptance, each Lender that will have a greater Percentage upon
the Effective Date than its Percentage (under and as defined in
the 1992 Agreement) immediately before the Effective Date (each a
"Purchasing Lender") shall be deemed to have automatically
purchased assignments pro rata from each Lender that will have a
smaller Percentage upon the Effective Date (each a "Selling
Lender") than its Percentage (under and as defined in the 1992
Agreement) immediately before the Effective Date in all such
Selling Lenders' rights and obligations under this Agreement and
the other Loan Documents with respect to Selling Lender's
Revolving Loan Commitments (other than any Foreign Loan
Commitment) and Revolving Loans (other than any Foreign Loans) so
that, after giving effect to such assignments, each Lender shall
have its respective Percentage as set forth opposite its
signature hereto (as adjusted as required under the definition of
Percentage) of the Revolving Loan Commitments (other than any
Foreign Loan Commitment) and Revolving Loans (other than Foreign
Loans). Each such purchase hereunder shall be at par for a
purchase price equal to the principal amount of the Revolving
Loans assigned and without recourse, representation or warranty,
except that each Selling Lender shall be deemed to represent and
warrant to each Purchasing Lender that the Assigned Rights and
Obligations of such Selling Lender are not subject to any Liens
created by that Selling Lender.
The obligations of the Lenders to fund the initial Borrowing
shall be subject to the prior or concurrent satisfaction of each
of the conditions precedent set forth in this Section 5.1.
5.1.1 Resolutions, etc. The Agent shall have received from each
Obligor a certificate, dated the date of the initial Borrowing,
of its Secretary or Assistant Secretary as to
(a)resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of
this Agreement, the Notes and each other Loan Document to be
executed by it; and
(b)the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and
each other Loan Document executed by it,
upon which certificate each Lender may conclusively rely
until it shall have received a further certificate of the
Secretary or Assistant Secretary of such obligor cancelling
or amending such prior certificate.
5.1.2 Delivery of Other Loan Documents. The Agent shall have
received duly executed copies of the amended and restated
security agreement, the amended and restated guaranty and the
amended and restated pledge agreement and such other assurances,
certificates and documents, including, without limitation, with
respect to the continued perfection of the security interests
granted under the Loan Documents and the appointment of an agent
for service for English Sub, German Sub and French Sub, as the
Agent or Required Lenders may reasonably require. The Agent
shall have received, for the account of each Lender, the Notes
duly executed and delivered by the Borrowers, whereupon the Agent
shall return the Original Notes.
5.1.3 Opinion of Counsel. The Agent shall have received the
opinion, dated the Effective Date and addressed to the Agent and
all Lenders, from Holland & Knight LLP, counsel to the Obligors,
in form and substance satisfactory to the Agent and its counsel.
5.1.4 Closing Fees, Expenses, etc. The Agent shall have received
for its own account, or for the account of each Lender, as the
case may be, all fees, costs and expenses as separately agreed in
writing between the Agent and the Borrowers, and if then
invoiced, due and payable pursuant to Section 10.3.
5.1.5 Year 2000 Readiness. The Agent and Lenders shall be
satisfied that Bairnco and its Subsidiaries have performed a
comprehensive review and assessment taken all actions that are
reasonably necessary to insure that (i) Bairnco and its
Subsidiaries and (ii) all customers, suppliers and vendors of
Bairnco and its Subsidiaries that are material to their
respective businesses are or will be Year 2000 Compliant in a
timely manner, where "Year 2000 Compliant" means, with respect to
any Person, that all software, hardware, firmware, goods or
systems utilized by or material to the business operations or
financial condition of such Person will properly perform date
sensitive functions after January 1, 2000.
SECTION 5.2 All Borrowings. The obligation of each Lender to
fund any Loan on the occasion of any Borrowing (including the
initial Borrowing) shall be subject to the satisfaction of each
of the conditions precedent set forth in this Section 5.2.
5.2.1 Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Borrowing (but, if any Default of
the nature referred to in Section 8.1.5 shall have occurred with
respect to any other Indebtedness, without giving effect to the
application, directly or indirectly, of the proceeds thereof) the
following statements shall be true and correct:
(a)the representations and warranties set forth in Article 6
(excluding, however, those contained in Section 6.7) shall be
true and correct with the same effect as if then made (unless
stated to relate solely to an early date, in which case such
representations and warranties shall be true and correct as of
such earlier date);
(b)except as disclosed by the Borrowers to the Agent and the
Lenders pursuant to Section 6.7
(i)no labor controversy, litigation, arbitration or governmental
investigation or proceeding shall be pending or, to the knowledge
of any Borrower, threatened against any Borrower or any of its
Subsidiaries which may reasonably be expected to have a
materially adverse effect on consolidated business, operations,
assets, revenues, properties or prospects of Bairnco and its
Subsidiaries or which purports to affect the legality, validity
or enforceability of this Agreement, the Notes or any other Loan
Document; and
(ii)no development shall have occurred in any labor controversy,
litigation, arbitration or governmental investigation or
proceeding disclosed pursuant to Section 6.7 which may reasonably
be expected to have a materially adverse effect on the
consolidated businesses, operations, assets, revenues, properties
or prospects of Bairnco and its Subsidiaries; and
(c)no Default shall have then occurred and be continuing; and no
Borrower, nor any other Obligor, nor any of their Subsidiaries
are in violation of any law or governmental regulation or court
order or decree which violation may reasonably be expected to
have a materially adverse effect on the consolidated businesses,
operations, assets, revenues, properties or prospects of Bairnco
and its Subsidiaries.
5.2.2 Borrowing Request. The Agent shall have received a
Borrowing Request for such Borrowing. Each of the delivery of a
Borrowing Request and the acceptance by the related Borrower of
the proceeds of such Borrowing shall constitute a representation
and warranty by such Borrower that on the date of such Borrowing
(both immediately before and after giving effect to such
Borrowing and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct.
5.2.3 Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of each Borrower or any
of its Subsidiaries or any other Obligors shall be satisfactory
in form and substance to the Agent and its counsel; the Agent and
its counsel shall have received all information, approvals,
opinions, documents or instruments as the Agent or its counsel
may reasonably request.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into
this Agreement and to make Loans hereunder, the Borrowers jointly
and severally represent and warrant unto the Agent and each
Lender as set forth in this Article 6.
SECTION 6.1 Organization, etc. Each Borrower and each of its
Subsidiaries is a corporation validly organized and existing and
in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the
nature of its business requires such qualification, except where
failure to so qualify would not have a material adverse effect on
Bairnco and its Subsidiaries on a consolidated basis, and has
full power and authority and holds all material requisite
governmental licenses, permits and other approvals to enter into
and perform its Obligations under this Agreement, the Notes and
each other Loan Document to which it is a party and to own and
hold under lease its property and to conduct its business
substantially as currently conducted by it.
SECTION 6.2 Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each Borrower of this
Agreement, the Notes and each other Loan Document executed or to
be executed by it, and the execution, delivery and performance by
each other Obligor of each Loan Document executed or to be
executed by it are within such Borrower's and each such Obligor's
corporate powers, have been duly authorized by all necessary
corporate action and do not
(a)contravene such Borrower's or any such Obligor's Organic
Documents;
(b)contravene any contractual restrictions, law or governmental
regulation (subject in the case of the pledge of stock of French
Sub, to the approvals referred to in Section 6.3) or court decree
or order binding on or affecting such Borrower or any such
Obligor; or
(c)result in, or require the creation or imposition of, any Lien
on any of any Obligor's properties other than Liens created under
the Loan Documents.
SECTION 6.3 Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance by any Borrower or any other Obligor of this
Agreement, the Notes or any other Loan Document to which it is a
party, except for approvals of a French court and of the Treasury
Department of the French Finance Ministry that may be required
prior to exercise by the Agent of its rights with respect to the
pledge of stock of French Sub. No Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company", of a "holding company", or
an "affiliate" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4 Validity, etc. This Agreement constitutes, and the
Notes and each other Loan Document executed by any Borrower will,
on the due execution and delivery thereof, constitute, the legal,
valid and binding obligations of such Borrower enforceable in
accordance with their respective terms (subject, in the case of
the pledge of stock of French Sub, to the approvals referred to
in Section 6.3); and each Loan Document executed pursuant hereto
by each other Obligor will, on the due execution and delivery
hereof by such Obligor, be the legal, valid and binding
obligation of such Obligor enforceable in accordance with its
terms.
SECTION 6.5 Financial Information. The consolidated and (as to
Bairnco's directly-held Subsidiaries) consolidating balance
sheets of Bairnco as at December 31, 1998 and September 30, 1999,
and the related consolidated and (as to Bairnco's directly-held
Subsidiaries) consolidating statements of income of Bairnco as at
December 31, 1998 and September 30, 1999, and the consolidated
statements of cash flows of Bairnco as at December 31, 1998 and
September 30, 1999, copies of which have been furnished to the
Agent and each Lender, have been prepared in accordance with GAAP
consistently applied, and present fairly the consolidated
financial condition of the corporations covered thereby as at the
dates thereof and the results of their operations for the periods
then ended.
SECTION 6.6 No Material Adverse Change. Since December 31,
1998, there has been no material adverse change in the financial
condition, operations, assets, business, properties or prospects
of Bairnco and its Subsidiaries on a consolidated basis.
SECTION 6.7 Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of the Borrowers, threatened
litigation, action, proceeding, or labor controversy affecting
any Borrower or any of its Subsidiaries, or any of their
respective properties, businesses, assets or revenues, which may
materially adversely affect the financial condition, operations,
assets, business, properties or prospects of Bairnco and its
Subsidiaries on a consolidated basis or which purports to affect
the legality, validity or enforceability of this Agreement, the
Notes or any other Loan Document, except as disclosed in Item 6.7
("Litigation") of the Disclosure Schedule.
SECTION 6.8 Subsidiaries. The Borrowers have no Subsidiaries,
except those Subsidiaries
(a)which are identified in Item 6.8 ("Existing Subsidiaries") of
the Disclosure Schedule; or
(b)which are permitted to have been acquired or created in
accordance with Section 7.2.4 or 7.2.8.
SECTION 6.9 Ownership of Properties. Each Borrower and each of
its Subsidiaries owns good and marketable title to all of its
properties and assets, real and personal, tangible and
intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and
clear of all Liens, charges or claims (including infringement
claims with respect to patents, trademarks, copyrights and the
like but excluding the claim asserted by Keene Creditors Trust to
certain patents and real property of Bairnco and Arlon in the
"Properties Lawsuit" as defined and described in Bairnco's Annual
Report on Form 10-k for the year ended December 31, 1998) except
as permitted pursuant to Section 7.2.2.
SECTION 6.10 Taxes. Each Borrower and each of its Subsidiaries
has filed all tax returns and reports required by law to have
been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or material
charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 6.11 Pension and Welfare Plans. During the twelve-
consecutive-month period prior to the date of the execution and
delivery of this Agreement and prior to the date of any Borrowing
hereunder, no steps have been taken to terminate any Pension
Plan, and no contribution failure has occurred with respect to
any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might result in
the incurrence by any Borrower or any member of the Controlled
Group of any material liability, fine or penalty. No Borrower
nor any member of the Controlled Group has any contingent
liability with respect to any postretirement benefit under a
Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
SECTION 6.12 Environmental Warranties. Except as set forth in
Item 6.12 ("Environmental Matters") of the Disclosure Schedule:
(a)all facilities and property (including underlying
groundwater) owned or leased by any Borrower or any of its
Subsidiaries have been, and continue to be, owned or leased by
such Borrower and its Subsidiaries in material compliance with
all Environmental Laws;
(b)there have been no past, and there are no pending or
threatened
(i)complaints, notices or requests for information received by
any Borrower or any of its Subsidiaries with respect to any
alleged violation of any Environmental Law, or
(ii)notices or inquiries to any Borrower or any of its
Subsidiaries regarding potential liability under any
Environmental Law;
(c)there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by any
Borrower or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a
material adverse effect on the financial condition, operations,
assets, business, properties or prospects of Bairnco and its
Subsidiaries on a consolidated basis;
(d)each Borrower and its Subsidiaries have been issued and are
in material compliance with all material permits, certificates,
approvals, licenses and other authorizations relating to
environmental matters and necessary or desirable for their
businesses;
(e)no property now or previously owned or leased by any Borrower
or any of its Subsidiaries is listed or proposed for listing
(with respect to owned property only) on the National Priorities
List pursuant to CERCLA, on the CERCLIS or on any similar state
list of sites requiring investigation or clean-up;
(f)there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now
or previously owned or leased by any Borrower or any of its
Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the
financial condition, operations, assets, business, properties or
prospects of Bairnco and its Subsidiaries on a consolidated
basis;
(g)no Borrower nor any Subsidiary of any Borrower has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed
for listing on the National Priorities List pursuant to CERCLA,
on the CERCLIS or on any similar state list or which is the
subject of federal, state or local enforcement actions or other
investigations which may lead to claims against such Borrower or
such Subsidiary thereof for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA,
that, singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the financial
condition, operations, assets, business, properties or prospects
of Bairnco and its Subsidiaries on a consolidated basis;
(h)there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by any
Borrower or any Subsidiary of any Borrower that, singly or in the
aggregate, have, or may reasonably be expected to have, a
material adverse effect on the financial condition, operations,
assets, business, properties or prospects of Bairnco and its
Subsidiaries on a consolidated basis; and
(i)no conditions exist at, on or under any property now or
previously owned or leased by any Borrower or any Subsidiary of
any Borrower which, with the passage of time, or the giving of
notice or both, would give rise to liability under any
Environmental Law, that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the
financial condition, operations, assets, business, properties or
prospects of Bairnco and its Subsidiaries on a consolidated
basis.
SECTION 6.13 Regulations U and X. No Borrower is engaged in
the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any Loans will be used
for a purpose which violates, or would be inconsistent with
F.R.S. Board Regulation U or X. Terms for which meanings are
provided in F.R.S. Board Regulation U or X or any regulations
substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.14 Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the
Borrowers in writing to the Agent or any Lender for purposes of
or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of the Borrowers to the Agent
or any Lender hereunder and certified by an Authorized Officer of
a Borrower will be, true and accurate in every material respect
on the date as of which such information is dated or certified
and as of the date of execution and delivery of this Agreement by
the Agent and such Lender, and such information is not, or shall
not be, as the case may be, incomplete by omitting to state any
material fact necessary to make such information not misleading;
it being understood however, that month-end information contained
in financial statements prepared internally for the management of
Bairnco and provided to the Agent, or any Lender shall not be
considered inaccurate or incomplete for purposes of this Section
6.14 to the extent such financial information is subsequently
modified in connection with quarter-end adjustments to such
financial statements. It is agreed with respect to the Loan
Documents that projections are not deemed to be factual
information.
SECTION 6.15 No Lender Liability Claims. Neither the Agent nor
any Lender has by any act or omission prior to the date of this
Agreement given rise to any defense, counterclaim, or right of
setoff against, or liability of, the Agent or any Lender, and
each Borrower hereby waives any such defense, right of setoff,
counterclaim, and liability.
SECTION 6.16 Reaffirmation of Representations, etc. The
Borrowers are in compliance with all representations, warranties,
covenants and conditions of each and every Loan Document,
including, without limitation, all representations, warranties,
covenants and conditions of the Security Agreement, the Pledge
Agreement, and the Foreign Collateral Documents, and no such
representation, warranty, covenant or condition has been waived,
amended or modified by the Agent or the Lenders, except as
expressly set forth in this Agreement or as superseded hereby.
SECTION 6.17 Year 2000 Problems. Each Borrower has
(a) completed a review and assessment of all areas within its and
each of its Subsidiaries' business and operations (including
those affected by customers and vendors) that could be adversely
affected by the "Year 2000 Problem" (that is, the risk that
computer applications and devices containing imbedded computer
chips used by any Borrower or any of its Subsidiaries (or their
respective customers and vendors) may be unable to recognize and
perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (b) developed a
plan and timeline for addressing the Year 2000 Problem on a
timely basis, and (c) substantially completed implementation of
that plan in accordance with that timetable. The Year 2000
Problem has not had, and each Borrower reasonably believes that
the Year 2000 Problem will not have, a material adverse effect on
the condition (financial or otherwise), business, assets,
operations or prospects of Bairnco and its Subsidiaries on a
consolidated basis.
ARTICLE 7
COVENANTS
SECTION 7.1 Affirmative Covenants. The Borrowers jointly and
severally agree with the Agent and each Lender that, until all
Commitments have terminated and all Obligations have been paid
and performed in full, the Borrowers will perform the obligations
set forth in this Section 7.1.
7.1.1 Financial Information, Reports, Notices, etc. The
Borrowers will furnish, or will cause to be furnished, to each
Lender and the Agent copies of the following financial
statements, reports, opinions, notices and information:
(a)as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal
Year of Bairnco, consolidated and consolidating balance sheets of
Bairnco as of the end of such Fiscal Quarter and consolidated and
consolidating statements of income and consolidated statements of
cash flows of Bairnco for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, certified by the chief financial
Authorized Officer of Bairnco;
(b)as soon as available and in any event within 90 days after
the end of each Fiscal Year of Bairnco, a copy of the annual
consolidated audit report for such Fiscal Year for Bairnco,
including therein consolidated balance sheets and statements of
income of Bairnco as of the end of such Fiscal Year and
consolidated statements of cash flows of Bairnco for such Fiscal
Year, in each case certified (without any Impermissible
Qualification) in a manner acceptable to the Agent and the
Required Lenders by Arthur Andersen LLP or other independent
public accountants acceptable to the Agent and the Required
Lenders, together with a certificate from such accountants
containing a Computation of, and showing compliance with, each of
the financial ratios and restrictions contained in Section 7.2.3
and to the effect that, in making the examination necessary for
the signing of such annual report by such accountants, they have
not become aware of any Default that has occurred and is
continuing, or, if they have become aware of such Default,
describing such Default and the steps, if any, being taken to
cure it; and an unaudited report for such Fiscal Year for Bairnco
including consolidating balance sheets and statements of income
as of the end of such Fiscal Year certified by the chief
financial Authorized Officer of Bairnco;
(c)as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters, and within 90
days after the end of the Fiscal Year, a certificate (a
"Compliance Certificate") substantially in the form of Exhibit G,
executed by the chief financial Authorized Officer of Bairnco,
showing (in reasonable detail and with appropriate calculations
and computations in all respects satisfactory to the Agent) the
Interest Coverage Ratio and compliance with the financial
covenants set forth in Section 7.2.3;
(d)as soon as possible and in any event within three days after
the occurrence of each Default, a statement of the chief
financial Authorized Officer of Bairnco setting forth details of
such Default and the action which Bairnco has taken and proposes
to take with respect thereto;
(e)as soon as possible and in any event within three days after
(x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, or labor
controversy described in Section 6.7 or (y) the commencement of
any labor controversy, litigation, action, proceeding of the type
described in Section 5.2.1(b) (i), notice thereof and upon
request of the Agent, copies of all documentation relating
thereto;
(f)promptly after the sending or filing thereof, copies of all
reports which Bairnco sends to any of its security holders, and
all reports and registration statements which Bairnco or any of
its Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(g)immediately upon becoming aware of any of the following that
is material to Bairnco and its Subsidiaries on a consolidated
basis, notice thereof and copies of all documentation relating
thereto: the institution of any steps by any Borrower or any
other Person to terminate any Pension Plan, or the failure to
make a required contribution to any Pension Plan if such failure
is sufficient to give rise to a Lien under section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan
which could result in the requirement that the Borrower furnish a
bond or other security to the PBGC or such Pension Plan, or the
occurrence of any event with respect to any Pension Plan which
could result in the incurrence by any Borrower of any material
liability, fine or penalty, or any material increase in the
contingent liability of any Borrower with respect to any post-
retirement Welfare Plan benefit;
(h)such other information respecting the condition or
operations, financial or otherwise, of any Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
7.1.2 Compliance with Laws, etc. Each Borrower will, and will
cause each of its Subsidiaries to, comply in all material
respects with all applicable laws, rules, regulations and orders,
such compliance to include (without limitation):
(a)the maintenance and preservation of its corporate existence
and qualification as a foreign corporation; and
(b)the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its
property except to the extent being diligently contested in good
faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books.
7.1.3 Maintenance of Properties. Each Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect
and keep its properties in good repair, working order and
condition, and make necessary and proper repairs, renewals and
replacements so that its business carried on in connection
therewith may be properly conducted at all times unless such
Borrower determines in good faith that the continued maintenance
of any of its properties is no longer economically desirable.
7.1.4 Insurance. Each Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with
responsible insurance companies insurance with respect to its
properties and business (including business interruption
insurance) against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar
businesses and will, upon request of the Agent, furnish to each
Lender at reasonable intervals a certificate of an Authorized
Officer of such Borrower setting forth the nature and extent of
all insurance maintained by such Borrower and its Subsidiaries in
accordance with this Section.
7.1.5 Books and Records. Each Borrower will, and will cause each
of its Subsidiaries to, keep books and records which accurately
reflect all of its business affairs and transactions and permit
the Agent or any of its representatives (and if a Default exists,
each Lender or any of its representatives), at reasonable times
and intervals, to visit all of its offices, to discuss its
financial matters with its officers and independent public
accountant (and each Borrower hereby authorizes such independent
public accountant to discuss such Borrower's financial matters
with each Lender or its representatives whether or not any
representative of such Borrower is present) and to examine (and,
at the expense of such Borrower, photocopy extracts from) any of
its books or other corporate records. Each Borrower shall pay
any fees of such independent public accountant incurred in
connection with the Agent's or any Lender's exercise of its
rights pursuant to this Section.
7.1.6 Environmental Matters. Each Borrower will, and will cause
each of its Subsidiaries to:
(a)use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all Hazardous
materials in material compliance with all applicable
Environmental Laws;
(b)immediately (and in any event within three (3) days) notify
the Agent and, at the Agent's request, provide copies upon
receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or
compliance with Environmental Laws, and shall promptly cure and
have dismissed with prejudice any actions and proceedings
relating to compliance with Environmental Laws that are material
to Bairnco and its Subsidiaries on a consolidated basis; and
(c)provide such information and certifications which the Agent
may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
7.1.7 Year 2000 Compliance. Each Borrower will promptly notify
the Agent and the Lenders in the event any Borrower discovers or
determines that the "Year 2000 Problem" (that is, the risk that
computer applications and devices containing imbedded computer
chips used by any Borrower Party or any of its Subsidiaries (or
their respective customers and vendors) may be unable to
recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999) has,
or is reasonably expected to have, a material adverse effect on
the condition (financial or otherwise), business, assets,
operations or prospects of Bairnco and its Subsidiaries on a
consolidated basis.
SECTION 7.2 Negative Covenants. The Borrowers jointly and
severally agree with the Agent and each Lender that, until all
Commitments have terminated and all Obligations have been paid
and performed in full, the Borrower will perform the obligations
set forth in this Section 7.2.
7.2.1 Indebtedness. The Borrowers will not, and will not permit
or suffer any of their Subsidiaries to, create, incur, assume or
suffer to exist or otherwise become or be liable in respect of
any Indebtedness, other than, without duplication, the following:
(a)Indebtedness in respect of the Loans and other Obligations;
(b)Indebtedness existing as of the Effective Date which is
identified in Item 7.2.1(b) to the Disclosure Schedule
("Indebtedness");
(c)other secured or unsecured Indebtedness of the Borrowers and
their Subsidiaries in respect of foreign currency in an aggregate
amount not to exceed $12,000,000; provided, however, that no such
Indebtedness shall be secured by any property pledged as
collateral for the Loans.
(d)Indebtedness which is incurred by the Borrowers or any of
their Subsidiaries to a vendor or financier of any assets
permitted to be acquired pursuant to Section 7.2.2 to finance its
acquisition of such assets in an aggregate principal amount not
to exceed the least of (i) the cost of such assets, (ii) the fair
market value of such assets, or (iii) $20,000,000 at any time
outstanding;
(e)unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal
trade terms in connection with purchases of goods and services
and Indebtedness in respect of (i) surety bonds, (ii) performance
guaranties by Bairnco issued in lieu of surety bonds in the
ordinary course of business, and (iii) guaranties not to exceed
an aggregate of $1,000,000, but excluding Indebtedness incurred
through the borrowing of money or Contingent Liabilities other
than in respect of surety bonds or such guaranties);
(f)Indebtedness in respect of Capitalized Lease Liabilities to
the extent permitted by Section 7.2.6;
(g)Indebtedness of any Subsidiary of Bairnco (other than a New
Sub) owing to Bairnco or any other Subsidiary of Bairnco and
unsecured Indebtedness of a Borrower owing to its Subsidiaries in
all cases pledged to the Agent under the Loan Documents and
evidenced by an Intercompany Note in the Agent's possession;
(h)Subordinated Debt maturing after the Stated Maturity Date in
the aggregate not in excess of Bairnco's consolidated
stockholders' equity;
(i)Indebtedness owing to (i) a Lender or an Affiliate of a
Lender in respect of Indebtedness other than a Loan, which
Indebtedness is cross-collateralized with the Loans contemplated
hereby as long as (A) the aggregate amount of such Indebtedness
available to be borrowed does not exceed $8,000,000, and (B) the
aggregate amount of such Indebtedness outstanding at any time
does not exceed $8,000,000; and (ii) Indebtedness owing to First
Union National Bank ("FUNB") in respect of the letter of credit
issued by FUNB for the benefit of Toronto Dominion Bank on the
account of Bairnco in the amount of CAN$3,000,000 which
indebtedness is cross-collateralized with the Loan contemplated
hereby "FUNB Letter of Credit"); provided, however, that the caps
on Indebtedness identified in subsection (i), clauses (A) and
(B), shall automatically increase (x) to $10,000,000, upon the
expiration or termination of the FUNB Letter of Credit, and (y)
dollar for dollar with each payment made by Bairnco to FUNB in
respect of the FUNB Letter of Credit (taking into account the
current rate of exchange for conversion of Canadian dollars to
U.S. dollars); and
(j)So long as at the time of incurrence thereof no Default or
Event of Default has occurred and is continuing or would occur
immediately after giving effect thereto, Bairnco and Arlon may
from time to time after the Effective Date issue debt securities
in aggregate principal amount not to exceed $25,000,000;
provided, that (i) such securities are privately placed, (ii) the
terms of such Indebtedness (including the representations and
warranties, covenants, events of default and other provisions
thereof) are customary and appropriate for privately placed debt
securities and no more restrictive or burdensome to Bairnco or
Arlon than those of any other Indebtedness of Bairnco or Arlon
and any scheduled prepayments thereof that are required before
the stated Maturity Date have been approved by the Required
Lenders, and (iii) the net proceeds of such Indebtedness in an
aggregate amount in excess of $20,000,000 are applied in
accordance with the provisions of Section 3.1.
(k)Indebtedness of Bairnco in respect of guaranties by Bairnco
of Indebtedness of Subsidiaries (other than New Subs) permitted
under the foregoing clauses (a) through (j).
Notwithstanding the foregoing, no additional Indebtedness
otherwise permitted by Subsections (c), (d), (f), (g), (h) or (i)
shall be permitted if after giving effect to the incurrence
thereof, any Default shall have occurred and be continuing.
7.2.2 Liens. Each Borrower will not, and will not permit any of
its Subsidiaries to, create incur, assume or suffer to exist any
Lien upon any of its property, revenues or assets, whether now
owned or hereafter acquired, except:
(a)Liens securing payment of the Obligations, granted pursuant
to any Loan Document;
(b)Liens granted prior to the Effective Date to secure payment
of Indebtedness of the type permitted and described in clause (b)
of Section 7.2.1;
(c)Liens granted to secure payment of Indebtedness of the type
permitted and described in Section 7.2.1(d) and covering only
those assets acquired with the proceeds of such Indebtedness;
(d)Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
(e)Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums
not overdue or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
(f)Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits or to secure
performance of tenders, statutory obligations, leases and
contracts (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety or
appeal bonds;
(g)judgment Liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies;
(h)Liens on assets of the Foreign Subsidiaries granted to secure
Indebtedness of the Borrowers and their Subsidiaries in respect
of foreign currency in an aggregate amount not to exceed
$12,000,000 permitted under Subsection 7.2.l(c) above;
(i)Liens granted on the collateral security subject to the Lien
of the Loan Documents to secure the Indebtedness permitted under
Subsection 7.2.1(i) and (j) above; and
(j)Liens on assets sold and leased back to secure Capitalized
Lease Liabilities permitted under Subsection 7.2.1(f) above.
7.2.3 Financial Condition. The Borrowers will not permit:
(a)Net Worth. Their Net Worth to be less than the sum of (i)
$40,000,000, plus (ii) 60% of Cumulative Net Income plus (iii)
60% of the net cash proceeds of stock (other than the proceeds of
the issuance of stock to directors or employees pursuant to the
exercise of stock options) sold by Bairnco after December 31, 1999.
(b)Debt/Capital Test. The ratio for Bairnco and its
Subsidiaries of (i) all Consolidated Funded Debt to (ii) the sum
of (A) Consolidated Funded Debt, plus (B) Stockholders'
Investment (the "Debt to Capital Ratio") to exceed 65% for any
fiscal quarter ending on or before December 31, 2001 and 60%
thereafter.
(c)Interest Coverage Ratio. The ratio for Bairnco and its
Subsidiaries of (i) consolidated earnings before deducting
interest and taxes (excluding non-recurring gains and charges) to
(ii) consolidated interest expense for Indebtedness (including,
without limitation, Subordinated Debt and Capitalized Lease
Liabilities) (the "Interest Coverage Ratio") to be less than
2.50:1 for any Fiscal Quarter.
In performing such calculations, the effect of the initial
adjustments made by Bairnco and its Subsidiaries to comply
with Statements of Financial Accounting Standards 106 and
109 shall be disregarded (i.e. all calculations to test
compliance with the foregoing financial covenants shall be
made after adding back or subtracting out the initial
adjustments made in order to comply with such Statements of
Financial Accounting Standards).
7.2.4 Investments. Each Borrower will not, and will not permit
any of its Subsidiaries to, make incur, assume or suffer to exist
any Investment in any other Person, except:
(a)Investments existing on the Effective Date and identified in
Item 7.2.4(a) of the Disclosure Schedule ("Ongoing Investments");
(b)Cash Equivalent Investments;
(c)without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.1; and
(d)Investments resulting from transactions permitted by Section
7.2.8;
(e)equity Investments by any Borrower in any of its Obligor
Subsidiaries, or by any such Obligor Subsidiary in any of its
Obligor Subsidiaries, of (i) up to $10,500,000 in the aggregate
in additional equity for the English Sub, the German Sub, the
French Sub, and Atlantic Service Company, Ltd., and (ii) up to
$10,000,000 in the aggregate in equity for newly-formed
Subsidiaries of Bairnco or its Subsidiaries ("New Subs"); and
(f)any other Investment approved in writing by the Required
Lenders;
provided, however, that:
(A)any Investment which when made complies with the requirements
of the definition of the term "Cash Equivalent Investment" may
continue to be held notwithstanding that such Investment if made
thereafter would not comply with such requirements;
(B)no Investment otherwise permitted by Subsections (d) or (e)
above shall be permitted to be made if, immediately before or
after giving effect thereto, any Default shall have occurred and
be continuing; and
(C)no Obligor may incur any liabilities in respect of, nor
additional Investments in, any New Sub; and no New Sub shall
incur liabilities in an amount or engage in business for which it
could be deemed thinly-capitalized.
7.2.5 [INTENTIONALLY OMITTED]
7.2.6 Rental Obligations. The Borrowers will not, and will not
permit any of their Subsidiaries to, enter into at any time any
arrangement which involves the leasing by any Borrower or any of
its Subsidiaries from any lessor of any real or personal property
(or any interest therein), except (i) Capitalized Lease
Liabilities incurred in connection with a sale and leaseback of
assets the net proceeds of which were applied to reduce the
Commitment Amounts pursuant to Section 2.2.3, and (ii)
arrangements which, together with all other such arrangements
which shall then be in effect, will not require the payment in
any Fiscal Year of an aggregate amount of rentals by the
Borrowers and their Subsidiaries in excess of (excluding
escalations resulting from a rise in the consumer price or
similar index) the greater of (a) $10,000,000 or (b) 20% of
consolidated stockholders' equity of Bairnco for such Fiscal
Year; provided, however, that any calculation made for purposes
of this Section shall exclude any amounts required to be expended
for maintenance and repairs, insurance, taxes, assessments, and
other similar charges.
7.2.7 Take or Pay Contracts. Each Borrower will not, and will
not permit any of its Subsidiaries to, enter into or be a party
to any arrangement for the purchase of materials, supplies, other
property or services if such arrangement by its express terms
requires that payment be made by such Borrower or such Subsidiary
regardless of whether such materials, supplies, other property or
services are delivered or furnished to it.
7.2.8 Consolidation, Merger, etc.
(a)Without the prior written consent of the Required Lenders,
each Borrower will not, and will not permit any of its
Subsidiaries to:
(i)liquidate or dissolve;
(ii)consolidate with, or merge into or with, any other
corporation; or
(iii)purchase or otherwise acquire all or substantially all of
the stock or other ownership interests of any Person or all or
substantially all of the assets of any Person (or of any division
thereof).
(b)Notwithstanding the prohibitions of Subsection (a) above:
(i)any wholly-owned Subsidiary (other than any New Sub) may
liquidate or dissolve voluntarily into, and may merge with and
into, such Borrower or any other wholly-owned Subsidiary (other
than any New Sub);
(ii)all or substantially all of the assets or stock of any
Subsidiary (other than any New Sub) may be purchased or otherwise
acquired by any Borrower or any other wholly-owned Subsidiary
(other than any New Sub);
(iii)Borrowers and their Subsidiaries may make the Investment in
the New Subs permitted under Section 7.2.4(e)(ii), and each New
Sub may enter into any such transaction with a party other than a
Borrower or another Subsidiary so long as after giving effect to
such transaction such New Sub could not be deemed to be thinly
capitalized;
(iv)so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, Bairnco, Arlon or Kasco
or any Obligor may purchase substantially all of the assets of
Signtech Corporation for an aggregate consideration, payable in
cash, not to exceed $20,000,000 (the "Signtech Acquisition"); and
(v)a Borrower or an Obligor may acquire the stock or assets of
any other Person if no Default or Event of Default has occurred
and is continuing or would result from the consummation thereof,
and Bairnco and its Subsidiaries are in compliance on a pro forma
basis with Section 7.2.3 for the Fiscal Quarter during which such
acquisition occurs (determined as if such acquisition had
occurred at the beginning of such period and on the basis of
projections of earnings for such Fiscal Quarter that have been
prepared by the Borrower in good faith and using reasonable
assumptions) provided, however, that the aggregate purchase price
of all acquisitions effected under this clause (v) (other than
any acquisitions that the Required Lenders have subsequently
agreed in writing may be excluded from this calculation) shall
not exceed $15,000,000; provided, further, that any Person that
becomes a Subsidiary of a Borrower or an Obligor under this
provision shall promptly become party to the Guaranty, the
Security Agreement and the Pledge Agreement, and delivers such
supporting resolutions, incumbency certificates, organizational
documents and opinions of counsel as the Agent may reasonably
request, and deliver such documents and take such actions as the
Agent may determine to be necessary or desirable in connection
with the perfection of the security interests granted thereby.
7.2.9 Asset Dispositions, etc. Each Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or
other rights with respect to, all or any substantial part of its
assets (including accounts receivable and capital stock of
Subsidiaries) to any Person, unless
(a)such sale, transfer, lease, contribution or conveyance is in
the ordinary course of its business or is permitted by Section 7.2.8; or
(b)the net book value of such assets, together with the net book
value of all other assets sold, transferred, leased, contributed
or conveyed otherwise than in the ordinary course of business by
all Borrowers or any of their Subsidiaries pursuant to this
clause after December 31, 1999, does not exceed $5,000,000 in the
aggregate for all Borrowers and their Subsidiaries; or
(c)such sale is for fair market value for cash and the net
proceeds thereof are applied in accordance with the provisions of
Sections 2.2 and 3.1
In connection with any such sale, transfer, lease,
contribution or conveyance by a Borrower of collateral
security subject to the Lien of the Loan Documents, the
Agent alone, upon presentation by the Borrower to the Agent
of appropriate evidence of the Borrowers' compliance with
this Section 7.2.9, shall be authorized to release such
collateral security from the Lien of the Loan Documents.
Nothing in this Section 7.2.9 shall be construed to require
any Borrower to obtain a release from the Agent for any
sale, transfer, lease, contribution or conveyance by a
Borrower in the ordinary course of business of collateral
security subject to the Lien of the Loan Documents.
7.2.10 Transactions with Affiliates. Each Borrower will not, and
will not permit any of its Subsidiaries to, enter into, or cause,
suffer or permit to exist any arrangement or contract with any of
its other Affiliates unless such arrangement or contract is fair
and equitable to such Borrower or such Subsidiary and is an
arrangement or contract of the kind which would be entered into
by a prudent Person in the position of such Borrower or such
Subsidiary with a Person which is not one of its Affiliates.
7.2.11 Negative Pledges, Restrictive Agreements, etc. Each
Borrower will not, and will not permit any of its Subsidiaries
to, enter into any agreement (excluding this Agreement, any other
Loan Document and any agreement governing any Indebtedness
permitted either by clauses (c) or (d) of Section 7.2.1 as to the
assets financed with the proceeds of such Indebtedness)
prohibiting
(a)the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired
(except for restrictions contained in leases permitted under this
Agreement with respect to the assets leased), or the ability of
such Borrower or any other obligor to amend or otherwise modify
this Agreement or any other Loan Document; or
(b)the ability of any Subsidiary to make any payments, directly
or indirectly, to such Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other
returns on investments, or any other agreement or arrangement
which restricts the ability of any such Subsidiary to make any
payment, directly or indirectly, to such Borrower.
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1 Listing of Events of Default. Each of the
following events or occurrences described in this Section 8.1
shall constitute an "Event of Default".
8.1.1 Non-Payment of Obligations. Any Borrower shall default in
the payment or prepayment when due of any principal of or
interest on any Loan, or any Borrower shall default (and such
default shall continue unremedied for a period of five days) in
the payment when due of any commitment fee or of any other
Obligation.
8.1.2 Breach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder
or in any other Loan Document executed by it or any other writing
or certificate furnished by or on behalf of any Borrower or any
other Obligor to the Agent or any Lender for the purposes of or
in connection with this Agreement or any such other Loan Document
(including any certificates delivered pursuant to Article 5) is
or shall be incorrect when made in any material respect.
8.1.3 Non-Performance of Certain Covenants and Obligations. Any
Borrower shall default in the due performance and observance of
any of its obligations under Section 7.2.1, 7.2.2, 7.2.3, 7.2.4,
7.2.5, 7.2.6, 7.2.8, 7.2.9, or 7.2.11.
8.1.4 Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of
any other agreement contained herein or in any other Loan
Document executed by it, and such default shall continue
unremedied for a period of 30 days after notice thereof shall
have been given to Bairnco by the Agent or any Lender.
8.1.5 Default on Other Indebtedness. A default shall occur in
the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any Indebtedness (other
than Indebtedness described in Section 8.1.1 and Indebtedness
comprised of trade payables disputed in good faith and as to
which adequate reserves have been set aside by the related
Obligor) of any Borrower or any of its Subsidiaries or any other
Obligor having a principal amount, individually or in the
aggregate, in excess of $250,000, or a default shall occur in the
performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default
shall continue unremedied for any applicable period of time
sufficient to permit the holder or holders of such Indebtedness,
or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed
maturity.
8.1.6 Judgments. Any judgment or order for the payment of money
in excess of $250,000 shall be rendered against any Borrower or
any of its Subsidiaries or any other Obligor and either
(a)enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and not stayed within 10
days of commencement; or
(b)there shall be any period of 10 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
8.1.7 Pension Plans. Any of the following events shall occur
with respect to any Pension Plan
(a)the institution of any steps by any Borrower, any member of
its Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, such Borrower or any
such member could be required to make a contribution to such
Pension Plan, or could reasonably expect to incur a liability or
obligation to such pension Plan, having a present value in excess
of $500,000; or
(b)a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA.
8.1.8 Bankruptcy, Insolvency, etc. Any Borrower or any of its
Subsidiaries having $3,000,000 or more in assets or in
liabilities (a "Significant Subsidiary") or any other Obligor
shall
(a)become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they
become due;
(b)apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for such
Borrower or any of its Subsidiaries or any other Obligor or any
property of any thereof, or make a general assignment for the
benefit of creditors;
(c)in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for such Borrower or any of its
Subsidiaries or any other obligor or for a substantial part of
the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within 60
days, provided that such Borrower, each Subsidiary and each other
Obligor hereby expressly authorizes the Agent and each Lender to
appear in any court conducting any relevant proceeding during
such 60-day period to preserve, protect and defend their rights
under the Loan Documents;
(d)permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of such Borrower
or any of its Subsidiaries or any other obligor, and, if any such
case or proceeding is not commenced by such Borrower or such
Subsidiary or such other Obligor, such case or proceeding shall
be consented to or acquiesced in by such Borrower or such
Subsidiary or such other Obligor or shall result in the entry of
an order for relief or shall remain for 60 days undismissed,
provided that such Borrower, each Subsidiary and each other
Obligor hereby expressly authorizes the Agent and each Lender to
appear in any court conducting any such case or proceeding during
such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
(e)take any corporate action authorizing, or in furtherance of,
any of the foregoing.
8.1.9 Impairment of Security, etc.. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its
terms), in whole or in part, terminate, cease to be effective or
cease to be the legally valid, binding and enforceable obligation
of any Obligor party thereto; any Borrower, any other Obligor or
any other party shall, directly or indirectly, contest in any
manner such effectiveness, validity, binding nature or
enforceability; or any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien,
subject only to those exceptions expressly permitted by such Loan
Document.
8.1.10 Change of Control. A Change of Control shall occur.
SECTION 8.2 Action if Bankruptcy. If any Event of Default
described in clauses (a) through (d) or Section 8.1.8 shall occur
with respect to any Borrower or any Significant Subsidiary or any
other Obligor, the Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal
amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without
notice or demand.
SECTION 8.3 Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a)
through (d) of Section 8.1.8 with respect to any Borrower or any
Significant Subsidiary or any other Obligor) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the
Agent, upon the direction of the Required Lenders, shall by
notice to Bairnco declare all or any portion of the outstanding
principal amount of the Loans and other obligations to be due and
payable and/or the Commitments (if not theretofore terminated) to
be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further
notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
ARTICLE 9
THE AGENT
SECTION 9.1 Actions. Each Lender hereby appoints Bank of
America as its Agent under and for purposes of this Agreement,
the Notes and each other Loan Document. Each Lender authorizes
the Agent to act on behalf of such Lender under this Agreement,
the Notes and each other Loan Document and, in the absence of
other written instructions from the Required Lenders received
from time to time by the Agent (with respect to which the Agent
agrees that it will comply, except as otherwise provided in this
Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to
or required of the Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental
thereto. Each Lender hereby indemnifies (which indemnity shall
survive any termination of this Agreement) the Agent, pro rata
according to such Lender's Percentage, from and against any and
all liabilities, obligations, losses, damages, claims, costs or
expenses of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against, the Agent in any
way relating to or arising out of the Agent's acting as Agent
(and not as a Lender) under this Agreement, the Notes and any
other Loan Document, including reasonable attorneys' fees, and as
to which the Agent is not reimbursed by the Borrowers; provided,
however, that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted
from the Agent's gross negligence or willful misconduct. The
Agent shall not be required to take any action hereunder, under
the Notes or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Agent shall be or
become, in the Agent's determination, inadequate, the Agent may
call for additional indemnification from the Lenders and cease to
do the acts indemnified against hereunder until such additional
indemnity is given.
SECTION 9.2 Funding Reliance, etc. Unless the Agent shall have
been notified by telephone, confirmed in writing, by any Lender
by 10:30 a.m., New York time, at least two days prior to a
Borrowing (in the case of Interbank Rate Loans), or by 11:30
a.m., New York time, on the day of a Borrowing (in the case of
Reference Rate Loans), that such Lender will not make available
the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Agent may assume
that such Lender has made such amount available to the Agent and,
in reliance upon such assumption, make available to the related
Borrower a corresponding amount. If and to the extent that such
Lender shall not have made such amount available to the Agent,
such Lender and the related Borrower severally agree to repay the
Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Agent made such
amount available to the related Borrower to the date such amount
is repaid to the Agent, at the interest rate applicable at the
time to Loans comprising such Borrowing.
SECTION 9.3 Exculpation. Neither the Agent nor any of its
directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under
this Agreement or any other Loan Document, or in connection
herewith or therewith, except for its own willful misconduct or
gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan
Document nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or
the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry
respecting the performance by any Borrower of its obligations
hereunder or under any other Loan Document. Any such inquiry
which may be made by the Agent shall not obligate it to make any
further inquiry or to take any action. The Agent shall be
entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing
which the Agent believes to be genuine and to have been presented
by a proper Person.
SECTION 9.4 Successor. The Agent may resign as such at any
time upon at least 30 days' prior notice to Bairnco and all
Lenders. If the Agent at any time shall resign, the Required
Lenders may appoint another Lender as a successor Agent which
shall thereupon become the Agent hereunder. If no successor
Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the
retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State
thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
be entitled to receive from the retiring Agent such documents of
transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with
all rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation hereunder as the Agent, the provisions of
(a)this Article 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under
this Agreement; and
(b)Section 10.3 and Section 10.4 shall continue to inure to its
benefit.
SECTION 9.5 Loans by Bank of America. Bank of America shall
have the same rights and powers with respect to (x) the Loans
made by it or any of its Affiliates, and (y) the Notes held by it
or any of its Affiliates as any other Lender and may exercise the
same as if it were not the Agent. Bank of America and its
Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrowers or any
Subsidiary or Affiliate of the Borrowers as if Bank of America
were not the Agent hereunder.
SECTION 9.6 Credit Decisions. Each Lender acknowledges that it
has, independently of the Agent and each other Lender, and based
on such Lender's review of the financial information of the
Borrowers, this Agreement, the other Loan Documents (the terms
and provisions of which being satisfactory to such Lender) and
such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to
extend its Commitments. Each Lender also acknowledges that it
will, independently of the Agent and each other Lender, and based
on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own
credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under this
Agreement or any other Loan Document.
SECTION 9.7 Copies, etc. The Agent shall give prompt notice to
each Lender of each notice or request required or permitted to be
given to the Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such
Borrower). The Agent will distribute to each Lender each
document or instrument received for its account and copies of all
other communications received by the Agent from any Borrower for
distribution to the Lenders by the Agent in accordance with the
terms of this Agreement.
SECTION 9.8 Letter of Credit Issuer. Each Lender hereby
designates Bank of America as issuer of the Letters of Credit
hereunder (in such capacity, the "Issuing Bank") and agrees that
the Issuing Bank shall have all of the benefits and immunities
(i) provided to the Agent in this Article 9 with respect to any
acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be
issued by it and the applications and agreements for letters of
credit pertaining to the Letters of Credit as fully as if the
term "Agent", as used in this Article 9, included the Issuing
Bank with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the
Issuing Bank.
SECTION 9.9 Syndication Agent. Each Lender hereby designates
SunTrust as Syndication Agent hereunder and grants to the
Syndication Agent all of the benefits and immunities provided to
the Agent in this Article 9 with respect to any actions of the
Syndication Agent in its capacity as Syndication Agent hereunder
as fully as if the term "Agent" as used in this Article 9
included the Syndication Agent. The Syndication Agent shall have
no duties or obligations under or in respect of this Agreement
after the Effective Date.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1 Waivers, Amendments, Collateral Releases, etc.
The provisions of this Agreement and of each other Loan Document
may from time to time be amended, modified or waived, or any
collateral security not authorized under Section 7.2.9 hereof to
be sold, transferred, leased, contributed or conveyed by a
Borrower may be released from the Lien of the Loan Documents, if
such amendment, modification, waiver or release of collateral
security is in writing and consented to by the Borrowers and the
Required Lenders; provided, however, that no such amendment,
modification, waiver or release of collateral security which
would:
(a)modify any requirement hereunder that any particular action
be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b)modify this Section 10.1, change the definition of "Required
Lenders", increase any Commitment Amount or the Percentage of any
Lender, reduce any fees described in Article 3, release all or
substantially all collateral security, except as otherwise
specifically provided in any Loan Document, or extend any
Commitment Termination Date shall be made without the consent of
each Lender and each holder of a Note;
(c)extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on
any Loan (or reduce the principal amount of or rate of interest
on any Loan) shall be made without the consent of the holder of
that Note evidencing such Loan;
(d)affect adversely the interests, rights or obligations of the
Agent in its capacity as the Agent shall be made without consent
of the Agent;
(e)amend, modify, or waive the financial covenants of the
Borrowers set forth in Section 7.2.3 hereof shall be effective
unless consented to by each Lender and each holder of a Note; or
(f)affect adversely the interests, rights or obligations of Bank
of America in its capacity as issuer of the Letters of Credit
shall be made without the consent of Bank of America.
No failure or delay on the part of the Agent, any Lender or the
holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand
on any Borrower in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval
by the Agent, any Lender or the holder of any Note under this
Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.2 Notices. All notices and other communications
provided to any party hereto under this Agreement or any other
Loan Document shall be in writing or by telex or by facsimile and
addressed, delivered or transmitted to such party at its address,
telex or facsimile number set forth below its signature hereto or
at such other address, telex or facsimile number as may be
designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted.
SECTION 10.3 Payment of Costs and Expenses. The Borrowers
jointly and severally agree to pay on demand all expenses of the
Agent (including the fees and out-of-pocket expenses of counsel
to the Agent (including, without duplication, the allocated costs
and out-of-pocket expenses of the Agent's staff counsel) and of
local counsel, if any, who may be retained by counsel to the
Agent) in connection with
(a)the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements
or other modifications to this Agreement or any other Loan
Document as may from time to time hereafter be required, whether
or not the transactions contemplated hereby are consummated (but
not in excess of $25,000 with respect to any transaction that is
not consummated), and
(b)the filing, recording, refiling or rerecording of the Pledge
Agreement and the Security Agreement and/or any Uniform
Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any
and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the
terms hereof or of the Pledge Agreement or the Security
Agreement, and
(c)the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to
save the Agent and the Lenders harmless from all liability for,
any stamp or other similar taxes which may be payable in
connection with the execution or delivery of this Agreement, the
borrowings hereunder, or the issuance of the Notes or any other
Loan Documents. The Borrowers also jointly and severally agree
to reimburse the Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable
attorneys' fees and legal expenses (which may include, without
duplication, the allocated costs and out-of-pocket expenses of
staff counsel) incurred by the Agent or such Lender in connection
with (x) the negotiation of any amendment or restructuring,
whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4 Indemnification. In consideration of the
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Borrowers jointly and severally
hereby indemnify, exonerate and hold the Agent and each Lender
and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and
harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any
such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a)any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan;
(b)the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of any Borrower as the result
of any determination by the Required Lenders pursuant to Article
5 not to fund any Borrowing);
(c)any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not the Agent or such Lender is party thereto;
(d)any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating
to the protection of the environment or the Release by any
Borrower or any of its Subsidiaries of any Hazardous Material; or
(e)the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any
real property owned or operated by any Borrower or any Subsidiary
thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, such Borrower or
such Subsidiary,
except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the
relevant Indemnified Party' s gross negligence or willful
misconduct. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, each Borrower hereby agrees
to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5 Survival. The obligations of each Borrower under
Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations
of the Lenders under Section 9.1, shall in each case survive any
termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The
representations and warranties made by each obligor in this
Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6 Severability. Any provision of this Agreement or
any other Loan Document which is prohibited or unenforceable in
any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7 Headings. The various headings of this Agreement
and of each other Loan Document are inserted for convenience only
and shall not affect the meaning or interpretation or this
Agreement or such other Loan Document or any provisions hereof or
thereof.
SECTION 10.8 Execution in Counterparts, Effectiveness etc.
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be executed by the Borrowers
and the Agent and be deemed to be an original and all of which
shall constitute together but one and the same agreement. This
Agreement shall become effective when counterparts hereof
executed on behalf of the Borrowers and each Lender (or notice
thereof satisfactory to the Agent) shall have been received by
the Agent and notice thereof shall have been given by the Agent
to the Borrowers and each Lender.
SECTION 10.9 Governing Law; Entire Agreement. THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. This
Agreement, the Notes and the other Loan Documents constitute the
entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
SECTION 10.10 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however,
that:
(a)the Borrowers may not assign or transfer their rights or
obligations hereunder without the prior written consent of the
Agent and all Lenders; and
(b)the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION 10.11 Assignments; Participations.
10.11.1 Assignments. To the extent not prohibited by any
applicable law, any Lender,
(a)with the written consent of the Agent (which the Agent shall
not unreasonably withhold) may at any time assign and delegate to
one or more commercial banks or governmental agencies or
institutions or, with the written consent of the Agent and of
Bairnco (which shall not be unreasonably withheld), to one or
more funds or other financial institutions, and
(b)with notice to the Borrowers and the Agent, but without the
consent of the Borrowers or the Agent, may assign and delegate to
any of its Affiliates or to any other Lender (each Person
described in either of the foregoing clauses as being the Person
to whom such assignment and delegation is to be made being
hereinafter referred to as an "Eligible Assignee"), all or any
fraction of such Lender's Loans, Commitments and interests in
outstanding Letters of Credit (which assignment and delegation
shall be of a constant, and not a varying, Percentage of all of
the assigning Lender's Loans, Commitments and interests in
outstanding Letters of Credit, adjusted, however, for Bank of
America's sole participation and interest in the Foreign Loan
Commitment); provided, (i) any such partial assignment shall not
result in a reduction of such Lender's Loans, Commitments and
interests in outstanding Letters of Credit being less than a
minimum aggregate amount of $5,000,000; (ii) that prior to a
Default and, except in the case of assignments to any other
Lender, in no event shall any assigning Lender make a partial
assignment pursuant to this Section 10.11 if, after giving effect
thereto, the aggregate amount of such assigning Lender's
remaining Commitments would be less than $5,000,000; and
(iii) that any such Eligible Assignee will comply, if applicable,
with the provisions contained in the last sentence of Section
4.6; and (iv) that the Borrowers and the Agent shall be entitled
to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an
Eligible Assignee until
(A)written notice of such assignment and delegation, together
with payment instructions, addresses, and related information
with respect to such Eligible Assignee, shall have been given to
the Borrowers and the Agent by such Lender and such Eligible
Assignee,
(B)such Eligible Assignee shall have executed and delivered to
the Borrowers and the Agent an Assignment and Acceptance
substantially in the form of Exhibit H hereto, and the same shall
have been accepted by the Agent, and
(C)the processing fees described below shall have been paid.
From and after the date that the Agent accepts such
Assignment and Acceptance, (x) the Eligible Assignee in
connection with such Assignment and Acceptance, shall have
the rights and obligations of a Lender hereunder and under
the other Loan Documents, and (y) the assigning Lender, to
the extent that rights and obligations hereunder have been
assigned and delegated by it in connection with such
Assignment and Acceptance, shall be released from its
obligations hereunder and under the other Loan Documents.
Within five Business Days after its receipt of notice that
the Agent has received an executed Assignment and
Acceptance, the Borrowers shall execute and deliver to the
Agent (for delivery to the relevant Eligible Assignee) new
Notes evidencing such Eligible Assignee's assigned Loans and
Commitments (if any) and, if the assigning Lender has
retained Loans and Commitments hereunder, replacement Notes
in the principal amount of the Loans and Commitments
retained by the assigning Lender hereunder (such Notes to be
in exchange for, but not in payment of, those Notes then
held by such assignor Lender) . Each such Note shall be
dated the date of the predecessor Notes. The assigning
Lender shall mark the predecessor Notes "exchanged" and
deliver them to the Borrowers. Accrued interest on that
part of the predecessor Notes evidenced by the new Notes,
and accrued fees, shall be paid as provided in the
Assignment and Acceptance. Accrued interest on that part of
the predecessor Notes evidenced by the replacement Notes
shall be paid to the assigning Lender. Accrued interest and
accrued fees shall be paid at the same time or times
provided in the predecessor Notes and in this Agreement.
such Eligible Assignee must also pay a processing fee to the
Agent upon delivery of any Assignment and Acceptance in the
amount of $3,500. Any attempted assignment and delegation
not made in accordance with this Section 10.11.1 shall be
null and void.
10.11.2 Participations. Any Lender may at any time sell to one
or more commercial banks, funds, or other Persons (each of such
commercial banks, funds, and other Persons being herein called a
"Participant") participating interests in any of the Loans,
Commitments, or other interests of such Lender hereunder;
provided, however, that
(a)no participation contemplated in this Section 10.11 shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document,
(b)such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations,
(c)the Borrowers and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and each of the other Loan
Documents,
(d)no Participant shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (c) of
Section 10.1, and
(e)the Borrower shall not be required to pay any amount under
Section 4.6 that is greater than the amount which it would have
been required to pay had no participating interest been sold.
The Borrowers acknowledge and agree that each Participant,
for purposes of Sections 2.5, 4.3, 4.4, 4.5, 4.6, 4.8, 4.9,
10.3, and 10.4, shall be considered a Lender.
SECTION 10.12 Other Transactions. Nothing contained herein
shall preclude the Agent or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrowers or any of their
Affiliates in which the Borrowers or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 10.13 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND
CITY OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH BORROWER, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III)AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO IT AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.2;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE
IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER ITSELF IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 10.13
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
SECTION 10.14 Waiver of Jury Trial. THE AGENT, THE LENDERS AND
THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE
BORROWERS. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT
IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
SECTION 10.15 Reaffirmation and Modification of Original Loan
Documents. It is the intention of each of the parties hereto that
the Original Agreement be amended and restated so as to preserve
the perfection and priority of all security interests securing
indebtedness under the Original Agreement and the other Loan
Documents and that all indebtedness and obligations of the
Borrowers and the guarantors hereunder and thereunder shall be
secured by the Loan Documents and that this Agreement shall not
constitute a novation of the obligations and liabilities existing
under the Original Agreement or be deemed to evidence or
constitute repayment of all or any portion of any such
obligations or liabilities. The parties hereto further
acknowledge and agree that this Agreement constitutes an
amendment of the Original Agreement and of the 1992 Agreement
made under the terms thereof.
SECTION 10.16 Situs of Documents. All documents to be executed
and delivered in accordance with this Agreement shall be executed
by the parties and delivered to the Agent outside of the State of
Florida. In the absence of an Event of Default, all Notes
delivered under the Original Agreement or included in the Loan
Documents shall be maintained at a location outside the State of
Florida and all payments due thereunder shall be payable through
the Agent or, if payable directly to any Lender, shall be payable
at a location outside the State of Florida.
SECTION 10.17 Modifications with respect to the Euro. The Agent
may from time to time further modify the terms of, and practices
contemplated by, this Agreement with respect to the Euro to the
extent the Agent determines, in its reasonable discretion, that
such modifications are necessary or convenient to reflect new
laws, regulations, customs or practices developed in connection
with the Euro. The Agent may effect such modifications, and this
Agreement shall be deemed so amended, without the consent of any
Borrower or the Lenders to the extent such modifications are not
materially disadvantageous to the Borrowers and the Lenders, upon
notice thereto.
The Agent shall not be liable to any party to this Agreement in
any way whatsoever for any delay, or the consequences of any
delay, in the crediting to any account of any amount denominated
in the Euro or an NCU.
EXHIBIT A
DOLLAR NOTE
$______________ ________________, 20___
FOR VALUE RECEIVED, the undersigned, [BORROWER], a
_______________ corporation (the "Borrower"), promises to
pay to the order of _________________ (the "Lender") on
[February __, 2005] [December 31, 2004] the principal sum of
_____________________________ DOLLARS ($___________) as such
amount may be increased or decreased in accordance with
Section 2.2.4 of the Credit Agreement (as defined below), or
the aggregate unpaid principal amount of all _____________
Loans shown on the schedule attached hereto (and any
continuation thereof) or in the records of the Lender as
made by the Lender pursuant to the Credit Agreement;
provided, however, that the failure of the Lender to make
any notation on the attached schedule or in the Lender's
records shall not limit or otherwise affect the Obligations
of the Borrower hereunder or under the Credit Agreement.
The Borrower also promises to pay interest on the unpaid
principal amount hereof from time to time outstanding from
the date hereof until maturity (whether by acceleration or
otherwise) and, after maturity, until paid, at the rates per
annum and on the dates specified in that certain Second
Amended and Restated Credit Agreement dated as of February
___, 2000 (together with all further amendments and other
modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among the Borrower,
[Bairnco Corporation, a Delaware corporation ("Bairnco"),]
certain [other] subsidiaries of [Bairnco] [the Borrower],
BANK OF AMERICA, N.A., as Agent, SUNTRUST BANK, as
Syndication Agent and the various financial institutions
(including the Lender) as are, or may from time to time
become, parties thereto.
Payments of both principal and interest are to be made in
lawful money of the United States of America in same day or
immediately available funds to the account designated by the
Agent pursuant to the Credit Agreement.
This Note is one of the _____________ Notes referred to in,
and evidences Indebtedness incurred under, the Credit
Agreement, to which reference is made for a description of
the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and
required to make prepayments and repayments of principal of
the Indebtedness evidenced by this Note and on which such
Indebtedness may be declared to be immediately due and
payable [and is issued, together with the other
_____________ Notes, to amend and restate without
interruption or novation, all indebtedness evidenced by the
_____________ Notes (as defined in the Original Credit
Agreement)]. Unless otherwise defined, terms used herein
have the meanings provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand,
protest and notice of dishonor.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWER
AND LENDER HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES.
[BORROWER]
By:
Title:
<TABLE>
<CAPTION>
_______ LOANS AND PRINCIPAL PAYMENTS
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Amount of Amount of Unpaid
_________ Principal Principal
Repaid Balance
Loan Made
Alternate Interest Alternate Alternate
Reference Interbank Period (if Refernceate Interbank Reference Interbank Notation
Date Rate Rate Applicable Rate Rate Rate Rate Made By
</TABLE>
EXHIBIT B
FOREIGN NOTE
$________________ ________________, 20___
FOR VALUE RECEIVED, the undersigned, [BORROWER], a
___________ corporation (the "Borrower"), promises to pay
to the order of Bank of America, N.A.. (the "Lender") on
February ___, 2005 the principal sum of the equivalent
amount in [FOREIGN CURRENCY] or Euro of __________________
or the aggregate principal amount of the loans made in
[FOREIGN CURRENCY] or Euro of all ___________ Loans shown
on the schedule attached hereto (and any continuation
thereof) or in the records of the Lender as made by the
Lender pursuant to the Credit Agreement (as defined below);
provided, however, that the failure of the Lender to make
any notation on the attached schedule or in the Lender's
records shall not limit or otherwise affect the Obligations
of the Borrower hereunder or under the Credit Agreement.
The Borrower also promises to pay interest on the unpaid
principal amount hereof from time to time outstanding from
the date hereof until maturity (whether by acceleration or
otherwise) and, after maturity, until paid, at the rates
per annum and on the dates specified in the that certain
Second Amended and Restated Credit Agreement dated as of
February ___, 2000 (together with all further amendments
and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the
Borrower, Bairnco Corporation, a Delaware corporation
("Bairnco"), certain [other] subsidiaries of Bairnco, BANK
OF AMERICA, N.A., as Agent, SUNTRUST BANK, as Syndication
Agent, and the various financial institutions (including
the Lender) as are, or may from time to time become,
parties thereto.
Payments of both principal and interest are to be made
in lawful money of [SPECIFY APPLICABLE COUNTRY] in same day
or immediately available funds to the account designated by
the Agent pursuant to the Credit Agreement.
This Note is one of the ______________ Notes referred to
in, and evidences Indebtedness incurred under, the Credit
Agreement, to which reference is made for a description of
the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and
required to make prepayments and repayments of principal of
the Indebtedness evidenced by this Note and on which such
Indebtedness may be declared to be immediately due and
payable and is issued, together with the other
_____________ Notes, to amend and restate without
interruption or novation, all indebtedness evidenced by the
_____________ Notes (as defined in the Original Credit
Agreement). Unless otherwise defined, terms used herein
have the meanings provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or
other wise, severally waive presentment for payment,
demand, protest and notice of dishonor.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE
BORROWER AND LENDER HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
[BORROWER]
By:
Title:
________ LOANS AND PRINCIPAL PAYMENTS
Amount of Amount of Unpaid
Loan Made Principal Repaid Principal Balance
Interest Notation
Date Period Total Made By
EXHIBIT C
LETTER OF CREDIT NOTE
$______________ ________________, 20___
FOR VALUE RECEIVED, the undersigned, BAIRNCO
CORPORATION, a Delaware corporation (the
"Borrower"), promises to pay to the order of (the
"Lender") on February ___, 2005 the principal sum of
____________________________DOLLARS ($___________) as
such amount may be increased or decreased in
accordance with Section 2.2.4 of the Credit Agreement
(as defined below), or the aggregate unpaid principal
amount of all Letter of Credit Loans shown on the
schedule attached hereto (and any continuation
thereof) or in the records of the Lender as made by
the Lender pursuant to the Credit Agreement;
provided, however, that the failure of the Lender to
make any notation on the attached schedule or in the
Lender's records shall not limit or otherwise affect
the Obligations of the Borrower hereunder or under
the Credit Agreement.
The Borrower also promises to pay interest on the
unpaid principal amount hereof from time to time
outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after
maturity, until paid, at the rates per annum and on
the dates specified in that certain Second Amended
and Restated Credit Agreement dated as of February
___, 2000 (together with all further amendments and
other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"),
among the Borrower, [Bairnco Corporation, a Delaware
corporation ("Bairnco"),] certain [other]
subsidiaries of [Bairnco] [the Borrower], BANK OF
AMERICA, N.A., as Agent, SUNTRUST BANK, as
Syndication Agent and the various financial
institutions (including the Lender) as are, or may
from time to time become, parties thereto.
Payments of both principal and interest are to
be made in lawful money of the United States of
America in same day or immediately available funds to
the account designated by the Agent pursuant to the
Credit Agreement.
This Note is one of the Letter of Credit Notes
referred to in, and evidences Indebtedness incurred
under, the Credit Agreement, to which reference is
made for a description of the security for this Note
and for a statement of the terms and conditions on
which the Borrower is permitted and required to make
prepayments and repayments of principal of the
Indebtedness evidenced by this Note and on which such
Indebtedness may be declared to be immediately due
and payable and is issued, together with the other
Letter of Credit Notes, to amend and restate without
interruption or novation, all indebtedness evidenced
by the Letter of Credit Notes (as defined in the
Original Credit Agreement). Unless otherwise defined,
terms used herein have the meanings provided in the
Credit Agreement.
.All parties hereto, whether as makers,
endorsers, or
otherwise, severally waive presentment for payment,
demand, protest and notice of dishonor.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE
BORROWER AND LENDER HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
[BORROWER]
By:
Title
<TABLE>
<CAPTION>
LETTER OF CREDIT LOANS AND PRINCIPAL PAYMENTS
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Amount of
Letter of Credit Amount of Unpaid
Loan Made Principal Repaid Principle Balance
Alternate Interest Alternate Alternate
Reference Interbank Period (if Reference Interbank Reference Interbank Notation
Date Rate Rate applicable) Rate Rate Rate Rate Made By
</TABLE>
EXHIBIT D
BORROWING REQUEST
Bank of America, N.A., as Agent
335 Madison Avenue
New York, New York 10017
Attention: (Name]
[Title]
[Borrower's Name]
Ladies and Gentlemen:
This Borrowing Request is delivered to you pursuant to
Section 2.3 of the Second Amended and Restated Credit
Agreement, dated as of February ___, 2000 (together
with all amendments, if any, from time to time made
thereto, the "Credit Agreement"), among Bairnco
Corporation and certain of its Subsidiaries as the
Borrowers, certain commercial lending institutions as
the Lenders, Bank of America, N.A., as Agent (the
"Agent") and SunTrust Bank, as Syndication Agent.
Unless otherwise defined herein or the context
otherwise requires, terms used herein have the
meanings provided in the Credit Agreement.
The Borrower hereby requests that a
__________________ Loan be made in the aggregate
principal amount of ___________________ [specify
currency] on _________________, 200__ as a [Euro Rate
Loan [specify type] having an Interest Period of ____
months] [Reference Rate Loan].
The Borrower hereby acknowledges that, pursuant
to Section 5.2.2 of the Credit Agreement, each of the
delivery of this Borrowing Request and the acceptance
by the Borrower of the proceeds of the Loans
requested hereby constitute a representation and
warranty by the Borrower that, on the date of such
Loans, and before and after giving effect thereto and
to the application of the proceeds therefrom, all
statements set forth in Section 5.2.1 are true and
correct in all material respects.
The Borrower agrees that if prior to the time of
the
Borrowing requested hereby any matter certified to
herein by it will not be true and correct at such
time as if then made, it will immediately so notify
the Agent. Except to the extent, if
any, that prior to the time of the Borrowing
requested hereby the Agent shall receive written
notice to the contrary from the Borrower, each matter
certified to herein shall be deemed once again to be
certified as true and correct at the date of such
Borrowing as if then made.
Please wire transfer the proceeds of the
Borrowing to the accounts of the following persons at
the financial institutions indicated respectively:
Amount to be Person to be Paid Name, Address, etc.
Transferred Name Account No. of Transferee Bank
$
Attention:
$
Attention:
Balance of such The Borrower
proceeds Attention:
The Borrower has caused this Borrowing Request
to be executed and delivered, and the certification
and warranties contained herein to be made, by its
duly Authorized Officer this ___ day of
___________________, 200__.
[Borrower's Name]
By:
EXHIBIT E
CONTINUATION/CONVERSION NOTICE
Bank of America, N.A., as Agent
335 Madison Avenue
New York, New York 10017
Attention: [Name]
[Title]
[Borrower's Name]
Ladies and Gentlemen:
This Continuation/Conversion Notice is delivered
to you pursuant to Section 2.4 of the Second Amended
and Restated Credit Agreement, dated as of February
___, 2000 (together with all amendments, if any, from
time to time made thereto, the "Credit Agreement"),
among Bairnco Corporation and certain of its
Subsidiaries as the Borrowers, certain commercial
lending institutions as the Lenders, Bank of America,
N.A., as Agent (the "Agent") and SunTrust Bank, as
Syndication Agent. Unless otherwise defined herein or
the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
The Borrower hereby requests that on _______________,
200___,
(1) ___________ [specify currency] of the
presently outstanding principal amount of the
____ Loans originally made on ________________,
[19][20]___ [and ____________________ [specify
currency] of the presently outstanding
principal amount of the ______ Loans originally
made on ____________, [19][20]___],
(2) and all presently being maintained as
[Reference Rate Loans] [Interbank Rate Loans]
[Sterling Loans] [FF
Loans] [DM Loans],
(3) be [converted into] [contained as ],
(4) [____________ Loans having an
Interest Period of ____ months] [Reference
Rate Loans].
The Borrower hereby:
(a) certifies and warrants that no
Default has occurred and is continuing; and
(b) agrees that if prior to the time of
such continuation or conversion any matter
certified to herein by it will not be true and
correct at such time as if then made, it will
immediately so notify the Agent.
Except to the extent, if any, that prior to the time
of the continuation or conversion requested hereby
the Agent shall receive written notice to the
contrary from the Borrower, each matter certified to
herein shall be deemed to be certified at the date of
such continuation or conversion as if then made.
The Borrower has caused this
Continuation/Conversion Notice to be executed and
delivered, and the certification and warranties
contained herein to be made, by its Authorized
Officer this ____day of ___________, 200__.
[BORROWER'S NAME]
By:
Title:
EXHIBIT G
BAIRNCO CORPORATION
Compliance Certificate
Quarter Ended [ ]
Reference is made to that certain Second Amended and
Restated Credit Agreement dated as of
, 2000, among Bairnco
Corporation, certain of its subsidiaries as
Borrowers, certain financial institutions as Lenders,
Bank of America, N.A., as Agent, and SunTrust Bank,
as Syndication Agent, as amended, supplemented or
otherwise modified from time to time (the "Credit
Agreement"). Capitalized terms used herein without
definition shall have the same respective meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 7.1.1(c) of the Credit
Agreement, the Borrowers HEREBY CERTIFY THAT:
No Default. As of the date hereof, no Default under
the
Credit Agreement has occurred and is continuing,
except as set forth below (If no exceptions, state
"None"):
Net Worth (Section 7.2.3(a))
A. Net Worth
(a) Aggregate Par Value of Outstanding Shares $
(b) Paid-in-Capital (excluding cumulative
translation adjustment since 12/31/96) $
(c) Retained Earnings $
(d) Treasury Stock $
(e) Subordinated Debt with No Put Option $
Sum of (a) + (b) + (c) + (e) less (d) $
B. Cumulative Net Income since 12/31/99 $
C. Proceeds of Bairnco Stock (other than the
proceeds of the issuance of stock to
directors or employees pursuant to the
exercise of stock options) since 12/31/99 $
D. Credit Agreement Requirements:
Net Worth (A) not to be less than:
(a) $40,000,000 plus
(b) 60% of Cumulative Net Income since
12/31/99 (B) plus
(c) 60% of net cash proceeds of Bairnco
stock sold since 12/31/99 (C) $
Compliance Indicated
Debt to Capital Ratio (Section 7.2.3(b))
E. Consolidated Funded Debt $
F. Stockholders' Investment $
G. Sum of A + B $
H. Ratio of A to C
I. Credit Agreement Requirement requires, for
any fiscal quarter ending on or before
12/31/01, not Greater Than: 65.0%
J. Credit Agreement Requirement requires, for
any fiscal quarter ending after
12/31/01, not Greater Than: 60.0%
Compliance Indicated
Interest Coverage Ratio (Section 7.2.3(c))
K. Consolidated Earnings Before Interest $
Expense and Taxes for the fiscal
quarter ended [ ], excluding
non-recurring gains and charges
L. Consolidated Interest Expense for $
Indebtedness for the fiscal
quarter ended [ ]
M. Ratio of A to B
N. Credit Agreement Requires Not Less Than: 2.50:1.00
Compliance Indicated
IN WITNESS WHEREOF, the undersigned has executed this
certificate on behalf of the Borrowers as of the
______ day of __________, ____.
BAIRNCO
CORPORATION
By:
Name:
Title:
EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE
TO: Bairnco Corporation and certain of its Subsidiaries
300 Primera Boulevard, Suite 432
Lake Mary, Florida 32746
TO: Bank of America, N.A.
as the Agent
Re: Bairnco Corporation and certain of its
subsidiaries
Gentlemen and Ladies:
We refer to Section 10.11.1 of the Second Amended and
Restated Credit Agreement, dated as of February 22,
2000 (together with all amendments and other
modifications, if any, from time to time thereafter
made thereto, the "Credit Agreement") among Bairnco
Corporation and certain of its Subsidiaries, as the
Borrowers (collectively referred to herein as the
"Borrower"), the various financial institutions (the
"Lenders") as are, or shall from time to time become,
parties thereto, Bank of America, N.A., as agent (the
"Agent") for the Lenders and SunTrust Bank, as
syndication agent. Unless otherwise defined herein or
the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
This agreement is delivered to you pursuant to
clause (B) of Section 10.11.1(b) of the Credit
Agreement and also constitutes
notice to each of you, pursuant to clause (A) of
Section 10.11.1(b) of the Credit Agreement, of the
assignment and delegation to ______________________
(the "Assignee") of _____% of [the Loans and
Commitment] [the ______________ Loans and
_____________ Commitment] of
______________________________ (the "Assignor")
outstanding under the Credit Agreement on the date
hereof. After giving effect to the foregoing
assignment and delegation, the Assignor's and the
Assignee's Percentage for the purposes of the Credit
Agreement are set forth opposite such Person's name
on the signature pages hereof.
[Add paragraph dealing with accrued interest
and fees with respect to Loans assigned.]
The Assignee hereby acknowledges and confirms
that it has received a copy of the Credit Agreement
and the exhibits related thereto, together with
copies of the documents which were required to be
delivered under the Credit Agreement as a condition
to the making of the Loans thereunder. The Assignee
further confirms and agrees that in becoming a Lender
and in making its Commitment and Loans under the
Credit Agreement, such actions have and will be made
without recourse or representation to or warranty by
the Agent.
Except as otherwise provided in the Credit
Agreement, effective as of the date of acceptance
hereof by the Agent
(a) the Assignee
(i) shall be deemed automatically to
have become
a party to the Credit Agreement, have all
the rights and obligations of a "Lender"
under the Credit Agreement and the other
Loan Documents as if it were
an original signatory thereto to the
extent specified in the second paragraph
hereof; and
(ii) agrees to be bound by the terms
and conditions set forth in the Credit
Agreement and the other Loan Documents as
if it were an original signatory thereto;
and
(b) the Assignor shall be released from its
obligations under the Credit Agreement and the
other Loan Documents to the extent specified in
the second paragraph hereof.
The Assignor and the Assignee hereby agree that
the [Assignor] [Assignee] will pay to the Agent the
processing fee referred to in Section 10.1.1 of the
Credit Agreement upon the delivery thereof.
The Assignee hereby advises each of you of the
following administrative details with respect to the
assigned Loans and Commitment and requests the Agent
to acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback):
LIBOR Office:
IN WITNESS WHEREOF, the undersigned has executed this
Assignment Agreement as of the ____ day of
_________________, 2000.
[NAME OF ASSIGNEE]
By:
Name:
Title:
[NAME OF ASSIGNOR]
By:
Name:
Title:
EXHIBIT I
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (this
"Guaranty") dated as of February 22, 2000 is
executed by Bairnco Corporation, a Delaware
corporation ("Bairnco"), each of its undersigned
Subsidiaries and each other Subsidiary of Bairnco
that may become a party hereto in accordance with
Section 13 hereof (Bairnco and each such Subsidiary
of Bairnco collectively hereinafter referred to as
the "Guarantors" and individually as a "Guarantor")
in favor of BANK OF AMERICA, N.A., ("Bank of
America"; the successor by merger to Bank of America
Illinois, formerly known as Continental Bank, N.A.),
as Agent (as hereinafter defined in the first recital
below) and amends and restates in its entirety that
certain Guaranty dated as of September 27, 1990 (as
amended, restated, supplemented or otherwise modified
as of the date hereof, the "Existing Guaranty"), by
Bairnco, Arlon, Inc., a Delaware corporation
("Arlon") , Kasco Corporation, a Delaware corporation
("Kasco"), Shielding Systems Corporation, a Delaware
corporation and other subsidiaries of Bairnco party
thereto as of the date hereof in favor of Bank of
America, as agent.
RECITALS
WHEREAS, Bairnco Corporation ("Bairnco"), certain of its
Subsidiaries, certain lenders (the "Lenders") and
Bank of America, as agent for the Lenders (the
"Agent"), have entered into that certain Second
Amended and Restated Credit Agreement dated as of
February 22, 2000 (as the same may be amended,
restated, supplemented or otherwise modified from
time to time, hereinafter referred to as the "Credit
Agreement") pursuant to which the Lenders have
extended credit to Bairnco and certain of its
Subsidiaries (each capitalized term used but not
defined herein shall have the meaning assigned
thereto in the Credit Agreement);
WHEREAS, it is a condition precedent to the
Lenders amending and restating the Credit Agreement
on the date hereof that the Existing Guaranty be
amended and restated as herein provided; and
WHEREAS, each Guarantor has received and will
receive substantial benefits from the extension of
credit pursuant to the Credit Agreement;
NOW, THEREFORE, in order to induce the Lenders
to enter into the Credit Agreement, each Guarantor
hereby covenants as follows:
1. Guaranty.
(a) Subject to Section 1(b), each
Guarantor hereby unconditionally guarantees the
performance and the full and prompt payment when due,
whether by acceleration or otherwise, and at all
times thereafter, of all Obligations (except such
Guarantor's Obligations as a Borrower) under and in
connection with the Loan Documents (all such
obligations being hereinafter collectively called the
"Guaranteed Liabilities").
(b) The liability of each of the Guarantors under this
Guaranty shall not exceed the maximum amount of
liability that such Guarantor can hereby incur
without rendering this Guaranty voidable under
applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount.
For purposes of determining such liability of each of
the Guarantors, due consideration shall be given to
the direct and indirect benefits received by each of
the Guarantors as a result of the extension of credit
under the Credit Agreement.
(c) This Guaranty shall in all respects be a continuing,
absolute and unconditional guaranty, and shall remain
in full force and effect notwithstanding the
dissolution of any Guarantor or that at any time or
from time to time all Guaranteed Liabilities may have
been paid in full.
2. Disgorged Payments. Each Guarantor further
agrees that, if at any time all or any part of any
payment theretofore applied by the Agent or the
Lenders to any of the Guaranteed Liabilities is or
must be rescinded or returned by the Agent or the
Lenders for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or
reorganization of any Company), such Guaranteed
Liabilities shall, for the purposes of this Guaranty,
to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the
Agent or the Lenders, and this Guaranty shall
continue to be effective or be reinstated, as the
case may be, as to such Guaranteed Liabilities, all
as though such application by the Agent or the
Lenders had not been made.
3. Certain Permitted Actions. To the extent permitted
by law, each of the Agent and any Lender each may,
from time to time, whether before or after any
discontinuance of this Guaranty, at its sole
discretion and without notice to any Guarantor or any
other Person, take any or all of the following
actions without impairing its rights arising hereunder: (a) retain
or obtain a lien upon or a security interest in any
property to secure any of the Guaranteed Liabilities,
(b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to
such Guarantors' obligations, with respect to any of
the Guaranteed Liabilities, (c) extend or renew for
one or more periods (whether or not longer than the
original period), alter or exchange any of the
Guaranteed Liabilities, or release or compromise any
obligation of any Borrower under any Loan Document or
any obligation of any nature of any other obligor
with respect to any of the Guaranteed Liabilities,
(d) release or fail to perfect its lien upon or
security interest in, or impair, surrender, release
or permit any substitution or exchange for, all or
any part of any property securing any of the
Guaranteed Liabilities, or extend or renew for one or
more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect
to any such property, and (e) resort to any Guarantor
for payment of any of the Guaranteed Liabilities,
whether or not the Agent or the Lenders (i) shall
have resorted to any property securing any of the
Guaranteed Liabilities or (ii) shall have proceeded
against any other obligor primarily or secondarily
obligated with respect to any of' the Guaranteed
Liabilities (all of the actions referred to in
preceding
clauses (i) and (ii) being hereby expressly waived by
each Guarantor).
4. Application of Funds. Any amounts received by the
Agent or the Lenders from whatsoever source on
account of the Guaranteed Liabilities may be applied
by it toward the payment of such of the Guaranteed
Liabilities, and in such order of application, as the
Agent and the Lenders may from time to time elect.
5. Limit on Subrogation; Waivers.
(a) No payment made
by or for the account of any Guarantor pursuant to this
Guaranty shall entitle any Guarantor by subrogation
or otherwise to any payment by any Borrower or by any
Guarantor or from or out of any property of any
Borrower or any Guarantor, and no Guarantor shall
exercise any right or remedy against any Borrower or
any Guarantor or any property of any Borrower or any
Guarantor by reason of any performance by such
Guarantor of this Guaranty, all of which rights and
remedies are hereby waived by such Guarantor to the
fullest extent permitted by law.
(b) To the extent permitted by law, each Guarantor hereby
expressly waives (i) notice of the acceptance by the
Agent or the Lenders of this Guaranty, (ii) notice of
the existence or creation or non-payment of all or
any of the Guaranteed Liabilities, (iii) presentment,
demand, notice of dishonor, protest, and all other
notices whatsoever, and (iv) all diligence in
collection or protection of or realization upon the
Guaranteed Liabilities or any security for or
guaranty of any of the foregoing.
6. Transfer of Obligations.
Subject to Section 10.11
of the Credit Agreement, the Agent and
the Lenders may, from time to time,
without notice to any Guarantor,
assign or transfer, or cause to be
assigned or transferred, any or all of
the Guaranteed Liabilities or any
interest therein and, notwithstanding
any such assignment or transfer or any
subsequent assignment or transfer
thereof, such Guaranteed Liabilities
shall be and remain Guaranteed
Liabilities for the purposes of this
Guaranty, and each and every immediate
and successive assignee or transferee
of any of the
Guaranteed Liabilities or of any
interest therein shall, to the extent
of the interest of such assignee or
transferee in the Guaranteed
Liabilities, be entitled to the
benefits of this Guaranty to the same
extent as if such assignee or
transferee were the Agent or a Lender.
7. No Conditions to Effectiveness.
No claim or defense by any Person as to the invalidity or
unenforceability of any obligation under the Loan
Documents shall affect or impair the obligations of
the Guarantors under this Guaranty. The obligation
of the Guarantors under this Guaranty shall be
absolute and unconditional irrespective of any
circumstance whatsoever which might constitute a
legal or equitable discharge or defense of any
Guarantor or any Borrower. Each Guarantor hereby
acknowledges that there are no conditions to the
effectiveness of this Guaranty.
8. Warranties.
Each Guarantor hereby warrants and
represents to the Agent and the Lenders that (i) it
now has and will continue to have independent means
of obtaining information concerning the affairs,
financial condition and business of each Borrower,
and the Agent and the Lenders shall not have any duty
or responsibility to provide such Guarantor with any
credit or other information concerning the affairs,
financial condition or business of any Borrower which
may come into such Person's possession; (ii) all
things necessary to make this Guaranty the legal,
valid and binding obligation of such Guarantor,
enforceable in accordance with its terms, have been
done and performed; (iii) the execution, delivery and
performance of this Guaranty by such Guarantor are
within its powers and do not
(a) contravene any law, rule or regulation presently
in effect which affects or binds it or any of its
properties, or
(b) conflict with or result in a breach of any
guaranty or loan or credit agreement or any other
agreement or instrument to which it is a party in
respect of indebtedness for money borrowed, except
for such contraventions, conflicts and breaches that,
in the aggregate, will not have a material adverse
effect on Bairnco and its Subsidiaries on a
consolidated basis; and (iv) any and all information
heretofore or hereafter provided by such Guarantor to
the Agent and the Lenders hereunder and certified by
an Authorized Officer of such Guarantor is and shall
be true and accurate in all respects as of the date
furnished and does not and shall not omit any
material fact necessary to make the information not
misleading.
9. Modification of Guaranty.
This Guaranty shall not
be amended, supplemented or otherwise modified
without the written consent of the Agent and the
Required Lenders and the Guarantors.
10. Notices.
All notices or other communications given
hereunder shall be in writing (including telex and
facsimile communication) and mailed, telexed,
telecopied or delivered:
(a) if to a Guarantor, to it at its address set forth
on the signature pages hereof or at such other address
as shall have been or be designated by it in a
written notice to the Agent;
(b) if to the Agent or any Lender, to such Person at its
address set forth in the Credit Agreement or at such other address
as shall have been or be designated by it in a written
notice to the Guarantors.
All such notices and communications shall be
deemed to have been duly made or given (i) when
delivered by hand, (ii) five (5) Business Days after
being deposited in the mail, postage prepaid, (iii)
when telexed, answer back received, or (iv) when by
facsimile communication, receipt acknowledged.
11. GOVERNING LAW; CONSENT TO JURISDICTION AND
SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY COMPANY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE, COUNTY AND CITY OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST
ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH
BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN
ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO IT AT ITS ADDRESS PROVIDED
IN ACCORDANCE WITH THIS SECTION 11;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE
(III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER ITSELF IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION
11 RELATING TO JURISDICTION AND VENUE SHALL BE
BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS
LAW SECTION 5-1402 OR OTHERWISE.
(b) EACH GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE
LENDERS, THE GUARANTORS OR THE BORROWERS. EACH
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR
THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE AGENT AND THE LENDERS ENTERING INTO THE
CREDIT AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
12. Resolution of Drafting Ambiguities.
Each of the parties hereto acknowledge that it was represented by
counsel in connection with the preparation, execution
and delivery of this Guaranty, that its counsel
reviewed the foregoing and participated in the
negotiation thereof and any rule of construction
under any applicable law to the effect that
ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation
of this Guaranty.
13. Additional Guarantors.
The initial Guarantors hereunder shall be Bairnco and such of the
Subsidiaries of Bairnco as are signatories hereto on
the date hereof. From time to time subsequent to the
date hereof, additional Subsidiaries of Bairnco may
become parties hereto, as additional Guarantors (each
an "Additional Guarantor"), by executing a
counterpart of this Guaranty. Upon delivery of any
such counterpart to Agent, notice of which is hereby
waived by Guarantors, each such Additional Guarantor
shall be a Guarantor and shall be as fully a party
hereto as if such Additional Guarantor were an
original signatory hereof. Each Guarantor expressly
agrees that its obligations arising hereunder shall
not be affected or diminished by the addition or
release of any other Guarantor hereunder, nor by any
election of Agent not to cause any Subsidiary of
Bairnco to become an Additional Guarantor hereunder.
This Guaranty shall be fully effective as to any
Guarantor that is or becomes a party hereto
regardless of whether any other Person becomes or
fails to become or ceases to be a Guarantor
hereunder.
14, Reaffirmation and Modification of Original Loan Documents.
It is the intention of each of the parties
hereto that the Existing Guaranty be amended and
restated so as to preserve the perfection and
priority of all security interests securing
indebtedness under the Original Credit Agreement, the
Existing Guaranty and the other Loan Documents (as
defined in the Original Credit Agreement) and that
all indebtedness and obligations of the Borrowers and
the guarantors under the Original Credit Agreement,
the Existing Guaranty and the other Loan Documents
(as defined in the Original Credit Agreement) shall
be secured by the Loan Documents and that this
Agreement shall not constitute a novation of the
obligations and liabilities existing under the
Existing Guaranty. The parties hereto further
acknowledge and agree that this Agreement constitutes
an amendment of the Existing Guaranty made under the
terms thereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Guaranty to be executed by their
respective officers thereunder duly authorized as of
the day and year first above written.
BAIRNCO CORPORATION
By: /s/ James W. Lambert
Name James W. Lambert
Title: VP Finance
Address: 300 Primera Boulevard
Suite 432
Lake Mary, Florida 32746
Fax No.: (407) 875-3398
Telephone: (407) 875-2222
KASCO CORPORATION
By: /s/ James W. Lambert
Name: James W. Lambert
Title VP
Address: 300 Primera Boulevard
Suite 432
Lake Mary, Florida 32746
Fax No.: (407) 875-3398
Telephone: (407) 875-2222
ARLON, INC.
By: /s/ James W. Lambert
Name: James W. Lambert
Title: VP
Address: 300 Primera Boulevard
Suite 432
Lake Mary, Florida 32746
Fax No.: (407) 875-3398
Telephone: (407) 875-2222
MII INTERNATIONAL, INC.
By: /s/ James W. Lambert
Name: James W. Lambert
Title: VP
Address: 300 Primera Boulevard
Suite 432
Lake Mary, Florida 32746
Fax No.: (407) 875-3398
Telephone: (407) 875-2222
IN WITNESS WHEREOF, the undersigned Additional
Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly
authorized as of ______________, [1999][200_].
_______________________
____________ _____
(Name of Additional
Guarantor)
By:
__________________
________ Name:
Title:
Address:
__________________
________
__________________________
__________________________
Fax No.:
Telephone:
EXHIBIT J
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT dated as of
February 22, 2000, (hereinafter, as the same may at
any time be amended or modified and in effect,
referred to as this "Agreement"), is by and among
BAIRNCO CORPORATION, a Delaware corporation
(hereinafter called "Bairnco"), ARLON, INC., a
Delaware corporation (hereinafter called "Arlon"),
KASCO CORPORATION, a Delaware corporation
(hereinafter called "Kasco"), MII INTERNATIONAL,
INC., a Delaware corporation ("MII") and each
additional Subsidiary of Bairnco that may become a
party hereto after the date hereof in accordance with
Section 10.3 hereof (together with Bairnco, Arlon and
Kasco, sometimes hereinafter collectively called the
"Companies" and individually a "Company") and BANK OF
AMERICA, N.A ("Bank of America"; the successor by
merger to Bank of America Illinois, formerly known as
Continental Bank, N.A.), as Agent (as defined in the
first recital hereto) and amends and restates in its
entirety that certain Pledge Agreement dated as of
September 27, 1990 (as amended, restated,
supplemented or otherwise modified as of the date
hereof, the "Existing Pledge Agreement"), by and
among Bairnco, Arlon, Kasco, Shielding Systems
Corporation, a Delaware corporation, other
subsidiaries of Bairnco party thereto and Bank of
America, as agent.
RECITALS
WHEREAS, Bairnco, Arlon and Kasco and certain of
Bairnco's other subsidiaries (each of Bairnco, Arlon,
Kasco and such other subsidiaries, individually a
"Borrower" and collectively, the "Borrowers") are
parties to that certain Second Amended and Restated
Credit Agreement dated as of February 22, 2000 (as
the same may be amended, restated, supplemented or
otherwise modified from time to time, hereinafter
referred to as the "Credit Agreement"), with the
banks and other financial institutions which are, or
may become, parties thereto (hereinafter collectively
called the "Lenders" and individually called a
"Lender"), SunTrust Bank, as syndication agent and
Bank of America, as agent for the Lenders (in such
capacity, together with any successors thereto in
such capacity, hereinafter referred to as the
"Agent"), pursuant to which the Lenders have agreed
to make credit available to the Companies and certain
of Bairnco's other Subsidiaries;
WHEREAS, certain or all of the Companies have
entered into or may from time to time enter into or
obtain Hedging Obligations (as defined in the Credit
Agreement) with one or more of the Lenders;
WHEREAS, the Companies have executed and
delivered that certain Guaranty dated as of September
27, 1990, as amended, restated, supplemented or
otherwise modified as of the date hereof (as the same
may be further amended, restated, supplemented or
otherwise modified, the "Guaranty"), in favor of
Agent for the benefit of Lenders, pursuant to which
each Company has guarantied the prompt payment and
performance when due of all Obligations of the
Borrowers under the Credit Agreement, including
without limitation the obligation of the Borrowers to
make payments thereunder in the event of early
termination thereof;
WHEREAS, it is in the best interests of each
Company to execute and deliver this Agreement
inasmuch as each Company will derive substantial
direct and indirect benefits from the financial
accommodations to be made under the Credit Agreement
and the Hedging Obligations;
WHEREAS, the Companies wish to secure the
Companies', the Borrowers' and certain other Persons'
obligations with respect to (i) the Credit Agreement,
(ii) the Guaranty, and (iii) the Hedging Obligations,
all with the collateral provided pursuant to this
Agreement;
WHEREAS, each Company described in Schedule I
hereto is the owner of the shares of stock,
partnership interests, limited liability company
interests and other equity interests (collectively,
the "Equity Interests") and promissory notes
described opposite its name in Schedule I hereto and
may from time to time become the owner of additional
Equity Interests, promissory notes or other
securities evidencing an ownership interest in or
debt of another Person;
WHEREAS, it is a condition precedent to the
Lenders amending and restating the Credit Agreement
on the date hereof that the Existing Pledge Agreement
be amended and restated as provided herein to support
the obligations of the Borrowers and the Companies
under the Credit Agreement and the other Loan
Documents;
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, and
other good and valuable consideration (receipt of
which is hereby acknowledged), the parties hereto,
intending to be legally bound, agree as follows:
1. Definitions.
(A) When used herein, unless
the context shall otherwise require, the following
terms shall have the following meanings:
Collateral means the Debt Collateral and the Equity
Collateral.
Debt Collateral - see Section 2.2 hereof.
Domestic Subsidiary shall mean Arlon, Kasco,
[MII] or any other Subsidiary organized under the
laws of a U.S. jurisdiction.
Equity Collateral - see Section 2.1 hereof.
Foreign Subsidiary means Bertram & Graf GmbH, a
Gesellschaft mit beschraenkter Haftung organized
under the laws of the Federal Republic of Germany,
EuroKasco S.A., a societe anonyme organized under the
laws of France, Atlantic Service Company (U.K.) Ltd.,
an English company, or any other Subsidiary organized
under the laws of a jurisdiction not part of the U.S.
Issuer means the issuer of any of the shares of
stock, promissory notes or other securities
representing all or any of the Collateral.
Permitted Action - see Section 9(b) hereof.
Pledged Notes - see Section 2.2 hereof.
Pledged Equity Interests - see Section 2.1
hereof.
Security Interest shall, when used
with respect to any
Person, mean any interest in any real or personal
property, asset or other right owned or being purchased or
acquired by such Person for its own use, consumption or
enjoyment in its business which secures payment or
performance of any obligation and shall include any
mortgage, lien, pledge, encumbrance, charge or other
security interest of any kind, whether arising under a
security agreement, mortgage, deed of trust, chattel
mortgage, assignment, pledge, financing or similar
statement or notice or as a matter of law, judicial
process or otherwise.
(B) Unless otherwise defined herein, terms defined
in the Credit Agreement shall have the same meaning
used therein notwithstanding any termination thereof.
Terms not otherwise defined herein or in the Credit
Agreement shall have the meaning, if any, ascribed to
them under the Uniform Commercial Code, as it may be
in effect in the State of New York.
2. Grant of Security Interests.
2.1 Equity Collateral. As collateral security for the
prompt and complete payment and performance of all Obligations,
each Company hereby pledges to the Agent and hereby grants
to the Agent a continuing Security Interest in, and hereby
affirms all prior Security Interests granted by it under
the Existing Pledge Agreement in, all of its right, title
and interest in the following, whether now existing or
hereafter arising or acquired (hereinafter collectively
referred to as the "Equity Collateral"):
(A) all of the Equity Interests described in
Schedule I (hereinafter collectively called the "Pledged Equity
Interests"), all of the certificates and/or instruments
representing the Pledged Equity Interests, and all cash,
securities, dividends, distributions, rights to vote or
manage the business of such Person pursuant to
organizational documents governing the rights and
obligations of stockholders, partners, members or other
owners thereof and other rights and other property at any
time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any
or all of the Pledged Equity Interests;
(B) all additional Equity Interests of any Subsidiary
which such Company acquires at any time and from time to
time in any manner,
all of the certificates representing such additional
Equity Interests, all options to purchase, warrants
and rights with respect to any such additional Equity
Interests, all securities convertible into such
additional Equity Interests and all cash, securities,
dividends, distributions, rights to vote or manage
the business of such Person pursuant to
organizational documents governing the rights and
obligations of stockholders, partners, members or
other owners thereof and other rights and other
property at any time and from time to time received,
receivable or otherwise distributed in respect of or
in exchange for any or all of such additional Equity
Interests; provided, however, that to the extent, and
only to the extent, that the Equity Interests of any
Foreign Subsidiary included in the Collateral shall
exceed 65% of all outstanding Equity Interests of
such Foreign Subsidiary, such excess Equity Interests
shall automatically be deemed released from the
Security Interest created hereby;
(C) all other property hereafter delivered to the
Agent in substitution for or in addition to any of
the foregoing, all certificates, promissory notes and
instruments representing or evidencing any such
property and all cash, securities, interest,
dividends, rights and other property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or
all thereof; and
(D) all proceeds, products, profits and returns of
and from any of the foregoing.
TO HAVE AND TO HOLD the Equity Collateral, together
with all rights, titles, interests, privileges and
preferences appertaining or incidental thereto, unto
the Agent, its successors and assigns, forever,
subject, however, to the terms, covenants and
conditions hereinafter set forth.
2.2 Debt Collateral. As collateral security for
the prompt and complete payment and performance of
all Obligations, each Company hereby pledges to Agent
and hereby grants to the Agent a continuing Security
Interest in, and hereby affirms all the prior
Security Interests granted by it under the Existing
Pledge Agreement in, all of its right, title and
interest in the following, whether now existing or
hereafter arising or acquired (hereinafter
collectively referred to as the "Debt Collateral"):
(A) all of the promissory notes described in
Schedule I and all Intercompany Notes (hereinafter
collectively called the "Pledged Notes"), and all of
the indebtedness evidenced thereby, together with
all cash, securities, rights and other property at
any time and from time to time received, receivable
or otherwise distributed in respect of or in
exchange for any or all of the Pledged Notes;
(B) any and all extensions, renewals, replacements or
substitutions of or for any of the foregoing items;
(C) all other property hereafter delivered to the
Agent in substitution for or in addition to any of
the foregoing, all promissory notes, certificates and
instruments representing or evidencing any such
property and all cash, securities, interests, rights
and other property at any time and from time to time
received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof; and
(D) all proceeds, products, profits and returns of
and from any of the foregoing.
TO HAVE AND TO HOLD the Debt Collateral, together
with all rights, titles, interests, privileges and
preferences appertaining or incidental thereto, unto
the Agent, its successors and assigns, forever,
subject, however, to the terms, covenants and
conditions hereinafter set forth.
3. Warranties and Covenants. Each Company warrants
and covenants to the Agent that:
(A) each Company listed in Schedule I hereto owns
the Equity Interests and promissory notes described
as being owned by it in such schedule, free and clear
of all claims and Security Interests of every
description whatsoever, with full right to deliver,
pledge, assign and transfer such Equity Interests and
promissory notes to the Agent as Collateral
hereunder; and each Company is (or at the time of any
future delivery, pledge, assignment or transfer of
other Collateral will be) the legal and equitable
owner of its other Collateral free and clear of all
claims and Security Interests of every description
whatsoever, with full right to deliver, pledge,
assign and transfer such Collateral to the Agent as
Collateral hereunder;
(B) the Agent has and at all times will have as security
for the prompt and complete payment and performance of the
Obligations, a valid perfected Security Interest in the
Pledged Equity Interests, the Pledged Notes and the other
Collateral, subject only to Permitted Liens;
(C) the certificates representing the Equity
Collateral are and at all times will be duly
authorized, validly issued, fully paid and non-
assessable;
(D) all documentary, stamp or other similar taxes or
fees owing in connection with the issuance, transfer
and/or pledge of the Collateral have been paid in
full, and the Companies will hereafter pay all such
taxes or fees as such become due and payable;
(E) the Equity Collateral includes on the date
hereof, and will continue to include at all times not
less than 100% of each Domestic Subsidiary's and 65%
of each Foreign Subsidiary's total shares (preferred,
common or otherwise) of issued and outstanding
capital stock, partnership interests, or limited
liability company interests, as applicable, and any
and all options to purchase, warrants and rights with
respect to any shares of any such stock, partnership
interests, or limited liability company interests, as
applicable, or any securities convertible into shares
of any such stock, partnership interests, or limited
liability company interests, as applicable;
(F) each of the Pledged Notes has been duly
authorized, executed, endorsed, issued and delivered,
and is the legal, valid, and binding obligation of
the maker thereof, enforceable in accordance with its
terms, and is not in default; and each promissory
note pledged to the Agent in the future pursuant
hereto will be duly authorized, executed, endorsed,
issued and delivered, and will be the legal, valid,
and binding obligation of the maker thereof,
enforceable in accordance with its terms, and will
not be in default;
(G) the information contained in Schedule I hereto
is true and accurate in all respects;
(H) each Company shall deliver to the Agent,
promptly upon receipt and in due form for transfer
(e.g., endorsed in blank or accompanied by stock or
bond powers executed in blank), any Collateral
(including, without limitation, additional
certificated Equity Interests of the type referred to
in Section 2.1(b) and additional notes of the type
referred to in Section 2.2(b) hereof, but excluding
dividends or distributions to such Company permitted
under Section 7 of this Agreement) which may at any
time or from time to time be in or come into the
possession or control of such Company; prior to the
delivery thereof to Agent, such Company shall hold
such Collateral separate and apart from its other
property and in express trust for Agent;
(I) each Company that has granted a security
interest in Equity Interests in a partnership or
limited liability company shall deliver to such
partnership or limited liability company an order,
satisfactory in form and substance to Agent,
requesting that the pledge of such Company's Equity
Interest in such partnership or limited liability
company be registered on the books of such limited
liability company or partnership;
(J) so long as any of the Obligations remain
outstanding, each Company, shall, unless the Agent
shall otherwise consent in writing: (A) at its
expense, promptly deliver to the Agent from time to
time, upon the Agent's request, such stock powers and
other documents with respect to the Collateral (which
documents shall be satisfactory in form and substance
to the Agent) as the Agent may reasonably request to
preserve and protect, and to enable the Agent to
enforce, its rights and remedies hereunder; (B) not
sell, assign, exchange or otherwise transfer any of
its right to any of the Collateral, except as
permitted by Section 7.2.8 of the Credit Agreement;
(C) not create or suffer to exist any claim or
Security Interest or encumbrance against, on or with
respect to any of the Collateral except for the
pledge hereunder and the Security Interest created
hereby; (D) not make or consent to any amendment,
modification or waiver with respect to any of the
Collateral, nor enter into any agreement or permit to
exist any restriction with respect to any of the
Collateral other than pursuant hereto; and (E)
neither take nor fail to take any action which would
in any way materially impair the value or
enforceability of the Agent's Security Interest in
any of the Collateral; provided, however, that the
foregoing clauses (A) through (E) shall not apply to
payments, dividends or distributions to any Company
permitted under Section 7 of this Agreement; and
(K) all other information provided herein is true
and correct in all material respects as of the date
hereof and all information with respect to the
Collateral set forth in any schedule, certificate, or
other writing heretofore or hereafter furnished by
any Company to the Agent hereunder and certified by
an Authorized Officer of such Company is and will be
true and correct in all material respects as of the
date furnished and does not and will not omit any
material fact necessary to make the statements not
misleading.
Each representation and warranty made or to be
made herein by each Company shall be deemed remade as
of and at the date of each Loan made from time to
time under or in connection with the Credit Agreement
and at the date of the issuance of any Letter of
Credit under or in connection with the Credit
Agreement with the same affect as if made
contemporaneously with the making of each such Loan
or the issuance of each such Letter of Credit.
4. Processing, Sale, Collections, etc.
(A) Until notice from the Agent to the contrary, given
at any time after the occurrence and during the
continuance of any Default, each Company:
(i) shall, at its own expense, endeavor to collect,
as and when due, all amounts due with respect to any of
the Collateral,
including the taking of such action with respect to such
collection as the Agent may reasonably request or, in
the absence of such request, as such Company may deem
advisable, and
(ii) may grant, until such time as the Agent shall notify
it of the revocation of such power and authority, in the
ordinary course of business, to any Person obligated on any of the
Debt Collateral, any rebate, refund or allowance to which
such Person may be lawfully entitled, and may accept, in
connection therewith, the return of goods, the sale or
lease of which shall have given rise to such Debt
Collateral.
The Agent, however, may at any time, whether before
or after the maturity of any of the Obligations, so long
as a Default shall have occurred and be continuing, (1)
notify any Person obligated on any of the Collateral to
make payment to the Agent of any amounts due or to become
due thereunder; (2) enforce collection of any of the
Collateral by suit or otherwise;
(3) surrender, release or exchange all or any part of the
Collateral, or compromise or extend or renew for any
period (whether or not longer than the original period)
any indebtedness thereunder or evidenced thereby; (4)
notify any Company (and upon receipt of such notice such
Company agrees to notify, at its sole expense, any
parties obligated on any of the Collateral) to make
payment to Agent of any amount due or to become due under
the Collateral; (5) transfer all or any part of the
Collateral into the name of Agent or its nominee, with or
without disclosing that such Collateral is subject to the
Security Interest hereunder; and (6) take control of any
proceeds of the Collateral.
(B) If and to the extent that a perfected Security
Interest hereunder in any Collateral shall cease to be perfected
for any reason whatsoever (including, without limitation,
release of all or any balance in any account of any
Company or use or disposition by any Company of any
proceeds of Collateral), then such Collateral (referred
to in this paragraph as "released Collateral") shall be
deemed thereby released from the Security
Interest hereunder in exchange, as of the time of
such release, for any other Collateral of equivalent
value in which a perfected Security Interest is being
obtained contemporaneously or has been most recently
obtained hereunder, but only to the extent such other
Collateral does not represent either (x) Collateral
in exchange for which any previously released
Collateral shall have been deemed released, or (y)
Collateral of equivalent value to any loan or
financial accommodation (otherwise than by renewal or
extension) from any Lender or the Agent to any
Company in which Collateral a perfected Security
Interest hereunder shall have been obtained
contemporaneously with or most recently prior to such
loan or advance.
(C) Upon the written request of the Agent, to be given at
the Agent's discretion at any time after the occurrence
and during, the continuance of any Default, each
Company will, forthwith upon receipt, transmit and
deliver to the Agent in the form received, all cash,
checks, drafts and other instruments or writings for
the payment of money (properly endorsed, where
required, so that such items may be collected by the
Agent, but excluding payments, dividends or
distribution; to any Company permitted under Section
7 of this Agreement) which may be received by such
Company at any time in full or partial payment or
other proceeds of any Collateral. Except as the
Agent may otherwise consent in writing, after the
occurrence and during the continuance of a Default,
any such items which may be so received by such
Company will not be commingled by such Company with
any of its other funds or property, but, until
delivery to the Agent, will be held separate and
apart from such other funds and property and in trust
for the Agent.
(D) Once a Default shall have occurred and be
continuing, all items or amounts which are delivered
by any Company to the Agent (or collected directly by
the Agent, as the case may be) on account of partial
or full payment or otherwise as proceeds of any of
the Collateral shall be deposited to the credit of a
deposit account (hereinafter referred to as the
"Restricted Account") of the Companies with the
Agent, as security for performance and payment of the
Obligations. Such Company shall have no right to
withdraw any funds deposited in the Restricted
Account. Once a Default shall have occurred and be
continuing, the Agent may, from time to time, in its
discretion, apply all or any of the then balance in
the Restricted Account toward payment of the
Obligations, in such order of application as the
Agent may determine, and the Agent may (but will not
be required to), from time to, time, in its
discretion, release all or any of such balance
representing collected funds to Bairnco (for
distribution to the Companies according to their
interests) by deposit thereof to the aforementioned
general deposit account.
(E) The Agent is authorized to endorse, in the name
of each Company, any item, howsoever received by the
Agent, representing any Collateral or any payment on
or other proceeds of any of the Collateral.
5. Agreements of the Companies. Each Company shall:
(A) furnish the Agent such information concerning
each Company and the Collateral as the Agent may
from time to time reasonably request.
(B) defend each Company's title to the Collateral
against all Persons and against all Liens, claims and
demands whatsoever.
(C) upon request of the Agent, stamp on its records
concerning the Collateral (and/or enter into its
computer records concerning the Collateral), a
notation, in form satisfactory to the Agent, of the
Security Interest created hereby.
(D) reimburse the Agent for all reasonable expenses,
including reasonable attorneys' fees and legal
expenses, incurred by the
Agent in seeking to collect or enforce any rights
under or with respect to the Collateral, in seeking
to collect the Notes and all other Obligations, and
in enforcing its rights hereunder, together with
interest thereon from the date incurred until
reimbursed by the Companies at a rate per annum equal
to the Alternate Reference Rate plus a margin of
2.5%.
(E) at the Agent's request, after the occurrence and
during the continuance of a Default, transfer all or
any part of the Collateral into the name of the Agent
or its nominee, with or without disclosing that such
Collateral is subject to the Security Interest
hereunder.
(F) not make or consent to any amendment, other
modification or waiver with respect to any of the
Collateral.
(G) not take or fail to take any action which would
in any manner impair (i) any obligation of the Issuer
of any Pledged Equity Interests or the Pledged Notes
or any other obligor with respect to an instrument
constituting Collateral, or (ii) the enforceability
of the Agent's Security Interest in any of the
Collateral.
(H) comply in all material respects with all laws,
rules and regulations relating to, and promptly pay
when due all fees, taxes, assessments and other
charges which may be levied upon or assessed against,
the ownership of the Collateral; provided, however,
that such Company shall not be required to comply
with any such law, rule or regulation, or to pay any
such fee, tax, assessment or other charge, the
validity of which is being contested by such Company
in good faith by appropriate proceedings so long as
forfeiture of any part of the Collateral will not
result from the failure of such Company to comply
with any such law, rule or regulation, or to pay any
such fee, tax, assessment or other charge; during the
period of such contest and such Company maintains
adequate reserves in accordance with GAAP in
connection with such contest.
(I) permit the Agent and designees of the Agent, at
reasonable times, to inspect, audit and make copies
of and extracts from all records and all other papers
which pertain to the Collateral in the possession of
such Company and shall, upon request of the Agent,
deliver to the Agent all of such records and papers
which pertain to the Collateral and all Persons
obligated with respect thereto.
6. Certain Rights of Agent.
(A) The Agent may, from time to time, after the
occurrence and during the continuance of any Default,
without notice to any Company, take all or any of the
following actions: (i) transfer all or any part of
the Collateral into the name of the Agent or any
nominee or agent for the Agent, with or without
disclosing that such Collateral is subject to the
Security Interest hereunder, (ii) appoint one or more
agents or nominees for the purpose of retaining
physical possession of the Collateral, (iii) notify
the parties obligated on any of the Collateral to
make payment to the Agent of any amounts due or to
become due thereunder, (iv) enforce collection of any
of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any
period (whether or not longer than the original
period) any obligations of any nature of any party
with respect thereto, (v) endorse any checks, drafts
or other writings in the name of any Company to
enable the Agent to collect the Collateral and (vi)
take control of the Collateral.
(B) The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral if
it takes such action for that purpose as any Company
shall request in writing, but failure of the Agent to
comply with any such request shall not of itself be
deemed a failure to exercise reasonable
care, and any failure of the Agent to preserve or
protect any rights with respect to the Collateral
against prior parties, or to do any act which any
Company does not so request with respect to
preservation of the Collateral shall not be deemed a
failure to exercise reasonable care in the custody or
preservation of any Collateral.
(C) No delay on the part of the Agent or any Lender
in exercising any right, power or remedy shall
operate as a waiver thereof, nor shall the single or
partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. No
amendment, modification or waiver of, or any consent
with respect to, any provision of this Agreement
shall in any event be effective unless the same shall
be in writing, and signed and delivered by the party
to be bound thereby, and then such amendment,
modification, waiver or consent shall be effective
only in the specific instance and for the purpose for
which given.
(D) All of each Company's obligations and all of the
Agent's rights, powers and remedies specified herein
are in addition to all other obligations, rights,
powers and remedies required of or possessed by them,
including, without limitation, those provided by
applicable law or in any other written instrument or
agreement relating to any of the Obligations or any
security therefor.
Each Company agrees that, if at any time all or any
part of any payment theretofore applied by the Agent
to any of the Obligations is or must be rescinded or
returned by the Agent for any reason whatsoever
(including, without limitation, the insolvency,
bankruptcy or reorganization of any Company) such
obligations shall, for the purposes of this
Agreement, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued
in existence, notwithstanding such application by the
Agent, and this Agreement shall continue to be
effective or be reinstated, as the case may be, as to
such Obligations all as though the Agent had not made
such application.
(E) After the occurrence and during the continuance
of a Default, the Agent may from time to time,
without notice to any Company, at its option, perform
any material obligation to be performed by any
Company hereunder, under the Credit Agreement or
under the Loan Documents which shall not have been
performed and take any other action which the Agent
deems necessary for the maintenance or preservation
of any of the Collateral or its Security Interest in
the Collateral. All moneys advanced by the Agent in
connection with the foregoing shall, whether or not
there are then outstanding any credit extensions made
under the Credit Agreement or the Credit Agreement is
in effect, bear interest at the Alternate Reference
Rate plus a margin of 2.5% (or such lower maximum
rate as shall be legal under applicable law), and
shall be repaid together with such interest by the
Companies to the Agent, upon the latter's demand, and
shall be secured hereby prior to any other
indebtedness or obligation secured hereby, but the
making of any such advance by the Agent shall not
relieve any Company of any default hereunder or
thereunder.
(F) The powers conferred on the Agent hereunder are
solely to protect its interest (on behalf of the
holders of the Obligations) in the Collateral and
shall not impose any duty on it to exercise any such
powers. Except for the safe custody of any Collateral
in its possession and the accounting for moneys
actually received by it hereunder, the Agent shall
have no duty as to any Collateral or responsibility
for (i) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or
not the Agent has or is deemed to have knowledge of
such matters, or (ii) taking any necessary steps to
preserve
rights against prior parties or any other rights
pertaining to
the Collateral.
7. Voting Rights, Dividends, etc.
(A) Notwithstanding certain provisions of Sections 4
and 6 and hereof, unless and until a Default shall
have occurred and be continuing:
(i) Each Company shall be entitled to exercise
any and all voting or consensual rights and powers
and stock purchase or subscription rights (but any
such exercise by such Company of stock purchase or
subscription rights may be made only from such
Company's funds which do not comprise part of the
Collateral and in compliance with the Credit
Agreement) relating or pertaining to the Collateral
or any part thereof for any purpose; provided,
however, that each Company agrees that it will not
exercise any such right or power in any manner which
would have a material adverse effect on the value of
the Collateral or any part thereof or would approve
or cause a Default under the Credit Agreement.
(ii) Each Company shall be entitled to receive and retain
any and all payments of principal, interest, distributions and
dividends in respect of the Collateral which are paid in
cash. All payments, dividends and distributions in respect
of the Collateral or any part thereof made in promissory
notes, shares of stock, other Equity Interests or other
property other than cash, or representing any non-cash
return of capital, whether resulting from a subdivision,
combination or reclassification of the Collateral or any
part thereof or received in exchange for the Collateral or
any part thereof or as a result of any merger,
consolidation, acquisition or other exchange of assets to
which any Issuer may be a party or otherwise or as a
result of any exercise of any stock purchase or
subscription right, shall become and be part of the
Collateral and shall be Collateral hereunder and, if
received by or on behalf of any Company, shall be
forthwith delivered to the Agent in due form for transfer
(e.g., endorsed in blank or accompanied by stock or bond
powers executed in blank) to be held for the purposes of
this Agreement.
(iii) The Agent shall execute and deliver,
or cause to be executed and delivered, to each Company,
all such proxies, powers of attorney and other instruments
as such Company may request for the purpose of enabling
such Company to exercise the rights and powers which it is
entitled to exercise pursuant to clause (i) or (ii) above.
(B) Upon the occurrence of a Default, and so long as
the same shall be continuing (but only for so long as
the same shall be continuing), all rights and powers
of each Company to receive and retain payments
pursuant to Section 7(a)(ii) hereof shall cease
forthwith upon notice from the Agent to such Company,
and all such rights and powers shall thereupon become
vested in the Agent. During the continuance of a
Default and following the giving of such notice from
the Agent to such company, the Agent shall have the
sole and exclusive authority to exercise such rights
and powers to receive such payments. The Agent shall
retain any and all money and other property paid over
to or received by the Agent pursuant to this
paragraph (b) as additional Collateral hereunder and
shall apply such money or other property in
accordance with the provisions hereof.
8. Remedies.
(A) Whenever a Default shall occur and be
continuing, (i) all obligations may or shall, as the case
may be, become immediately due and payable, as provided in
Section 8.2 or 8.3 of the Credit Agreement, as the case may be, (ii)
the Agent may exercise, from time to time, any rights
or remedies available to it under applicable law or
otherwise available to it, (iii) the Agent shall have
the right, for and in the name, place and
stead of each Company, to execute endorsements,
assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of
the Collateral and (iv) the Agent may, without demand
or notice of any kind, appropriate and apply any
balances, credits, deposits, accounts or moneys of
each Company which constitute Collateral or proceeds
of Collateral and are with any of the Lenders toward
the payment of such of the Obligations, and in such
order of application, as the Agent, in its sole
discretion, may from time to time elect. Without
limiting the foregoing, upon Default, the Agent may,
to the fullest extent permitted by applicable law,
without notice, advertisement, hearing or process of
law of any kind, (i) sell any or all of the
Collateral at any public or private sale or brokers'
board, free and clear of all rights and claims
therein and thereto of any Company or of any other
Person claiming by, through or under any Company and
(ii) bid for and purchase any or all of the
Collateral at any such sale.
(B) Each Company hereby expressly waives, to the
fullest extent permitted by applicable law, any and
all notices, advertisements, hearings or process of
law in connection with the Agent's exercise of any of
its rights or remedies after Default occurs. If any
notification of intended disposition of any of the
Collateral is required by law, such notification, if
mailed, shall be deemed reasonably and properly given
if mailed at least five (5) days before such
disposition, postage prepaid, and addressed to
Bairnco (for distribution by Bairnco to each Company)
either at the address of Bairnco shown in the Credit
Agreement or at any other address of Bairnco which
appears on the Agent's records. The Agent may apply
any proceeds of any of the Collateral to the payment
of expenses which the Agent incurs in connection with
the enforcement of this Agreement, including, without
limitation, reasonable attorneys' fees and legal
expenses. The Agent may apply any balance of such
proceeds toward the payment of such of the
Obligations, and in such order of application, as the
Agent may, in its sole discretion, elect from time to time.
(C) Each Company agrees that in any sale of any of the
Collateral, the Agent is hereby authorized to comply
with any limitation or restriction in connection with
such sale as the Agent's counsel may advise the Agent
is necessary in order to avoid any violation of
applicable law (including, without limitation,
compliance with such procedures as may restrict the
number of prospective bidders and purchasers and/or
further restrict such prospective bidders or
purchasers to Persons who will represent and agree
that they are purchasing for their own account for
investment and not with a view to the distribution or
resale of such Collateral) or in order to obtain any
required approval by any governmental or regulatory
authority or official of such sale or purchase. Each
Company further agrees that such compliance shall not
result in such sale being considered or deemed not to
have been made in a commercially reasonable manner,
nor shall the Agent be liable or accountable to any
Company for any discount allowed by reason of the
fact that such Collateral shall have been sold in
compliance with any such limitation or restriction.
(D) If sufficient sums are not realized upon any
disposition of the Collateral to pay all Obligations
and any expenses of such disposition, including,
without limitation, attorneys' fees and expenses, the
Companies jointly and severally hereby promise to pay
immediately any resulting deficiency.
(E) No right or remedy herein conferred is intended
to be exclusive of any other right or remedy, but
every such right or remedy shall be cumulative and
shall be in addition to every other right or remedy
herein conferred, or conferred upon the
Agent and the Lenders by any other agreement or
instrument or security, or now or hereafter existing at
law or in equity or by statute.
9. Authority of the Agent and Lenders.
(A) The Agent shall have and be entitled to exercise, all such
powers hereunder as are specifically delegated to the Agent by the terms
hereof, together with such powers as are incidental
thereto. The Agent may execute any of its duties hereunder
by or through agents, or employees and shall be entitled
to retain counsel and to act in reliance upon the advice
of such counsel concerning all matters pertaining to its
duties hereunder. Neither the Agent nor any director,
officer, employee, or agent of the Agent shall be liable
for any action taken or omitted to be taken by it or them
hereunder or in connection herewith, except for its or
their own gross negligence or willful misconduct. Each
Company hereby agrees to reimburse the Agent, on demand,
for all reasonable costs and expenses which the Agent may
incur in connection with the administration or enforcement
of this Agreement (including costs and expenses incurred
by any sub-agent employed by the Agent) and agrees to
indemnify and hold harmless the Agent and any such sub-
agent from and against any and all liability which the
Agent or such sub-agent may incur hereunder or in
connection herewith, unless such liability shall be due to
willful misconduct or gross negligence on the part of the
Agent or such sub-agent.
(B) If at any time, whether before or after any of the
Obligations shall be due and payable, the Agent or any
Lender takes any or all of the Permitted Actions (as
hereinafter defined), then such actions shall not affect
the enforceability of this Agreement, the Credit
Agreement, or any of the other Related Documents or the
Obligations. The Agent or a Lender, as the case may be,
shall have taken a Permitted Action if it shall: (i)
retain or obtain a security interest in any property to
secure any of the Obligations; (ii) retain or obtain the
primary or secondary obligation of any obligor or
obligors, in addition to the Companies', with respect to
any of the Obligations; (iii) extend or renew any of the
Obligations for one or more periods (whether or not longer
than the original period), alter or exchange any of the
Obligations, or release or compromise any obligation of
any nature of any obligor with respect to any of the
Obligations; (iv) release or fail to perfect its Security
Interest in, or impair, surrender, release or permit any
substitution or exchange for, all or any part of any
property securing any of the Obligations or any
obligations hereunder, or extend or renew for one or more
periods (whether or not longer than the original period)
or release, compromise, alter or exchange any obligations
of any nature of any obligor with respect to any such
property; and (v) resort to the Collateral (or any
thereof) for payment of any of the Obligations when due,
whether or not Agent or the Lenders shall have resorted to
any property securing any of the Obligations or shall have
proceeded against any Company or against any other obligor
primarily or secondarily obligated with respect to any of
the Obligations (all of the actions referred to in this
clause (v) being hereby expressly waived by each Company).
(C) The Agent, in its sole discretion, may apply any amounts
which it receives from whatever source on account of the
Obligations toward the payment of the
Obligations in such order of application as the
Agent, in its sole discretion, may from time to
time elect, subject to the terms and provisions
of the Credit Agreement. Notwithstanding any
payments made by or for any Company's account
pursuant to this Agreement, no Company shall be
subrogated to any rights of the Agent until such
time as the Commitments and the Letters of
Credit shall have expired or
terminated and the Agent and the Lenders shall
have received final payment and full performance
of all obligations.
(D) No release from the Security Interest created by
this Agreement of any part of the Collateral by the
Agent shall in any way alter, vary or diminish the
force or effect of any Security Interest created by
this Agreement against the balance or remainder of
the Collateral.
(E) The Agent and any of the officers, employees,
agents or auditors of the Agent shall have the right
at reasonable intervals after the date hereof to make
reasonable inquiries by mail, telephone, telegraph or
otherwise to any Person with respect to the validity
and amount or any other matter (including, without
limitation, the assertion by any Person of claims or
offsets and counterclaims) concerning any of the
Collateral.
10. General.
10.1 Companies Waive Certain Rights; Subrogation.
(A) Each Company hereby expressly waives: (i) notice
of the Agent's acceptance of this Agreement, (ii)
notice of the existence or creation or nonpayment of
all or any of the Obligations, (iii) to the fullest
extent permitted by law, presentment, demand, notice
of dishonor, protest, and all other notices
whatsoever, and (iv) all diligence in collection or
protection of or realization upon the Obligations or
any part thereof, any obligation hereunder or any
security for or guaranty of any of the foregoing.
(B) Each Company hereby irrevocably waives
any claim or other rights which it may now or
hereafter acquire against any other
Company or any Obligor that arise from the existence,
payment, performance or enforcement of any Company's
or Obligor's obligation under this Agreement or any
other Loan Document, including any right of
subrogation, reimbursement, exoneration, or
indemnification, any right to participate in any
claim or remedy of the Lenders against any Company or
Obligor or any collateral which the Agent now has or
hereafter acquires, whether or not such claim, remedy
or right arises in equity, or under contract, statute
or common law, including the right to take or receive
from any Company or any Obligor, directly or
indirectly, in cash or other property or by set-off
or in any manner, payment or security on account of
such claim or other rights. If any amount shall be
paid to any Company in violation of the preceding
sentence and the Obligations shall not have been paid
in cash in full and the Commitments have not been
terminated, such amount shall be deemed to have been
paid to such Company for the benefit of, and held in
trust for, the Lenders, and shall forthwith be paid
to the Lenders to be credited and applied to the
Obligations, whether matured or unmatured.
10.2 Authorization of Additional Obligations. The
creation or existence from time to time of additional
Obligations is hereby authorized, without notice to
any Company, and shall in no way affect or impair the
Agent's rights and each Company's obligations under
this Agreement or any other Loan Document.
10.3 Additional Companies. From time to time
subsequent to the date hereof, additional
Subsidiaries of Bairnco may become parties hereto as
additional Companies (each an "Additional Company"),
by executing a Counterpart substantially in the form
of Exhibit I annexed hereto. Upon delivery of any
such Counterpart to Agent, notice of which is hereby
waived by Companies, each such Additional Company
shall be a Company and shall be as fully a party
hereto as if such Company were an original signatory
hereto. Each Company expressly agrees that its
obligations arising hereunder shall not be affected or
diminished by the addition or release of any other
Company hereunder, nor by any election of Agent not
to cause any Subsidiary of Bairnco to become an
Additional Company hereunder. This Agreement shall be
fully effective as to any Company that is or becomes
a party hereto regardless of whether any other Person
becomes or fails to become or ceases to be a Company
hereunder.
10.4 Assignment of Obligations. The Agent
or any Lender may, from time to time, whether before
or after any of the obligations shall be due, in its
sole discretion and without notice to any Company
(but subject to the terms and provisions of the
Credit Agreement), assign or transfer any or all of
its interest in the Obligations; and, notwithstanding
any such assignment or transfer or any subsequent
assignment or transfer thereof, such Obligations
shall be and remain Obligations for purposes of this
Agreement, and each and every immediate and
successive assignee or transferee of any of the
Obligations or of any interest therein shall, to the
extent of such assignee's or transferee's interest in
the Obligations, be entitled to the benefits of this
Agreement to the same extent as if such assignee or
transferee were the Agent or such Lender (as the case
may be).
10.5 Notices. Notices shall be given in the manner
provided for in, and shall be subject to the terms
of, Section 10.2 of the Credit Agreement.
10.6 Captions. Section captions used in this
Agreement are for convenience of reference only, and
shall not affect the construction of this Agreement.
10.7 Counterpart. This Agreement may be executed in
any number of counterparts and by the different
parties on separate counterparts and each such
counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but
one and the same Agreement.
10.8 Continuing Agreement; Reassignment. This
Agreement shall in all respects be a continuing
Agreement and shall remain in full force and effect
until expiration or termination of the Commitments
and the Letters of Credit and final payment and
performance in full of all Obligations. Upon the
expiration or termination of the Commitments and the
Letters of Credit, the Agent, upon the Companies
request and at the Companies' expense, shall reassign
and redeliver (or cause to be reassigned and
redelivered) to the Companies, or to such Person or
Persons as any Company shall designate, such of the
Collateral, (if any), as the Agent shall not have
sold or otherwise applied pursuant to the terms
hereof and shall still be holding hereunder, together
with appropriate instruments of reassignment and
release. Any such reassignment shall be without
recourse upon or representation or warranty by the
Agent except a warranty that the Agent has not
encumbered or otherwise reassigned such Collateral,
and shall be at the Companies' sole cost and expense.
10.9 Governing Law. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. WHEREVER
POSSIBLE, EACH PROVISION OF THIS AGREEMENT SHALL BE
INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND
VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF
THIS AGREEMENT SHALL BE PROHIBITED BY OR INVALID
UNDER SUCH LAW, SUCH PROVISION SHALL BE INEFFECTIVE
ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY,
WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION
OR THE REMAINING PROVISIONS OF THIS AGREEMENT.
Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be
effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by of
invalid under such law, such provision shall be
ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of
such provision or the remaining provisions of the
Agreement.
10.10 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY COMPANY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER,
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY
OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY
MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS
OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. BY EXECUTING AND DELIVERING
THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN
ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO IT AT ITS ADDRESS PROVIDED
IN ACCORDANCE WITH SECTION 10.4;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE
(III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER ITSELF IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION
10.9 RELATING TO JURISDICTION AND VENUE SHALL BE
BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS
LAW SECTION 5-1402 OR OTHERWISE.
10.11 Waiver of Jury Trial.
THE AGENT, THE LENDERS AND THE
BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DELAING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT,
THE LENDERS OR THE BORROWERS. EACH BORROWER
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING
INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
10.12 Successors and Assigns. This Agreement
shall be binding upon each Company and the Agent and their
respective successors and assigns, and shall inure to
the benefit of each Company and the Agent and their
respective successors and assigns.
10.13 Entire Agreement.
Subject to Section 10.17, this
Agreement and related documents as specifically
described supersede any prior agreement or
understanding of the parties hereto, and constitute
the entire agreement of the parties hereto, with
respect to the matters covered hereby.
10.14 Joint and Several Obligations; Security
Interest Absolute.
(A) All obligations of the Companies
hereunder are joint and several obligations and
failure by one Company to perform its obligations
under or relating to this Agreement shall
not relieve any other Company of any obligation under or
relating to this Agreement, the Credit Agreement or any other Loan
Document.
(B) All rights of the Agent and the Security
Interest granted to the Agent hereunder, and all
obligations of the Companies hereunder, shall be
absolute and unconditional, irrespective of (i) any
lack of validity or enforceability of the Credit
Agreement, the Notes, the Letters of Credit or any
other Loan Document or any instrument relating
thereto, or (ii) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, a guarantor or a third party grantor of
a security interest.
10.15 Agent as Attorney In Fact. Each Company hereby
appoints Agent, with full power of substitution, as
such Company's attorney in fact for the purpose of
carrying out the provisions of this Agreement and
taking any action and executing any instrument which
Agent may deem necessary or advisable to accomplish
the purposes hereof, which appointment is irrevocable
and coupled with an interest.
10.16 No Conditions to Effectiveness. Each
Company hereby acknowledges that there are no
conditions to the effectiveness of this Agreement.
10.17 The Companies to Remain Liable. Each of the
Companies hereby expressly agrees that, anything
herein to the contrary notwithstanding, it shall
remain liable under any contract, agreement, interest
or obligation assigned to the Agent hereunder to
observe and perform all of the conditions and
obligations to be observed and performed by such
Company thereunder, all in accordance with and
pursuant to the terms and provisions thereof. The
exercise by the Agent of any of the rights assigned
hereunder shall not release the Companies from any of
their duties or obligations under any such contract,
agreement, interest or obligation. The Agent shall
not have any duty, responsibility, obligation or
liability under any such contract, agreement,
interest or obligation by reason of or arising out of
the assignment thereof to the Agent or the granting
to the Agent of a Security Interest therein or the
receipt by the Agent of any payment relating to any
such contract, agreement, interest or obligation
pursuant hereto, nor shall the Agent be required or
obligated in any manner to perform or fulfill any of
the obligations of the Companies thereunder or
pursuant thereto, or to make any payment, or to make
any inquiry as to the nature or sufficiency of any
payment received by it or the sufficiency of any
performance of any party under any such contract,
agreement, interest or obligation, or to present or
file any claim, or to take any action to collect or
enforce any performance or the payment of any amounts
which may have been assigned to it, in which it may
have been granted a Security Interest or to which it
may be entitled at any time or times.
10.18 Reaffirmation and Modification of Original
Loan Documents. It is the intention of each of the
parties hereto that the Existing Pledge Agreement be
amended and restated to confirm and continue the
security interests granted thereby and so as to
preserve the perfection and priority of all security
interests securing indebtedness under the Original
Credit Agreement and the other Loan Documents (as
defined in the Original Credit Agreement) and that
all indebtedness and obligations of the Borrowers and
the guarantors under the Original Credit Agreement
and the other Loan Documents (as defined in the
Original Credit Agreement) shall be secured by this
Agreement and the other Loan Documents and that this
Agreement shall not constitute a novation of the
obligations and liabilities existing under the
Existing Pledge Agreement. The parties hereto
further acknowledge and agree that this Agreement
constitutes an amendment of the Existing Pledge
Agreement made under the terms thereof.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as of the above date.
BAIRNCO CORPORATION
By: /s/ James W. Lambert
Name: James W. Lambert
Title: VP Finance
ARLON, INC.
By: /s/ James W. Lambert
Name: James W. Lambert
Title: VP
KASCO CORPORATION
By: /s/ James W. Lambert
Name: James W. Lambert
Title: VP
MII INTERNATIONAL, INC.
By: /s/ James W. Lambert
Name: James W. Lambert
Title: VP
BANK OF AMERICA,
N.A., as Agent
By:
Name:
Title:
EXHIBIT I TO PLEDGE AGREEMENT
[FORM OF COUNTERPART]
COUNTERPART (this "Counterpart"), dated
_______, is delivered pursuant to Section 10.3
of the Pledge Agreement
referred to below. The undersigned hereby agrees
that this Counterpart may be attached to the
Amended and Restated Pledge Agreement, dated as of
February 22, 2000 (as it may be from time to time
amended, modified or supplemented, the "Pledge
Agreement"; capitalized terms used herein not
otherwise defined herein shall have the meanings
ascribed therein), among Bairnco Corporation, a
Delaware corporation, the other Companies named
therein, and Bank of America, N.A., as Agent. The
undersigned by executing and delivering this
Counterpart hereby becomes a Company under the
Pledge Agreement in accordance with Section 10.3
thereof and agrees to be bound by all of the terms
thereof.
[Without limiting the generality of the
foregoing, the
undersigned hereby:
(i) authorizes the Agent to add the
information set forth on the Schedules
to this Agreement to the correlative
Schedules attached to the Security
Agreement ;
(ii) agrees that all Collateral of the
undersigned,
including the items of property
described on the Schedules hereto, shall
become part of the Collateral and shall
secure all Obligations; and
(iii) makes the representations and
warranties set forth in the Pledge
Agreement, as amended hereby, to the
extent relating to the undersigned.]
[NAME OF ADDITIONAL COMPANY]
By:
_______________________
____
Name:
Title:
EXHIBIT K
AMENDED AND RESTATED SECURITY AGREEMENT
dated as of February 22, 2000 by and among
BAIRNCO CORPORATION,
KASCO CORPORATION,
ARLON, INC.,
MII INTERNATIONAL, INC.
Other U.S.
Subsidiaries
of Bairnco Corporation
and
BANK OF AMERICA, N.A.,
as Agent
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT dated as
of February 22, 2000 (hereinafter, as the same may
at any time be amended or modified and in effect,
referred to as this "Agreement") is entered into by
and among BAIRNCO CORPORATION, a Delaware corporation
("Bairnco"), ARLON, INC., a Delaware corporation
("Arlon"), KASCO CORPORATION, a Delaware corporation
("Kasco"), MII International, Inc., a Delaware
corporation ("MII") and the other Subsidiaries of
Bairnco that may become a party hereto in accordance
with Section 16(q) hereof (together with Bairnco,
Arlon and Kasco are hereinafter sometimes
collectively referred to as the "Companies" and
individually as a "Company"), and BANK OF AMERICA,
N.A., ("Bank of America"; the successor by merger to
Bank of America Illinois, formerly known as
Continental Bank, N.A.), as Agent (as defined in the
first recital hereto) and amends and restates in its
entirety that certain Security Agreement dated as of
September 27, 1990 (as amended, restated,
supplemented or otherwise modified as of the date
hereof, the "Existing Security Agreement"), by and
among Bairnco, Arlon, Kasco, Shielding Systems
Corporation, a Delaware corporation, other
subsidiaries of Bairnco party thereto and Bank of
America, as agent.
RECITALS
WHEREAS, Bairnco, Arlon and Kasco and certain of
Bairnco's subsidiaries (each of Bairnco, Arlon, Kasco
and such other subsidiaries, individually a
"Borrower" and collectively, the "Borrowers") are
party to that certain Second Amended and Restated
Credit Agreement dated as of February ___, 2000 (as
the same may be amended, restated, supplemented or
otherwise modified from time to time, hereinafter
referred to as the "Credit Agreement") with the banks
and other financial institutions which are, or may
become, parties thereto (hereinafter collectively
called the "Lenders" and individually called a
"Lender"), Sun Trust Bank, as syndication agent, and
Bank of America, N.A., as agent for the Lenders (in
such capacity, together with any successors thereto
in such capacity, hereinafter referred to as the
"Agent"), pursuant to which the Lenders have agreed
to make credit available to the Companies and certain
of Bairnco's other Subsidiaries;
WHEREAS, certain or all of the Companies have entered
into or may from time to time enter into or obtain
Hedging Obligations (as defined in the Credit
Agreement) with one or more of the Lenders; WHEREAS,
the Companies have executed and delivered that
certain Guaranty dated as of September 27, 1990, as
amended, restated, supplemented or otherwise modified
as of the date hereof, (as the same may be further
amended, restated, supplemented or otherwise
modified, the "Guaranty") in favor of Agent for the
benefit of Lenders, pursuant to which each Company
has guarantied the prompt payment and performance
when due of all Obligations of the Borrowers under
the Credit Agreement, including without limitation
the obligation of the Borrowers to make payments
thereunder in the event of early termination thereof;
WHEREAS, it is in the best interests of each Company
to execute and deliver this Agreement inasmuch as
each Company will derive substantial direct and
indirect benefits from the financial accommodations
to be made under the Credit Agreement and the Hedging
Obligations;
WHEREAS, the Companies wish to secure the Companies',
the Borrowers' and certain other Persons' obligations
with respect to (i) the Credit Agreement, (ii) the
Guaranty, and (iii) the Hedging Obligations, all with
the collateral provided pursuant to this Agreement;
WHEREAS, it is a condition precedent to the Lenders
amending and restating the Credit Agreement on the
date hereof that the Existing Security Agreement be
amended and restated as provided herein to support
the obligations of the Borrowers and the Companies
under the Credit Agreement and the other Loan
Documents;
NOW, THEREFORE, in consideration of the premises and
of the mutual covenants herein contained, and other
good and valuable consideration (the receipt and
sufficiency of which are hereby
acknowledged), the parties hereto, intending to be
legally bound, agree as follows:
1. Definitions.
(a) When used herein, unless the
context shall otherwise require, the following terms,
shall have the following meanings:
"Account" shall mean (i) any account receivable,
and (ii) any other amount payable to a Company for any reason
whatsoever. "Benefits" shall have the meaning
assigned to such term in Section 17 hereof.
"Certificated Security" shall have the meaning
assigned to such term in the Uniform Commercial Code.
"Chattel Paper" shall have the meaning assigned
to such term in the Uniform Commercial Code.
"Computer Hardware and Software" shall mean (i)
all computer and other electronic data processing
hardware, integrated computer systems, central
processing units, memory units, display terminals,
printers, features, computer elements, card readers,
tape drives, hard and soft disk drives, cables,
electrical supply hardware, generators, power
equalizers, accessories and all peripheral devices
and other related computer hardware, whether now
owned, licensed or leased or hereafter acquired by
any Company; (ii) all software programs, whether now
owned, licensed or leased or hereafter acquired by
any Company, designed for use on the computers and
electronic data processing hardware described in
clause (i) above, including, without limitation,
operating system software, utilities and application
programs in whatever form (source code and object
code in magnetic tape, disk or hard copy format or
any other listings whatsoever); (iii) all firmware
associated therewith, whether now owned, licensed or
leased or hereafter acquired by any Company; and (iv)
all documentation for such hardware, software and
firmware described in the preceding clauses (i), (ii)
and (iii), whether now owned, licensed or leased or
hereafter acquired by any Company, including, without
limitation, flow charts, logic diagrams, manuals,
specifications, training materials, charts and pseudo
codes.
"Default Rate" shall mean the Alternate Reference
Rate plus a margin of 2.5%.
"Document" shall have the meaning assigned to such
term in the Uniform Commercial Code.
"Equipment" shall mean all furniture,
furnishings, fixtures, machinery and equipment of any
of the Companies of every description used or useful
in the conduct of such Company's business, and all
accessories, accessions, additions, attachments,
substitutions, replacements, improvements, parts and
other property now or hereafter affixed thereto or
used in connection therewith.
"Fixture" shall have the meaning assigned to such
term in the Uniform Commercial Code.
"General Intangibles" shall have the meaning assigned
to such term in the Uniform Commercial Code.
"Goods" shall have the meaning assigned to such term
in the Uniform Commercial Code.
"Instrument" shall have the meaning assigned to
such term in the Uniform Commercial Code.
"Intangible Collateral" shall mean all Collateral
other than Inventory, Equipment, Fixtures and the
Collateral described in clause (i) of the definition
of Computer Hardware and Software.
"Inventory" shall mean goods, merchandise and
other personal property furnished or to be furnished under any
contract of service or intended for sale or lease,
including, without limitation, all raw materials,
work in process, finished goods, materials and
supplies, of any kind, nature or description, that
are used or consumed by any Company's business, or
are or might be used in connection with the
manufacture, packing, shipping, advertising, selling
or finishing of such goods, merchandise and other
personal property, and all returned or repossessed
goods now or at any time or times hereafter in the
possession or under the control of any Company or the
Agent.
"Patents" shall have the meaning assigned to such
term in Section 2 hereof.
"Person" shall mean any natural person,
corporation, firm, association, government,
governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Restricted Account" shall have the meaning
assigned to such term in Section 5(d) hereof.
"Security" shall have the meaning assigned to such
term in the Uniform Commercial Code.
"Security Interest" shall, when used with
respect to any Person, mean any interest in any real
or personal property, asset or other right owned or
being purchased or acquired by such Person for its
own use, consumption or enjoyment in its business
which secures payment or performance of any
obligation and shall include any mortgage, lien,
pledge, encumbrance, charge or other security
interest of any kind, whether arising under a
security agreement, mortgage, deed of trust, chattel
mortgage, assignment, pledge, financing or similar
statement or notice or as a matter of law, judicial
process or otherwise.
"Significant Patents and Trademarks" shall mean
any group of Patents and Trademarks having an aggregate fair
market value of $5,000,000 or more, or any
individual Patent or Trademark having a fair market
value of $500,000 or more.
"Trademarks" shall have the meaning assigned to such
term in Section 2 hereof.
"Uncertificated Security" shall have the meaning
assigned to such term in the Uniform Commercial Code.
"Uniform Commercial Code" shall mean the
Uniform Commercial Code as in effect in the State of
New York on the date of this Agreement.
(b) Unless otherwise defined herein, terms defined
in the Credit Agreement shall have the same meaning
when used herein notwithstanding any termination
thereof. Terms not otherwise defined herein or in
the Credit Agreement shall have the meanings, if
any, ascribed to them under the Uniform Commercial
Code, as it may be in effect in the State of New York.
2. Grant of Security Interest.
(a) As collateral security for the prompt and complete
payment and performance of all
Obligations, each Company hereby
mortgages, pledges and collaterally
assigns to the Agent, and grants to the
Agent a continuing Security Interest in,
and hereby affirms all prior mortgages,
pledges, collateral assignments and
grants made by it under the Existing
Security Agreement in, all property of
such Company wherever located, whether
now or hereafter existing, owned,
licensed, leased, consigned, arising or
acquired, including, without limitation,
all of such Company's:
(i) Accounts;
(ii) Goods (including, without limitation, all of such Company's
Equipment, Fixtures and Inventory);
(iii) General Intangibles, including, without limitation,
(a) All tax refunds (except such tax refunds
attributable to Keene Corporation pursuant to the
Tax Sharing and Disaffiliation Agreement between
Bairnco and Keene Corporation),
(b) All foreign, United States and state trademarks
and trademark registrations, tradenames and tradename
registrations and service marks and service mark
registrations now or hereafter owned by such Company,
including, without limitation, those listed on
Schedule I hereto, and all of the goodwill of the
business connected with the use of, and symbolized
by, each trademark and trademark registration,
tradename and tradename registration, service mark
and service mark registration and all continuations
and extensions thereof, the right to sue for past,
present, and future infringements or dilutions
thereof or for injury to the goodwill associated
therewith, all rights corresponding thereto
throughout the world, and all proceeds of the
foregoing (including, without limitation, licenses,
royalties and proceeds of suit) (all of the foregoing
being collectively hereinafter referred to as the
"Trademarks"),
(c) All foreign and United States patents and
applications for patents, including, without
limitation, those listed on Schedule II hereto, and
any and all, and all applications for, reissues,
divisions, continuations, renewals, extensions and
continuations-in-part thereof, the right to sue for
past, present and future infringements thereof, all
rights corresponding thereto throughout the world,
and all proceeds of the foregoing (including, without
limitation, license royalties and proceeds of
infringement suits) (all of the foregoing being
collectively hereinafter referred to as the
"Patents"),
(d) Rights arising from time to time to receive
payment under a billing to a Person representing such
Person's obligation to reimburse such Company for
indebtedness paid or to be paid by such Company for
such Person's account, and
(e) Rights arising out of leases, licenses and
contracts which are not Accounts;
(iv) Chattel Paper, Documents, Instruments, Certificated
Securities and Uncertificated Securities (other than
the Pledged Notes and Pledged Shares pledged under
the Pledge Agreement and any other shares of stock
of Subsidiaries organized under the laws of
jurisdictions outside the United States);
(v) Money and property now or at any time in the possession or
under the control of, or in transit to, the Agent,
any Lender, any Company or any bailee, agent or
custodian of the Agent, any Lender, or any Company;
(vi) Right, title and interest (if any) in and to the
accounts of such Company, all funds on deposit
therein, all investments arising out of such funds,
all claims thereunder or in connection therewith, and
all cash, securities, rights and other property at
any time and from time to time received, receivable
or otherwise distributed in respect of such accounts,
such funds or such investments;
(vii) Computer Hardware and Software and all rights
with respect thereto, including, without limitation,
any and all licenses, options, warranties, service
contracts, program services, test rights, maintenance
rights, support rights, improvement rights, renewal
rights and indemnifications and any substitutions,
replacements, additions or model conversions of any
of the foregoing;
(viii) Insurance policies, including claims or rights
to payment thereunder; and
(ix) Liens, guaranties and other rights and
privileges pertaining to any of the Collateral;
together with: (x) all books, ledgers, books of
account, records, writings, data bases, information
and other property relating to, used or useful in
connection with, evidencing, embodying, incorporating
or referring to, any of the foregoing; and (y) all
proceeds, products, rents, issues, profits and
returns of and from any of the foregoing.
TO HAVE AND TO HOLD the Collateral, together with all
rights, titles, interests, privileges and preferences
appertaining or incidental thereto, unto the Agent,
its successors and assigns, forever, subject,
however, to the terms, covenants and conditions
hereinafter set forth.
(b) The amount of Obligations secured by the
Collateral of any Company hereunder shall not exceed
the maximum amount of such liability that can be
hereby incurred without rendering this Agreement, as
it relates to such Company, voidable under
applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount.
For purposes of determining such liability of such
Company, due consideration shall be given to the
amount of the credit received, directly or
indirectly, by such Company and its Subsidiaries
(whether or not borrowed by or extended directly to
such Company) and the benefits to each Company of
maintaining an integrated cash management system for
Bairnco and its Subsidiaries.
(c) In addition to, and not by way of limitation of, the grant
of Security Interests in Trademarks and Patents set
forth above, each Company hereby, effective upon the
occurrence of a Default and upon the written demand
of the Agent, assigns, grants, sells, conveys,
transfers title to and sets over to the Agent for the
benefit of the Lenders all of such Company's right,
title and interest, whether now or hereafter existing
or acquired, in and to the Trademarks and Patents, it
being understood that the Agent upon the
effectiveness of such assignment may in its
discretion grant a limited license to such Company
with respect to all or any of the Trademarks and
Patents.
3. The Companies to Remain Liable.
Each of the Companies hereby expressly agrees that, anything
herein to the contrary notwithstanding, it shall
remain liable under each contract, agreement,
interest or obligation collaterally assigned to the
Agent hereunder to observe and perform all of the
conditions and obligations to be observed and
performed by the Companies thereunder, all in
accordance with and pursuant to the terms and
provisions thereof. The exercise by the Agent of any
of the rights assigned hereunder shall not release
the Companies from any of their duties or obligations
under any such contract, agreement, interest or
obligation. The Agent shall not have any duty,
responsibility, obligation or liability under any
such contract, agreement, interest or obligation by
reason of or arising out of the assignment thereof to
the Agent or the granting to the Agent of a Security
Interest therein or the receipt by the Agent of any
payment relating to any such contract, agreement,
interest or obligation pursuant hereto, nor shall the
Agent be required or obligated in any manner to
perform or fulfill any of the obligations of the
Companies thereunder or pursuant thereto, or to make
any payment, or to make any inquiry as to the nature
or sufficiency of any payment received by it or the
sufficiency of any performance of any party under any
such contract, agreement, interest or obligation, or
to present or file any claim, or to take any action
to collect or enforce any performance or the payment
of any amounts which may have been assigned to it, in
which it may have been granted a Security Interest or
to which it may be entitled at any time or times.
4. Representations and Warranties.
Each Company warrants and covenants to the Agent that:
(a) no Uniform Commercial Code financing statement
(other than any which may have been filed on behalf
of the Agent) covering any of the Collateral is on
file in any public office except as permitted under
Section 7.2.2 of the Credit Agreement;
(b) each Company has and will continue to have a valid
leasehold interest in all Collateral it leases and good and
marketable title (subject to any defect in title
asserted by Keene Creditors Trust in certain patents
of Bairnco and Arlon and the real property located at
1100 Governor Lea Boulevard, Bear, Delaware in the
"Properties Lawsuit" as defined and described in
Bairnco's Annual Report on Form 10-k for the year
ended December 31, 1998) to all its other Collateral,
real and personal, of any nature whatsoever (which,
with respect to any licenses, means that such Company
is the lawful owner of its rights under such
licenses) free of all Security Interests whatsoever,
other than the Security Interest created hereby and
except as permitted under Section 7.2.2 of the Credit
Agreement, with full power and authority to execute
this Agreement, to perform such Company's obligations
hereunder, and to subject the Collateral to the
assignment and Security Interest created hereby;
(c) all of each Company's books and records are now
located at one or more of the premises shown for such
Company on Schedule III hereto, and all of each
Company's Equipment and Inventory is located either
at one or more of the premises shown for such Company
on Schedule III hereto or at one or more of the
premises shown for such Company on Schedule IV hereto
except for no more than $12,000,000 of Equipment and
Inventory that is in transit and $2,000,000 of
Equipment and Inventory located at third party
warehouses leased by Kasco territory managers;
(d) all information with respect to the Collateral
and the Persons obligated on the Accounts set forth
in any schedule, certificate, or other writing at any
time heretofore or hereafter furnished by any Company
to the Agent hereunder and certified by an Authorized
Officer of such Company is and will be true and
correct in all material respects as of the date
furnished and does not and will not omit any material
fact necessary to make the statements not misleading;
(e) each Company will at all times maintain its
chief executive office as identified in Schedule III
hereto unless the Agent shall otherwise consent in
writing; provided, however, that so long as no
Default shall have occurred and be continuing, each
Company may move its chief executive office to some
other location within the United States upon (30)
days' advance written notice to the Agent, and, in
furtherance of the foregoing, each Company shall: (i)
manage the main part of such Company's business
operations from such Company's chief executive office
or at its other locations listed in Schedule III;
(ii) maintain all credit information in which an
investor, creditor or other Person having business
relations with such Company would reasonably have an
interest at its chief executive office or at its
other locations listed in Schedule III; (iii) prepare
Federal and State tax returns and all financial
statements and reports at such chief executive office
or at its other locations listed in Schedule III;
(iv) designate such chief executive office as such on
all tax returns, financial statements and reports,
reports to credit bureaus and rating agencies and
other similar returns, statements and reports; (v)
maintain its bookkeeping and accounting departments
at its chief executive office or at its other
locations listed in Schedule III; (vi) cause its
President, chief operating officer, treasurer and
other senior day-to-day supervisory management to
maintain their offices at the chief executive office
or at its other locations listed in Schedule III;
(vii) maintain its corporate minute books and records
(including stock transfer records) at its chief
executive office; and (viii) take such other action
from time to time as is required so that a creditor
of such Company would reasonably expect the chief
executive office identified on Schedule III to be its
chief executive office for purposes of Article 9 of
the Uniform Commercial Code;
(f) with respect to those Patents and Trademarks
which are necessary for the conduct of such Company's
business as now
conducted or presently proposed to be conducted
without any infringement upon rights of others which
might have a materially adverse effect on the
financial condition, business, assets, operations or
prospects of such Company to perform its obligations
under this Agreement, the Credit Agreement, or any
Loan Document: (i) to such Company's knowledge, each
of such material Patents and Trademarks is subsisting
and has not been adjudged invalid or unenforceable,
in whole or in part, (ii) to such Company's
knowledge, such Company is the sole and exclusive
owner of the entire and unencumbered right, title and
interest in and to each of such Patents and
Trademarks, free and clear of any liens, charges and
encumbrances, including, without limitation,
licenses, shop rights and covenants by such Company
not to sue third Persons, no claim has been made that
the use of any Trademark or Patent does or may
violate the rights of any third Person (other than
the claim asserted by Keene Creditors Trust to
certain patents of Bairnco and Arlon in the
"Properties Lawsuit" as defined and described in
Bairnco's Annual Report on Form 10-k for the year
ended December 31, 1998), (iii) such Company has the
unqualified right to enter into this Agreement and
perform its terms and will take all reasonable steps
necessary to cause its present and future employees,
agents and consultants to comply with the
representations and warranties herein contained, and
(iv) no litigation is pending or, to the best
knowledge of such Company, threatened which contains
allegations respecting the validity of any of such
material Patents and Trademarks;
(g) none of the Collateral (other than Intangible
Collateral or Collateral acquired in the ordinary
course of business within the previous four (4)
months) has, within the four (4) months preceding the
date of this Agreement, been located at any place
other than such Company's own premises at the address
shown on the signature page hereto or at one or more
of the premises listed on Schedules III and IV hereto
and no more than $12,000,000 of Equipment and
Inventory is in transit and no more than $2,000,000
of Equipment and Inventory is located at third party
warehouses leased by Kasco territory managers;
(h) Schedule V hereto lists all trade names by which
such Company is now known;
(i) such Company's legal name is that set forth on
the signature page of this Agreement; and
(j) all other information provided herein is true
and correct in all material respects as of the date hereof.
Each representation and warranty made or to be
made herein by each Company shall be deemed remade as
of and at the date of each Loan made or Letter of
Credit issued from time to time under or in
connection with the Credit Agreement with the same
effect as if made contemporaneously with the making
of such Loan or issuance of such Letter of Credit,
with such exceptions which any Company shall have
given the Agent prior written notice of and which
have been approved by the Agent in writing with the
consent of the Required Lenders.
5. Processing, Sale, Collections, etc.
(a) Until notice from the Agent to the contrary, given at
any time after the occurrence and during the continuance
of any Default, each Company:
(i) may, in the ordinary course of its business, at its own
expense, sell, lease or furnish under contracts of service any of
the Inventory normally held by such Company for such purpose, and
use and consume, in the ordinary course of its business, any raw
materials, work in process or materials normally held by such
Company for such purpose, and make sales, in or out of the ordinary
course of business permitted by Section 7.2.9 of the Credit
Agreement, such permitted sales to be free and clear of the Security
Interest hereunder (but no such sale or-use shall
limit or impair the Agent's Security Interest in
any proceeds thereof, including, without
limitation, any Account),
(ii) will, at its own expense, endeavor to collect, as and when
due, all amounts due with respect to any of the Intangible
Collateral, including the taking of such action with
respect to such collection as the Agent may
reasonably request or, in the absence of such
request, as such Company may deem advisable, and
(iii) may grant, in the ordinary course of business, to any
Person obligated on any of the Intangible Collateral,
any rebate, refund or allowance to which such Person
may be lawfully entitled, and may accept, in
connection therewith, the return of goods, the sale
or lease of which shall have given rise to such
Intangible Collateral.
The Agent, however, may at any time, whether before
or after the maturity of any of the Obligations, so
long as a Default shall have occurred and be
continuing, (1) notify any Person obligated on any of
the Intangible Collateral to make payment to the
Agent of any amounts due or to become due thereunder;
(2) enforce collection of any of the Intangible
Collateral by suit or otherwise; (3) surrender,
release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether
or not longer than the original period) any
indebtedness thereunder or evidenced thereby; and (4)
notify such Company (and upon receipt of such notice
such Company agrees to notify, at its sole expense,
any parties obligated on any of the Collateral) to
make payment to the Agent of any amount due or to
become due under the Collateral.
(b) If and to the extent that a perfected Security
Interest hereunder in any Collateral shall cease to
be perfected for any reason whatsoever (including,
without limitation, sale of Inventory or release of
all or any balance in any other account of any
Company or use or disposition by any Company of any
proceeds of Collateral), then such Collateral
(referred to in this paragraph as "Released
Collateral") shall be deemed thereby released from
the Security Interest hereunder in exchange, as of
the time of such release, for any other Collateral
(of the same or different type) of equivalent value
in which a perfected Security Interest is being
obtained contemporaneously or has been most recently
obtained hereunder, but only to the extent such other
Collateral does not represent either (x) Collateral
in exchange for which any previously Released
Collateral shall have been deemed released, or (y)
Collateral of equivalent value to any loan or
financial accommodation (otherwise than by renewal or
extension) from any Lender or the Agent to such
Company in which Collateral a perfected Security
Interest hereunder shall have been obtained
contemporaneously with or most recently prior to such
loan or financial accommodation.
(c) Upon the written request of the Agent, to be given at the
Agent's discretion at any time after the occurrence
and during the continuance of any Default, each
Company will, forthwith upon receipt, transmit and
deliver to the Agent in the form received, all cash,
checks, drafts and other instruments or writings for
the payment of money (properly endorsed, where
required, so that such items may be collected by the
Agent) which may be received by such Company at any
time in full or partial payment or otherwise as
proceeds of any Collateral. Except as the Agent may
otherwise consent in writing, after the occurrence
and during the continuance of a Default, any such
items which may be so received by such Company will
not be commingled by such Company with any of its
other funds or property, but, until delivery to the
Agent, will be held separate and apart from such
other funds and property and in trust for the Agent.
(d) Once a Default shall have occurred and be
continuing, all items or amounts which are delivered
by any Company to the Agent
(or collected directly by the Agent, as the case may
be) on account of partial or full payment or
otherwise as proceeds of any of the Collateral shall
be deposited to the credit of a deposit account
(herein referred to as the "Restricted Account") of
the Companies with the Agent, as security for
performance and payment of the Obligations. Such
Company shall have no right to withdraw any funds
deposited in the Restricted Account. Once a Default
shall have occurred and be continuing, the Agent may,
from time to time, in its discretion, apply all or
any of the then balance in the Restricted Account
toward payment of the Obligations, in such order of
application as the Agent may determine, and the Agent
may (but will not be required to), from time to time,
in its discretion, release all or any of such balance
representing collected funds to Bairnco (for
distribution to the Companies according to their
interests) by deposit thereof to the aforementioned
general deposit account.
(e) The Agent is authorized to endorse, in the name
of any Company, any item, howsoever received by the
Agent representing any Collateral or any payment on
or other proceeds of any of the Collateral.
6. Agreements of the Companies. Each Company shall:
(a) keep all its Inventory and other Goods, except for
no more than $12,000,000 of Equipment and Inventory
in transit and no more than $2,000,000 of Equipment
and Inventory located at third party warehouses leased by Kasco
territory managers or unless the Agent shall otherwise consent
in writing, at one or more of its own premises (as
shown on Schedule III hereto) or at one or more of
the premises listed on Schedule IV hereto; provided,
however, that (i) so long as no Default shall have
occurred and be continuing, each Company may
designate additional premises for inclusion on
Schedule IV hereto upon thirty (30) days' advance
written notice to the Agent and (ii) in the case of
the premises listed on Schedule IV hereto from time
to time, such Company's Inventory and other Goods
shall be kept separate from the Inventory and other
Goods of those Persons (other than another Company)
using such premises and shall be clearly and
conspicuously designated as being such Company's sole
property (for example, by posting signs or by
affixing such Company's name on its Inventory and
other Goods);
(b) furnish the Agent such information concerning each Company,
the Collateral and the Persons obligated on the Accounts as the
Agent may from time to time reasonably request;
(c) defend each Company's title to the Collateral against all
Persons and against all claims and demands whatsoever;
(d) do all acts reasonably necessary to maintain, preserve and
protect all Collateral, keep all Collateral in good condition and
repair (subject to normal wear and tear), and prevent any waste
or unusual or unreasonable depreciation thereof;
(e) comply in all material respects with all laws, rules and
regulations relating to, and promptly pay when due all license
fees, registration fees, taxes, assessments and other charges
which may be levied upon or assessed against, the ownership,
operation, possession, maintenance or use of the Collateral;
provided, however, that such Company shall not be required to
comply with any such law, rule or regulation, or to pay any such
fee, tax, assessment or other charge, the validity of which is
being contested by such Company in good faith by appropriate
proceedings so long as forfeiture of any part of the Collateral
will not result from the failure of such Company to comply with
any such law, rule or regulation, or to pay any such fee, tax,
assessment or other charge, during the period of such contest and
such Company maintains adequate reserves in accordance with GAAP
in connection with such contest;
(f) permit the Agent and designees of the Agent, from time to
time, (to the extent not prohibited by law) to inspect at
reasonable times the Inventory and Equipment, and to, at
reasonable times, inspect, audit and make copies of and extracts
from all records and all other papers in the possession of such
Company and will, upon request of the Agent, deliver to the Agent
all of such records and papers which pertain to the Collateral
and all Persons obligated with respect thereto;
(g) upon request of the Agent, stamp on its records concerning
the Collateral (and/or enter into its computer records concerning
the Collateral), a notation, in form satisfactory to the Agent,
of the Security Interests created hereby, and give all
appropriate notices of assignment and take all other appropriate
actions in accordance with the Federal Assignment of Claims Act
(31 U.S.C. 3727), as amended from time to time, with respect to
Collateral subject thereto;
(h) not sell, lease, assign, license, sublicense, abandon or
otherwise dispose of, or create or permit to exist any Security
Interest on any Collateral to or in favor of anyone other than
the Agent; provided, however, that, if no Default shall have
occurred and be continuing, such Company may engage in
transactions permitted under Sections 7.2.1(f), 7.2.2 and 7.2.9
of the Credit Agreement;
(i) at all times keep all Inventory and Equipment insured
against loss, damage, theft and other risks in the manner
required by Section 7.1.4 of the Credit Agreement and, if the
Agent so requests, deposit with the Agent originals or certified
copies of the relevant policies and certificates of insurance;
(j) furnish to the Agent notice in writing as soon as possible
and in any event not later than thirty (30) days prior to the
occurrence from time to time of (i) any change in the locations
of any part of the Collateral from the locations shown in
Schedules III and IV hereto, except for no more than $12,000,000
of Equipment and Inventory in transit and $2,000,000 of Equipment
and Inventory located at third party warehouses leased by Kasco territory
managers, (ii) any change in the location of such Company's chief executive
office, and (iii) any change in the name of such Company or the name
under or by which it conducts its business, each of such notices
also to contain evidence that such Company has taken all action
required or reasonably desirable to maintain and preserve the
Security Interest in favor of the Agent on the Collateral, free
and clear of any other Security Interest or encumbrance
whatsoever;
(k) reimburse the Agent for all reasonable expenses, including
attorneys' fees and legal expenses and reasonable expenses of any
repairs to realty or other property to which any Collateral may
be affixed or be a part, incurred by the Agent in seeking to
collect or enforce any rights under or with respect to the
Collateral, in seeking to collect the Notes and all other
Obligations, and in enforcing its rights hereunder, together with
interest thereon from the date incurred until reimbursed by such
Company at a rate per annum equal to the Default Rate;
(l) either itself or through licensees, unless such Company
shall reasonably determine that a Trademark is of negligible
economic value to such Company, (i) continue to use each
Trademark on each and every trademark class of goods with which
it is associated (as reflected in its catalogs, brochures and
price lists) in order to maintain each Trademark in full force
free from any claim of abandonment for non-use, (ii) maintain the
quality of products and services offered under each Trademark,
(iii) employ each Trademark with the appropriate notice of
application or registration, (iv) not adopt or use any mark which
is confusingly similar or a colorable imitation of any Trademark,
(v) not use any Trademark except for the uses for which
registration or application for registration of such Trademark
has been made, and (vi) not (and not permit any licensee or
sublicensee thereto to) do any act or knowingly omit to do any
act whereby any Trademark may become invalidated;
(m) at its sole expense, (i) without any request by the Agent,
immediately deliver or cause to be delivered to the Agent, in due
form for transfer (i.e., endorsed in blank or accompanied by duly
executed undated blank stock or bond powers in form and substance
satisfactory to the Agent), all Securities, Chattel Paper with a
face amount of or requiring payment in the aggregate amount of
$1,000,000 or more, Instruments with a face amount in excess of
$500,000 (other than checks received in payment for such
Company's goods or services in the ordinary course of business
that are collected or converted to cash within two weeks after
the receipt thereof) and Documents (other than Documents with a
value of less than $1,000,000 or that are not held by such
Company for more than 30 days), if any, at any time representing
all or any of the Collateral, (ii) at the Agent's request, cause
the Agent's Security Interest hereunder and under the other
Collateral Documents to be at all times duly noted on any
certificate of title issuable with respect to any of the
Collateral and forthwith deliver or cause to be delivered to the
Agent each such certificate of title, and (iii) forthwith,
execute and deliver or cause to be executed and delivered to the
Agent, in due form for filing or recording (and pay the cost of
filing or recording the same in all public offices deemed
necessary or advisable by the Agent) such assignments (including,
without limitation, assignments of life insurance with a cash
value of $1,000,000 or more), security agreements, mortgages,
deeds of trust, pledge agreements, consents, waivers, financing
statements, stock or bond powers, and other documents, and do
such other acts and things, all as may from time to time be
necessary or desirable to establish and maintain to the
satisfaction of the Agent a valid perfected lien on and security
interest in all assets of such Company now or hereafter existing
or acquired (free of all other liens, claims and rights of third
parties whatsoever other than Permitted Liens) to secure payment
and performance of the Obligations; and
(n) at the Agent's request after the occurrence and during the
continuance of a Default, transfer all or any part of the
Collateral into the name of the Agent or its nominee, with or
without disclosing that such Collateral is subject to the
Security Interest hereunder.
7. Renewals, Amendments and Other Security; Partial Releases.
(a) If at any time, whether before or after any of the
Obligations shall be due and payable, the Agent or any Lender
takes any or all of the Permitted Actions (as hereinafter
defined), such actions shall not affect the enforceability of
this Agreement, the Credit Agreement, or any of the other Loan
Documents or the Obligations. The Agent or a Lender, as the case
may be, shall have taken a Permitted Action if it shall: (i)
retain or obtain a Security Interest in any property to secure
payment and performance of any of the Obligations, (ii) retain or
obtain the primary or secondary obligation of any obligor or
obligors, in addition to the Companies', with respect to any of
the Obligations, (iii) extend or renew any of the Obligations for
one or more periods (whether or not longer than the original
period), alter or exchange any of the Obligations, or release or
compromise any obligation of any nature of any obligor with
respect to any of the Obligations, (iv) release or fail to
perfect its lien on and Security Interest in, or impair,
surrender, release or permit any substitution or exchange for,
all or any part of any property securing payment and performance
of any of the Obligations or any obligations hereunder, or extend
or renew for one or more periods (whether or not longer than the
original period) or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect to any such
property, and (v) resort to the Collateral (or any thereof) for
payment of any of the Obligations when due, whether or not the
Agent or the Lenders shall have resorted to any
property securing any of the Obligations or shall
have proceeded against any Company or against any
other obligor primarily or secondarily obligated with
respect to any of the Obligations (all of the actions
referred to in this clause (v) being hereby expressly
waived by each Company).
(b) No release from the Security Interest created by this
Agreement of any part of the Collateral by the Agent
shall in any way alter, vary or diminish the force or
effect of any Security Interest created by this
Agreement against the balance or remainder of the
Collateral.
8. Grant of License to Use Intangibles.
Solely for the purpose of enabling the Agent to exercise rights
and remedies hereunder at such time as the Agent,
without regard to this Section 8, shall be lawfully
entitled to exercise such rights and remedies, each
Company hereby grants to the Agent an irrevocable,
nonexclusive license (exercisable without payment of
royalty or other compensation to any Company) to use,
assign, license or sublicense any of such Company's
General Intangibles, now owned or hereafter acquired
by such Company, and wherever the same may be
located, including in such license reasonable access
as to all media in which any of the licensed items
may be recorded or stored and to all computer
programs used for the compilation or printout
thereof; provided, however, that the Agent shall not
make any assignment of any General Intangible
hereunder which constitutes an assignment in gross.
No agreements hereafter acquired or agreed to or
entered into by such Company shall prohibit, restrict
or impair the Security Interest granted hereunder.
9. Information.
The Agent and any of the officers, employees, agents or auditors of
the Agent shall have the right at reasonable intervals after the date
hereof to make reasonable inquiries by mail,
telephone, telegraph or otherwise to any Person with
respect to validity and amount or any other matter
(including, without limitation, the assertion by any
Person of claims, offsets and counterclaims)
concerning any of the Collateral.
10. Default.
(a) (i) Whenever a Default shall be existing, the
Agent may exercise from time to time any rights and
remedies available to it hereunder, under the Credit
Agreement and under the Uniform Commercial Code as in
effect from time to time in New York or otherwise
available to it under applicable law. Each Company
agrees, upon the occurrence and continuance of such a
Default and upon the request of the Agent, to
assemble, at such Company's expense, all Inventory
and Equipment at convenient locations acceptable to
the Agent.
(ii) Each Company hereby expressly waives, to the fullest extent
permitted by applicable law, any and all notices, advertisements,
hearings or process of law in connection with the
Agent's exercise of any of its rights or remedies
upon a Default. If any notification of intended
disposition of any of the Collateral is required by
law, such notification, if mailed, shall be deemed
reasonably and properly given if mailed at least five
(5) days before such disposition, postage prepaid,
and addressed to Bairnco (for distribution by Bairnco
to each Company) either at the address of Bairnco
shown in the Credit Agreement or at any other address
of Bairnco which appears on the Agent's records. The
Agent may apply any proceeds of any of the Collateral
to the payment of all reasonable expenses which the
Agent incurs in connection with the enforcement of
this Agreement, including,
without limitation, reasonable attorneys' fees and
legal expenses. The Agent may apply any balance of
such proceeds toward the payment of such of the
Obligations, and in such order of application, as the
Agent may, in its sole discretion, elect from time to
time.
(b) Without limiting any other provision of this
Agreement: whenever a Default shall be existing, the
Agent may enter upon any premises where the
Collateral or any part thereof may be, and take
possession of all or any part thereof with or without
process of law; and the Agent may, without being
responsible for loss or damage, hold, store, keep
idle, use, lease, operate or otherwise use or permit
the use of the same or any part thereof or render all
or part thereof unusable for such time and upon such
terms as the Agent may deem to be commercially
reasonable, and may demand, collect and retain all
earnings and all other sums due and to become due in
respect of the same from any Person whomsoever,
accounting only for net earnings, if any, arising
from such use after charging against all receipts
from the use of the same or from the sale thereof, by
court proceedings or pursuant to Section 10(c) hereof
or otherwise, all costs and expenses of, and damages
or losses by reason of, such use or sale.
(c) The Companies jointly and severally hereby agree to
reimburse the Agent for any and all reasonable
expenses, including reasonable attorneys' fees and
legal expenses incurred by the Agent in seeking to
collect or enforce any rights under or with respect
to the Collateral, in seeking to collect the Notes
and all other Obligations, and in enforcing its
rights hereunder, together with interest thereon from
the date incurred until reimbursed by the Companies
at a rate per annum equal to the Default Rate.
(d) Each Company agrees that in any sale of any of
the Collateral, the Agent is authorized to comply
with any limitation or restriction in connection with
such sale as counsel may advise the Agent is
necessary in order to avoid any violation of
applicable law (including, without limitation,
compliance with such procedures as may restrict the
number of prospective bidders or purchasers, require
that such prospective bidders and purchasers have
certain qualifications, and restrict such prospective
bidders and purchasers to Persons who will represent
and agree that they are purchasing for their own
account or investment and not with a view to the
distribution or resale of such Collateral), or in
order to obtain any required approval of the sale or
of the purchaser by any governmental or regulatory
authority or official. Each Company further agrees
that such compliance shall not result in such sale
being considered or deemed not to have been made in a
commercially reasonable manner, nor shall the Agent
be liable or accountable to such Company for any
discount allowed by reason of the fact that such
Collateral was sold in compliance with any such
limitation or restriction.
(e) If sufficient sums are not realized upon any disposition of the
Collateral to pay all Obligations and any expenses of
such disposition, including, without limitation,
attorneys' fees, the Companies jointly and severally
hereby promise to pay immediately any resulting
deficiency.
(f) No right or remedy herein conferred is intended
to be exclusive of any other right or remedy, but
every such right or remedy shall be cumulative and
shall be in addition to every other right or remedy
herein conferred, or conferred upon the Agent by any
other agreement or instrument or security, or now or
hereafter existing at law or in equity or by statute.
11. Waiver of Subrogation.
Each Company hereby irrevocably waives any claim or other rights which it
may now or hereafter acquire against any other
Company or any Obligor that arise from
the existence, payment, performance or enforcement of
any Company's or Obligor's obligation under this
Agreement or any other Loan Document, including any
right of subrogation, reimbursement, exoneration, or
indemnification, any right to Participate in any
claim or remedy of the Lenders against any Company or
Obligor or any collateral which the Agent now has or
hereafter acquires, whether or not such claim, remedy
or right arises in equity, or under contract, statute
or common law, including the right to take or receive
from any Company or any Obligor, directly or
indirectly, in cash or other property or by set-off
or in any manner, payment or security on account of
such claim or other rights. If any amount shall be
paid to any Company in violation of the preceding
sentence and the Obligations shall not have been paid
in cash in full and the Commitments have not been
terminated, such amount shall be deemed to have been
paid to such Company for the benefit of, and held in
trust for, the Lenders, and shall forthwith be paid
to the Lenders to be credited and applied to the
Obligations, whether matured or unmatured.
12. Authority of the Agent.
(a) The Agent shall have, and be entitled to exercise, all such powers
hereunder as are specifically delegated to the Agent
by the terms hereof, together with such powers as are
incidental thereto. The Agent may execute any of its
duties hereunder by or through agents or employees
and shall be entitled to retain counsel and to act in
reliance upon the advice of such counsel concerning
all matters pertaining to its duties hereunder.
Neither the Agent, nor any director, officer,
employee or agent of the Agent, shall be liable for
any action taken or omitted to be taken by it
hereunder or in connection herewith, except for its
own gross negligence or willful misconduct. Each
Company agrees to reimburse the Agent, on demand, for
all reasonable costs and expenses incurred by the
Agent in connection with the administration and
enforcement of this Agreement (including costs and
expenses incurred by any agent employed by the Agent)
and agrees to indemnify (which indemnification shall
survive any termination of this Agreement) and hold
harmless the Agent and any such agent from and
against any and all liability incurred by the Agent
or such agent hereunder or in connection herewith,
unless such liability shall be due to gross
negligence or willful misconduct on the part of the
Agent or such agent, as the case may be.
(b) The Agent may from time to time, without notice to
any Company, at its option, perform any material
obligation to be performed by any Company hereunder,
under the Credit Agreement or under the Loan
Documents which shall not have been performed and
take any other action which the Agent deems necessary
for the maintenance or preservation of any of the
Collateral or its security interest in the
Collateral. All moneys advanced by the Agent in
connection with the foregoing shall, whether or not
there are then outstanding any credit extensions made
under the Credit Agreement or the Credit Agreement is
in effect, bear interest at the Default Rate (or such
lower maximum rate as shall be legal under applicable
law), and shall be repaid together with such interest
by the Companies to the Agent, upon the latter's
demand, and shall be secured hereby prior to any
other indebtedness or obligation secured hereby, but
the making of any such advance by the Agent shall not
relieve any Company of any default hereunder or
thereunder.
(c) The Agent, in its sole discretion, may apply any amounts
which it receives from whatever source on account of the
Obligations toward the payment of the Obligations in
such order of application as the Agent, in its sole
discretion, may from time to time elect, subject to
the terms and provisions of the
Credit Agreement.
13. Termination.
This Agreement shall terminate when
the Commitments shall be terminated and all the
Obligations have been fully paid and performed, at
which time the Agent shall reassign and redeliver (or
cause to be reassigned and redelivered) to each
Company or to such Person as each Company shall
designate, against receipt, such of the Collateral
(if any) assigned by each Company to the Agent as
shall not have been sold or otherwise applied by the
Agent pursuant to the terms hereof and shall still be
held by it hereunder, together with appropriate
instruments of reassignment and release. Any such
reassignment shall be without recourse upon or
representation or warranty by the Agent except a
warranty that the Agent has not encumbered or
otherwise reassigned such Collateral and shall be at
the sole cost and expense of such Company.
14. Protection of Patents and Trademarks.
(a) Each Company shall have the duty to protect,
preserve and maintain all rights in each of the
Significant Patents and Trademarks, including,
without limitation, the duty to prosecute and/or
defend against any and all suits contesting
infringement or dilution of the Significant Patents
and Trademarks, any other suits containing
allegations respecting the validity of the
Significant Patents and Trademarks, and any suits
claiming injury to the goodwill associated with any
of such Trademarks. Any expenses incurred in
protecting, preserving and maintaining the
Significant Patents and Trademarks shall be borne by
such Company. To the maximum extent permitted by law,
if a Company has failed to take a material action
requested by the Agent to so protect, preserve and
maintain the Significant Patents and Trademarks, the
Agent shall have the right, without taking title to
any such Patent or Trademark, to bring suit to
enforce any or all Significant Patents and
Trademarks, or licenses thereunder or its Security
Interest in any or all of the Significant Patents or
Trademarks or licenses thereunder, in which event
each Company shall, at the request of the Agent, do
any and all lawful acts and execute any and all
proper documents required by the Agent in aid of such
enforcement. All costs, expenses and other moneys
advanced by the Agent in connection with the
foregoing, shall, whether or not there are then
outstanding any Loans or Letters of Credit under the
Credit Agreement or the Credit Agreement is in
effect, bear interest at the Default Rate and shall
be repaid together with such interest by the
Companies to the Agent, upon the latter's demand, and
shall be secured hereby prior to any other
indebtedness or obligation secured hereby except
those incurred pursuant to Section 12(b) above, but
the making of any such advance by the Agent shall not
relieve such Company of any default hereunder. In
addition, the Companies jointly and severally hereby
indemnify (which indemnification shall survive any
termination of this Agreement) and hold harmless the
Agent from any and all liabilities, obligations,
losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements (including
reasonable attorneys' fees) of any kind whatsoever
which may be imposed on, incurred by or asserted
against the Agent in connection with or in any way
arising out of such suits, proceedings or other
actions. Notwithstanding the foregoing, the Agent
shall have no obligations or liabilities regarding
the Patents and Trademarks or any of them by reason
of, or arising out of, this Agreement.
(b) If any Default shall have occurred and be continuing, upon
the written demand of the Agent, each Company shall
execute and deliver to the Agent an assignment or
assignments of the Trademarks and Patents, and
licenses in favor of, or otherwise of value to, such
Company, and such other documents as are necessary
or appropriate to carry out the intent and purposes
of this Agreement; provided that the failure of such
Company to comply with such demand will not impair or
affect the validity of Section 2 hereof. Each Company
agrees that such an assignment shall be applied to
reduce the Obligations then due only to the extent
that the Agent receives cash proceeds in respect of
the sale of, or other realization upon, the
Trademarks, Patents and such other Collateral; such
cash proceeds to be applied to the payment of
expenses incurred in connection with the Trademarks,
Patents and such other Collateral, including
reasonable attorneys' fees and legal expenses, and
any balance of such proceeds shall be applied by the
Agent as provided in Section 10(a)(ii). Without
limiting any other rights and remedies of the Agent,
within five (5) Business Days of written notice from
the Agent, each Company shall make available to the
Agent, to the extent within such Company's power and
authority, such personnel in such Company's employ on
the date of the Default as the Agent may reasonably
designate, by name, title or job responsibility, to
permit such Company to continue, directly or
indirectly, to produce, advertise and sell the
products sold by such Company under the Trademarks,
such persons to be available to perform their prior
functions on the Agent's behalf and to be compensated
by the Agent on a per diem, pro-rata basis consistent
with the salary and benefit structure applicable to
each as of the date of such Default.
15. Governing Law; Consent to Jurisdiction and Service of Process.
(a) THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY COMPANY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW
YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY
MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS
OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. BY EXECUTING AND DELIVERING
THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN
ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO IT AT ITS ADDRESS PROVIDED
IN ACCORDANCE WITH SECTION 10.4;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE
(III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER ITSELF IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION
15 RELATING TO JURISDICTION AND VENUE SHALL BE
BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS
LAW SECTION 5-1402 OR OTHERWISE.
(b) Each Company agrees not to institute any legal
action or proceeding against the Agent, any Lender
or the directors, officers, employees, agents or
property of any thereof, arising out of or relating
to this Agreement or any other Loan Document, in any
court other than the one hereinabove specified in
this Section 15. Nothing in this Section 15 shall
affect the right of the Agent or any Lender to serve
legal process in any other manner permitted by law
or affect the right of the Agent or any Lender to
bring any action or proceeding against any Company
or its property in the courts of any other
jurisdictions.
(c) Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision
or the remaining provisions of this Agreement. All
obligations of each Company or any related Person and
rights of the Agent and any other holder of a note or
liability expressed in this Agreement shall be in
addition to and not in limitation of those provided
in applicable law or in any other written instrument
or agreement relating to any of the Obligations.
16. Miscellaneous Provisions.
(a) The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of
any of the Collateral if it takes such action for
that purpose as any Company requests in
writing, but failure of the Agent to comply with any such request
shall not of itself be deemed a failure to exercise reasonable
care, and no failure of the Agent to preserve or protect any
rights with respect to Collateral against prior parties, or to do
any act with respect to the preservation of Collateral not so
requested by such Company, shall be deemed a failure to exercise
reasonable care in the custody or preservation of such
Collateral.
(b) Each Company hereby appoints the Agent, with full power of
substitution, as such Company's attorney-in-fact for
the purpose of carrying out the provisions of this
Agreement and taking any action and executing any
instrument which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an
interest. Without limiting the generality of the
foregoing, each Company agrees that the Agent shall
have the right and authority to make claim for, and
receive and give acquittances for payment on account
of, loss under any insurance policy covering the
Collateral, or any part thereof, and to receive,
endorse and collect all checks, drafts and other
orders for the payment of money representing the
proceeds of such insurance.
(c) No delay on the part of the Agent or any Lender
in exercising any right, power or remedy shall
operate as a waiver thereof, nor shall the single or
partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. No
amendment, modification or waiver of, or any consent
with respect to, any provision of this Agreement
shall in any event be effective unless the same shall
be in writing, and signed and delivered by the party
to be bound thereby, and then such amendment,
modification, waiver or consent shall be effective
only in the specific instance and for the purpose for
which given.
(d) All of each Company's obligations and all of the
Agent's rights, powers and remedies specified herein
are in addition to all other obligations, rights,
powers and remedies required of or
possessed by them, including, without limitation,
those provided by applicable law or in any other
written instrument or agreement relating to any of
the Obligations or any security therefor. Each
Company agrees that, if at any time all or any part
of any payment theretofore applied by the Agent to
any of the Obligations is or must be rescinded or
returned by the Agent for any reason whatsoever
(including, without limitation, the insolvency,
Bankruptcy or reorganization of any Company) such
Obligations shall, for the purposes of this
Agreement, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued
in existence, notwithstanding such application by the
Agent, and this Agreement shall continue to be
effective or be reinstated, as the case may be, as to
such Obligations, all as though the Agent had not
made such application.
(e) The powers conferred on the Agent hereunder are
solely to protect its interest (on behalf of the
holders of the Obligations) in the Collateral and
shall not impose any duty on it to exercise any such
powers. Except for the safe custody of any Collateral
in its possession and the accounting for moneys
actually received by it hereunder, the Agent shall
have no duty as to any Collateral or responsibility
for (i) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or
not the Agent has or is deemed to have knowledge of
such matters, or (ii) taking any necessary steps to
preserve rights against prior parties or any other
rights pertaining to the Collateral.
(f) All notices or other communications hereunder
shall be given in the manner specified under Section
10.2 of the Credit Agreement.
(g) The rights and privileges of the Agent hereunder
shall inure to the benefit of its successors and
assigns. This Agreement shall be binding upon each
Company and its successors and assigns.
(h) At the option of the Agent, this Agreement, or a
carbon, photographic or other reproduction of this
Agreement or of any Uniform Commercial Code financing
statement covering the Collateral or any portion
thereof, shall be sufficient as a Uniform Commercial
Code financing statement and may be filed as such.
(i) The section headings in this Agreement are
inserted for convenience of reference and shall not
be considered a part of this Agreement or used in its
interpretation.
(j) This Agreement may be executed in any number of
counterparts and by the different parties on separate
counterparts and each such counterpart shall for all
purposes be deemed an original, but all such
counterparts shall together constitute but one and
the same Agreement. Each Company hereby acknowledges
receipt of a true, correct and complete counterpart
of this Agreement.
(k) THE COMPANIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT,
THE LENDERS OR THE COMPANIES. EACH COMPANY
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING
INTO THE CREDIT AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
(l) Each Company hereby expressly waives: (i) notice
of the acceptance by the Agent of this Agreement,
(ii) notice of the existence or creation or non-
payment of all or any of the Obligations, (iii) to
the fullest extent permitted by law,
presentment, demand, notice of dishonor, protest, and
all other notices whatsoever, and (iv) all diligence
in collection or protection of or realization upon
the Obligations or any thereof, any obligation
hereunder, or any security for or guaranty of any of
the foregoing.
(m) The Agent or any Lender may, from time to time,
whether before or after any of the Obligations shall
be due, in its sole discretion and without notice to
any Company (but subject to the terms and provisions
of the Credit Agreement), assign or transfer any or
all of its interest in the Obligations; and,
notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such
Obligations shall be and remain Obligations for
purposes of this Agreement, and each and every
immediate and successive assignee or transferee of
any of the Obligations or of any interest therein
shall, to the extent of the interest of such assignee
or transferee in the Obligations, be entitled to the
benefits of this Agreement to the same extent as if
such assignee or transferee were the Agent or such
Lender (as the case may be).
(n) The Agent acts herein as agent for itself
and any and all present and future holders of the Obligations.
(o) Each Company hereby acknowledges that there are no
conditions to the effectiveness of this Agreement.
(p) If any item of Collateral hereunder also
constitutes collateral granted to the Agent under any other
mortgage, agreement or instrument, in the event of
any conflict between the provisions under this
Agreement and those under such other mortgage,
agreement or instrument relating to such Collateral,
the provision or provisions selected by the Agent
shall control with respect to such Collateral.
(q) The initial Companies hereunder shall be
the Bairnco and such Subsidiaries of Bairnco as are signatories
hereto on the date hereof. From time to time
subsequent to the date hereof, additional
Subsidiaries of Bairnco may become parties hereto as
additional Companies (each an "Additional Company"),
by executing a Counterpart substantially in the form
of Exhibit I annexed hereto. Upon delivery of any
such Counterpart to Agent, notice of which is hereby
waived by Companies, each such Additional Company
shall be a Company and shall be as fully a party
hereto as if such Company were an original signatory
hereto. Each Company expressly agrees that its
obligations arising hereunder shall not be affected
or diminished by the addition or release of any other
Company hereunder, nor by any election of Agent not
to cause any Subsidiary of Bairnco to become an
Additional Company hereunder. This Agreement shall
be fully effective as to any Company that is or
becomes a party hereto regardless of whether any
other Person becomes or fails to become or ceases to
be a Company hereunder.
(r) All obligations of the Companies hereunder
are joint and several obligations and failure by one Company to
perform its obligations under or relating to this
Agreement shall not relieve any other Company of any
obligation under or relating to this Agreement, the
Credit Agreement or any other Loan Document.
(s) All rights of the Agent and the Security
Interest granted to the Agent hereunder, and all obligations
of the Companies hereunder, shall be absolute and
unconditional, irrespective of (i) any lack of
validity or enforceability of the Credit Agreement,
the Notes, the Letters of Credit or any other Loan
Document or any instrument relating thereto, or (ii)
any other circumstance which might otherwise
constitute a defense available to, or a discharge of,
a guarantor or a third party grantor of a Security
Interest.
(t) The creation or existence from time to time
of additional Obligations is hereby authorized, without
notice to any Company, and shall in no way affect or
impair the Agent's rights and each Company's
obligations under this Agreement or any
other Loan Document.
17. Application of Insurance Proceeds.
Any loss benefits ("Benefits") under any of the insurance
policies maintained by each Company shall be
applied as follows:
(a) If no Default has occurred and is continuing
then such Benefits, together with any interest
thereon, shall be held by the Agent as additional
Collateral hereunder, but, so long as no Default has
occurred and is continuing, such Benefits may, at
such Company's discretion, be either:
(i) applied by the Agent to the repayment of the
Obligations under the Credit Agreement, subject to all of
the terms and conditions of the Credit Agreement, or
(ii) at any time used by such Company to repair or replace the
damaged or destroyed Collateral giving rise to such Benefits.
(b) If a Default occurs or is continuing while
the Agent is holding any Benefits pursuant to this
Section 17, the Agent may apply such Benefits as
provided in Section 10(a)(ii).
18. Reaffirmation and Modification of Original Loan Documents.
It is the intention of each of the parties hereto that the Existing Security
Agreement be amended and restated to confirm
and continue the security interests granted
thereby and so as to preserve the perfection
and priority of all security interests
securing indebtedness under the Original
Credit Agreement and the other Loan Documents
(as defined in the Original Credit Agreement)
and that all indebtedness and obligations of
the Borrowers and the guarantors under the
Original Credit Agreement and the other Loan
Documents (as defined in the Original Credit
Agreement) shall be secured by this Agreement
and the other Loan Documents and that this
Agreement shall not constitute a novation of
the obligations and liabilities existing
under the Existing Security Agreement. The
parties hereto further acknowledge and agree
that this Agreement constitutes an amendment
of the Existing Security Agreement made under
the terms thereof.
IN WITNESS WHEREOF, this Agreement has been
duly executed as of the day and year first
above written.
BAIRNCO CORPORATION
By. /s/ James W. Lambert
Name James W. Lambert
Title: VP Finance
ARLON, INC.
By. /s/ James W. Lambert
Name: James W. Lambert
Title: VP
KASCO CORPORATION
By. /s/ James W. Lambert
Name: James W. Lambert
Title: VP
MII INTERNATIONAL, INC.
By. /s/ James W. Lambert
Name: James W. Lambert
Title: VP
BANK OF AMERICA, N.A., as Agent
By.
Name:
Title:
EXHIBIT I TO SECURITY AGREEMENT
[FORM OF COUNTERPART]
COUNTERPART (this "Counterpart"), dated
_______, is delivered pursuant to Section 16(q) of
the Security Agreement referred to below. The
undersigned hereby agrees that this Counterpart
may be attached to the Amended and Restated Security
Agreement, dated as of February 22, 2000 (as it may
be from time to time amended, modified or
supplemented, the "Security Agreement";
capitalized terms used herein not otherwise defined
herein shall have the meanings ascribed therein),
among Bairnco Corporation, a Delaware corporation,
the other Companies named therein, and Bank of
America, N.A., as Agent. The undersigned by
executing and delivering this Counterpart hereby
becomes a Company under the Security Agreement in
accordance with Section 16(q) thereof and agrees to
be bound by all of the terms thereof.
Without limiting the generality of the foregoing, the
undersigned hereby:
(i) authorizes the Agent to add the
information set forth on the Schedules
to this Agreement to the correlative
Schedules attached to the Security
Agreement ;
(ii) agrees that all Collateral of the
undersigned, including the items of
property described on the Schedules
hereto, shall become part of the
Collateral and shall secure all
Obligations; and
(iii) makes the representations and
warranties set forth in the Security
Agreement, as amended hereby, to the
extent relating to the undersigned.
[NAME OF
ADDITIONAL COMPANY]
By:
_______________________
____
Name:
Title:
_______________________________
Select appropriate interest rate option.
Insert appropriate interest rate option.
