EXHIBIT 99.2
SECOND AMENDED AND
RESTATED GUARANTY
THIS SECOND AMENDED AND
RESTATED GUARANTY (this “Guaranty”) dated as of May 20,
2005 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 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”) as Agent (as hereinafter defined in
the first recital below) and amends and restates in its entirety
that certain Amended and Restated Guaranty dated as of February 22,
2000 (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”),
Arlon Adhesives & Films, Inc., a Texas corporation
(“Arlon Adhesive”), Arlon Partners, Inc., a Delaware
corporation (“Arlon Partners”), Arlon Signtech, Ltd., a
Texas limited partnership (“Arlon Signtech”), Arlon
Viscor, Ltd., a Texas limited partnership (“Arlon
Viscor”), Arlon MED International, LLC, a Delaware limited
liability company (“Arlon MED”), Atlantic Service Co.
(UK) Ltd., a company organized under the laws of the United Kingdom
(“Atlantic Service (UK)”), Bertram & Graf GmbH, an
entity formed under the laws of Germany (“Bertram &
Graf”), EuroKasco S.A.S., an entity formed under the laws of
France (“EuroKasco”), Kasco Mexico, LLC, a Delaware
limited liability company (“Kasco Mexico”), Arlon
Materials for Electronics Co. Ltd., a limited partnership organized
under the laws of China (“Arlon Materials”), Arlon
Material Technologies Co. Ltd., a limited partnership organized
under the laws of China (“Arlon Material
Technologies”), Atlantic Service Co. Ltd., a company
organized under the laws of Canada (“Atlantic
Service”), Kasco Ensambly S.A. de C.V., an entity formed
under the laws of Mexico (“Kasco Ensambly”) 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 Third Amended and Restated Credit Agreement dated as
of May 20, 2005 (as the same may be amended, restated, supplemented
or other wise 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:
SECTION 1.
Guaranty . (a) Subject to Section 1(b), each Guaranty
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 the 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.
SECTION 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 at 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.
SECTION 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).
SECTION 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.
SECTION 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 w
