Exhibit 4.15
FIRST AMENDMENT TO LOAN AGREEMENT
AND REAFFIRMATION OF GUARANTY
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Agreement") is made and
entered into as of the 24th day of December, 2004, by and between STANDARD
FEDERAL BANK, N.A., a national banking association ( "LENDER"), and BUGENE
WELDING CO., a Michigan corporation ("BORROWER").
RECITALS
A. Lender has made or agreed to make to Borrower (i)certain revolving
loans (the "Revolving Loans") in the original principal sum of up to $7,000,000,
as evidenced by that certain Revolving Note dated as of August 11, 2004 (the
"Revolving Note") and (ii) a certain term loan in the original principal sum of
$1,394,000, as evidenced by that certain Term Note dated August 11, 2004 (the
"Term Note")(collectively, the "Notes").
B. The aforementioned loans were made pursuant to and secured by, inter
alia, (i) a Loan Agreement dated August 11, 2004 (the "Loan Agreement"), between
Borrower and Lender, (ii) a Securities Pledge Agreement ( the "Pledge
Agreement") dated August 11, 2004, from Borrower in favor of Lender, (iii) a
Continuing Unconditional Guaranty, (the "Guaranty") dated August 11, 2004, of
Tarpon Industries, Inc. and (iv) the Other Agreements (as defined in the Loan
Agreement).
C. The Notes, the Loan Agreement, the Pledge Agreement, the Guaranty and
the Other Agreements are collectively referred to herein as the "Financing
Agreements." All other capitalized terms used herein and not otherwise defined
herein shall have the same meanings as in the Loan Agreement.
E. Lender and Borrower desire to amend the Loan Agreement to increase the
Maximum Revolving Loan Limit from $7,000,000 to $9,000,000, and for the other
purposes and on the terms set forth herein.
Now therefore, in consideration of the foregoing recitals and mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. On and after the date hereof, the proviso at the end of the first
paragraph of Section 2(a) of the Loan Agreement, shall be modified to read as
follows:
provided, that the Revolving Loan Limit shall in no event exceed Nine
Million Dollars ($9,000,000)(the "MAXIMUM REVOLVING LOAN LIMIT").
2. On and after the date hereof, the definition of "Maximum Loan Limit" in
Section 1 of the Loan Agreement shall be modified to read as follows:
"MAXIMUM LOAN LIMIT" shall mean Ten Million Three Hundred Ninety-Four
Thousand Dollars ($10,394,000).
3. On and after the date hereof, the terms "Maximum Revolving Loan Limit"
and "Maximum Loan Limit" as used in the Financing Documents, shall have the
meanings set forth in the foregoing amendments.
4. As a condition precedent to any obligations of the Lender under this
Agreement, the guarantor under the Guaranty shall have executed a Reaffirmation
of the Guaranty as provided on the signature page hereof, and Borrower shall
have (i) delivered to Lender a replacement revolving promissory note in the
original principal amount of up to $9,000,000, in replacement of and
substitution for, but not a novation or satisfaction of, the Revolving Note; and
(ii) paid and/or reimbursed all fees, costs, and expenses owed to the Lender due
and payable under the Financing Agreements and/or this Agreement as of the date
hereof, including a commitment fee of $20,000 payable on the date hereof and all
attorneys fees and costs incurred in the preparation hereof.
5. Borrower hereby represents and warrants to Lender that the
representations and warranties made by it in the Financing Agreements are true
and correct as if made on the date hereof after accounting for the amendments
set forth herein, and each further represents and warrants as follows:
a. As of the date hereof, the Financing Agreements are in full force and
effect, and Borrower is not in default in the payment of any sums, charges
or obligations under the Financing Agreements or in the payment or
performance of any covenants, agreements or conditions of Borrower
contained in the Financing Agreements;
b. As of the date hereof, Borrower has no right or claim of set-off,
discount, deduction, defense or counterclaim which could be asserted in any
action brought to enforce the Financing Agreements, and each hereby waives
all of the same that it may have on the date hereof; and
c. Borrower is not in default in the performance or observance of any of
its covenants, agreements and obligations under the Financing Agreements,
nor is there any other Event of Default under the Financing Agreements or
any event which, with notice or the passage of time, would constitute an
Event of Default thereunder.
6. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute and be taken as one and the same instrument. None of the covenants,
terms, or conditions of this Agreement shall in any manner be altered, waived,
modified, changed or abandoned, except by written instrument, duly signed and
delivered by all the parties hereto.
7. This Agreement contains the whole agreement between the parties hereto
as to the subject matter hereof and there are no other terms, obligations,
covenants, representations, warranties, statements, or conditions, oral or
otherwise, of any kind. This Agreement shall extend to, be obligatory upon and
inure to the benefit of the respective successors and assigns of Borrower and
Lender.
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8. Except as expressly amended hereby, all of the other terms, covenants,
conditions and warranties contained in the Financing Agreements shall continue
and remain unchanged and in full force and effect and are hereby ratified and
confirmed. Borrower does hereby covenant and agree to pay the Indebtedness owed
by it under the Financing Agreements at the times and in the manner provided
therein and otherwise to comply with all the terms, covenants, conditions and
warranties contained therein, as amended from time to time.
In witness whereof, the parties hereto have duly executed this instrument
as of the day and year first above written.
XXXXXX WELDING CO., a Michigan corporation
By: /s/Xxxxx X. House
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12-24-04 , CFO
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STANDARD FEDERAL BANK, N.A., a national
banking association
By: /s/Xxxx Xxxxxx
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Xxxx Xxxxxx, Vice President
REAFFIRMATION OF GUARANTY
The undersigned, as guarantor of the indebtedness of Xxxxxx Welding Co.,
pursuant to a certain Continuing Unconditional Guaranty executed by it on August
11, 2004, represents and warrants that: (i) the guaranty has not been modified
or amended, nor have any provisions thereof been waived, nor is there existing
any default thereunder, nor has there occurred any condition or event which,
with the giving of notice or the passage of time, would result in a default
thereunder, and the same is in full force and effect; and (ii) the undersigned
has no claim or right of offset against Standard Federal Bank N.A. on the date
hereof with regard to the guaranty, and waives all defenses to enforcement of
the guaranty that it may have on the date hereof. The undersigned hereby
reaffirms, confirms and ratifies to Standard Federal Bank N.A. all of the terms
and provisions of the guaranty and each and every obligation thereunder.
TARPON INDUSTRIES, INC., a Michigan
corporation
By: /s/Xxxxx X. House
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12-24-04 , CFO
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FORM OF REPLACEMENT REVOLVING NOTE
Executed as of the 24th day of December, No._____
2004, at Troy Michigan.
$9,000,000.00
THIS NOTE IS A REPLACEMENT AND SUBSTITUTE, FOR BUT NOT A
REPAYMENT OF, THAT CERTAIN $7,000,000 REVOLVING NOTE DATED
AS OF AUGUST 11, 2004, EXECUTED BY THE UNDERSIGNED AND
PAYABLE TO THE ORDER OF LENDER, AND DOES NOT AND SHALL NOT
BE DEEMED TO CONSTITUTE A NOVATION THEREFOR.
FOR VALUE RECEIVED, the Undersigned promises to pay to the
order of STANDARD FEDERAL BANK N.A. (hereinafter, together with any holder
hereof, called "LENDER"), the principal sum of Nine Million and No/100 Dollars
($9,000,000.00) plus the aggregate unpaid principal amount of all advances made
by Lender to the Undersigned pursuant to and in accordance with SUBSECTION 2(a)
of the Loan Agreement (as hereinafter defined) in excess of such amount, or, if
less, the aggregate unpaid principal amount of all advances made by Lender to
the Undersigned pursuant to and in accordance with SUBSECTION 2(a) of the Loan
Agreement. The Undersigned further promises to pay interest on the outstanding
principal amount hereof on the dates and at the rates provided in the Loan
Agreement from the date hereof until payment in full hereof.
This Note is referred to in, and is delivered pursuant to, that
certain Loan and Security Agreement, as it may be amended from time to time,
together with all exhibits thereto, dated August 11, 2004, between Lender and
the Undersigned (the "LOAN AGREEMENT"), to which references is hereby made for,
among other things, the conditions under which this Note may be accelerated. All
terms which are capitalized and used herein (which are not otherwise defined
herein) shall have the meaning ascribed to such term in the Loan Agreement. This
Note is secured by the Collateral described in the Loan Agreement.
THE UNDERSIGNED'S LIABILITIES TO LENDER UNDER THIS NOTE SHALL BE
PAYABLE AT THE TIMES AND IN THE MANNER PROVIDED IN THE LOAN AGREEMENT.
The Undersigned hereby authorizes the Lender to charge any account of the
Undersigned for all sums due hereunder. If payment hereunder becomes due and
payable on a Saturday, Sunday or legal holiday under the laws of the United
States or the State of Michigan, the due date thereof shall be extended to the
next succeeding business day, and interest shall be payable thereon at the rate
specified during such extension. Credit shall be given for payments made in the
manner and at the times provided in the Loan Agreement. It is the intent of the
parties that the rate of interest and other charges to the Undersigned under
this Note shall be lawful; therefore, if for any reason the interest or other
charges payable hereunder are found by a court of competent jurisdiction, in a
final determination, to exceed the limit which Lender may lawfully charge the
Undersigned, then the obligation to pay interest or other charges shall
automatically be reduced to such limit and, if any amount in excess of such
limit shall have been paid, then such amount shall be refunded to the
Undersigned.
The principal and all accrued interest hereunder may be prepaid by the
Undersigned, in part or in full, at any time; provided, however, that the
Undersigned shall pay a prepayment fee as provided in the Loan Agreement.
The Undersigned waives the benefit of any law that would otherwise restrict
or limit Lender in the exercise of its right, which is hereby acknowledged, to
set-off against the Liabilities, without notice and at any time hereafter, any
indebtedness matured or unmatured owing from Lender to the Undersigned. The
Undersigned waives or every defense, counterclaim or setoff which the
Undersigned may now have or hereafter may have to any action by Lender in
enforcing this Note and/or any of the other Liabilities, or in enforcing
Lender's rights in the Collateral and ratifies and confirms whatever Lender may
do pursuant to the terms hereof and of the Loan Agreement and with respect to
the Collateral and agrees that Lender shall not be liable for any error in
judgement or mistakes of fact or law.
The Undersigned, any other party liable with respect to the Liabilities and
any and all endorsers and accommodation parties, and each one of them, if more
than one, waive any and all presentment, demand, notice of dishonor, protest,
and all other notices and demands in connection with the enforcement of Lender's
rights hereunder.
The loan evidenced hereby has been made and this Note has been delivered
at Troy, Michigan. THIS NOTE SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL
LAWS OF THE STATE OF MICHIGAN AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING WITHOUT
LIMITATION,THE LEGALITY OF THE INTEREST RATE AND OTHER CHARGES, and shall be
binding upon the Undersigned and the Undersigned's heirs, legal representatives,
successors and assigns. If this Note contains any blanks when executed by the
Undersigned, the Lender is hereby authorized, without notice to the Undersigned
to complete any such blanks according to the terms upon which the loan or loans
were granted. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or be invalid under
such law, such provision shall be severable, and be ineffective to the extent of
such prohibition or invalidity, without invalidating the remaining provisions of
this Note.
To induce the Lender to make the loan evidenced by this Note, the
Undersigned (i) irrevocably agrees that, subject to Lender's sole and absolute
election, all actions arising directly or indirectly as a result or in
consequence of this Note or any other agreement with the Lender, or the
Collateral, shall be instituted and litigated only in courts having situs in the
County of Oakland, Michigan; (ii) hereby consents to the exclusive jurisdiction
and venue of any State or Federal Court located and having its situs in said
county; and (iii) waives any objection based on forum non-coveniens. IN
ADDITION, LENDER AND THE UNDERSIGNED (OR ANY ONE OF THEM, IF MORE THAN ONE)
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY
OR INDIRECTLY TO THIS NOTE, THE LIABILITIES, THE COLLATERAL, ANY ALLEGED
TORTIOUS CONDUCT BY THE UNDERSIGNED OR LENDER OR WHICH IN ANY WAY, DIRECTLY OR
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INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP BETWEEN THE UNDERSIGNED
AND LENDER. In addition, the Undersigned agrees that all service of process
shall be made as provided in the Loan Agreement.
As used herein, all provisions shall include the masculine, feminine,
neuter, singular and plural thereof, wherever the context and facts require such
construction and in particular the word "Undersigned" shall be so construed.
IN WITNESS WHEREOF, each of the Undersigned, if more than one, has executed
this Note on the date above set forth.
XXXXXX WELDING CO.
a Michigan corporation
By:
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12/24/04, CFO
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Address:
2420 Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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