EXHIBIT 4.3
CONTINUING UNCONDITIONAL GUARANTY
WHEREAS, Xxxxxx Welding Co. ("Borrower") has entered into a Loan and
Security Agreement dated August 11th, 2004 (as amended, amended and restated or
otherwise modified from time to time, the "Loan Agreement") with STANDARD
FEDERAL BANK N.A. ("Lender") pursuant to which Lender has made or may, in its
sole discretion, from time to time hereafter, make loans and advances to or
extend other financial accommodations to Borrower;
WHEREAS, the undersigned is desirous of having Lender extend and/or
continue the extension of credit to Borrower and Lender has required that
Guarantor (as hereinafter defined) execute and deliver this Guaranty to Lender
as a condition to the extension and continuation of credit by Lender; and
WHEREAS, the extension and/or continued extension of credit, as aforesaid,
by Lender is necessary and desirable to the conduct and operation of the
business of Borrower and will inure to the personal and financial benefit of
Guarantor;
NOW, THEREFORE, for value received and in consideration of any loan,
advance, or financial accommodation of any kind whatsoever heretofore, now or
hereafter made, given or granted to Borrower by Lender (including, without
limitation, the Loans as defined in, and made or to be made by Lender to
Borrower pursuant to, the Loan Agreement), the undersigned (the "Guarantor")
unconditionally guaranties (i) the full and prompt payment when due, whether at
maturity or earlier, by reason of acceleration or otherwise, and at all times
thereafter, of all of the indebtedness, liabilities and obligations of every
kind and nature of Borrower to Lender or any parent, affiliate or subsidiary of
Lender (the term "Lender" as used hereafter shall include such parents,
affiliates and subsidiaries), howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, joint or several, now or hereafter
existing, or due or to become due, and howsoever owned, held or acquired by
Lender, whether through discount, overdraft, purchase, direct loan or as
collateral or otherwise, including without limitation all obligations and
liabilities of Borrower to Lender under the Loan Agreement and (ii) the prompt,
full and faithful discharge by Borrower of each and every term, condition,
agreement, representation and warranty now or hereafter made by Borrower to
Lender (all such indebtedness, liabilities and obligations being hereinafter
referred to as the "Borrower's Liabilities"). Guarantor further agrees to pay
all costs and expenses, including, without limitation, all court costs and
reasonable attorneys' and paralegals' fees paid or incurred by Lender in
endeavoring to collect all or any part of Borrower's Liabilities from, or in
prosecuting any action against, Guarantor or any other guarantor of all or any
part of Borrower's Liabilities. All amounts payable by Guarantor under this
Guaranty shall be payable upon demand by Lender.
Notwithstanding any provision of this Guaranty to the contrary, it is
intended that this Guaranty, and any liens and security interests granted by
Guarantor to secure this Guaranty, not constitute a "Fraudulent Conveyance" (as
defined below). Consequently, Guarantor agrees that if the Guaranty, or any
liens or security interests securing this Guaranty, would, but for the
application of this sentence, constitute a Fraudulent Conveyance, this Guaranty
and each such lien and security interest shall be valid and enforceable only to
the maximum extent that would
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not cause this Guaranty or such lien or security interest to constitute a
Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have
been amended accordingly at all relevant times. For purposes hereof, "Fraudulent
Conveyance" means a fraudulent conveyance under Section 548 of the "Bankruptcy
Code" (as hereinafter defined) or a fraudulent conveyance or fraudulent transfer
under the provisions of any applicable fraudulent conveyance or fraudulent
transfer law or similar law of any state, nation or other governmental unit, as
in effect from time to time.
Guarantor hereby agrees that, except as hereinafter provided, its
obligations under this Guaranty shall be unconditional, irrespective of (i) the
validity or enforceability of Borrower's Liabilities or any part thereof, or of
any promissory note or other document evidencing all or any part of Borrower's
Liabilities, (ii) the absence of any attempt to collect Borrower's Liabilities
from Borrower or any other guarantor or other action to enforce the same, (iii)
the waiver or consent by Lender with respect to any provision of any instrument
evidencing Borrower's Liabilities, or any part thereof, or any other agreement
heretofore, now or hereafter executed by Borrower and delivered to Lender, (iv)
failure by Lender to take any steps to perfect and maintain its security
interest in, or to preserve its rights to, any security or collateral for
Borrower's Liabilities, (v) the institution of any proceeding under Chapter 11
of Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as
amended (the "Bankruptcy Code"), or any similar proceeding, by or against
Borrower, or Lender's election in any such proceeding of the application of
Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a
security interest by Borrower as debtor-in-possession, under Section 364 of the
Bankruptcy Code, (vii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of Lender's claim(s) for repayment of Borrower's
Liabilities, or (viii) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of receivership or bankruptcy of Borrower,
protest or notice with respect to Borrower's Liabilities and all demands
whatsoever, and covenants that this Guaranty will not be discharged, except by
complete performance of the obligations and liabilities contained herein. Upon
any default by Borrower as provided in any instrument or document evidencing all
or any part of Borrower's Liabilities, including without limitation the Loan
Agreement, Lender may, at its sole election, proceed directly and at once,
without notice, against Guarantor to collect and recover the full amount or any
portion of Borrower's Liabilities, without first proceeding against Borrower, or
any other person, firm, or corporation, or against any security or collateral
for Borrower's Liabilities.
Lender is hereby authorized, without notice or demand and without
affecting the liability of Guarantor hereunder, to at any time and from time to
time (i) renew, extend, accelerate or otherwise change the time for payment of,
or other terms relating to, Borrower's Liabilities or otherwise modify, amend or
change the terms of any promissory note or other agreement, document or
instrument now or hereafter executed by Borrower and delivered to Lender; (ii)
accept partial payments on Borrower's Liabilities; (iii) take and hold security
or collateral for the payment of Borrower's Liabilities guaranteed hereby, or
for the payment of this Guaranty, or for the payment of any other guaranties of
Borrower's Liabilities or other liabilities of Borrower, and
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exchange, enforce, waive and release any such security or collateral; (iv) apply
such security or collateral and direct the order or manner of sale thereof as in
its sole discretion it may determine; and (v) settle, release, compromise,
collect or otherwise liquidate Borrower's Liabilities and any security or
collateral therefor in any manner, without affecting or impairing the
obligations of Guarantor hereunder. Lender shall have the exclusive right to
determine the time and manner of application of any payments or credits, whether
received from Borrower or any other source, and such determination shall be
binding on Guarantor. All such payments and credits may be applied, reversed and
reapplied, in whole or in part, to any of Borrower's Liabilities as Lender shall
determine in its sole discretion without affecting the validity or
enforceability of this Guaranty.
To secure the payment and performance of Guarantor's obligations and
liabilities contained herein, Guarantor grants to Lender a security interest in
all property of Guarantor delivered concurrently herewith or which is now, or at
any time hereafter in transit to, or in the possession, custody or control of
Lender or any affiliate of Lender, and all proceeds of all such property.
Guarantor agrees that Lender shall have the rights and remedies of a secured
party under the Uniform Commercial Code of Michigan, as now existing or
hereafter amended, with respect to all of the aforesaid property, including
without limitation thereof, the right to sell or otherwise dispose of any or all
of such property and apply the proceeds of such sale to the payment of
Borrower's Liabilities. In addition, at any time after maturity of Borrower's
Liabilities by reason of acceleration or otherwise, Lender may, in its sole
discretion, without notice to Guarantor and regardless of the acceptance of any
security or collateral for the payment hereof, appropriate and apply toward the
payment of Borrower's Liabilities (i) any indebtedness due or to become due from
Lender to Guarantor, and (ii) any moneys, credits or other property belonging to
Guarantor, at any time held by or coming into the possession of Lender whether
for deposit or otherwise.
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of Borrower, and any and all endorsers and/or other
guarantors of any instrument or document evidencing all or any part of
Borrower's Liabilities and of all other circumstances bearing upon the risk of
nonpayment of Borrower's Liabilities or any part thereof that diligent inquiry
would reveal and Guarantor hereby agrees that Lender shall have no duty to
advise Guarantor of information known to Lender regarding such condition or any
such circumstances or to undertake any investigation not a part of its regular
business routine. If Lender, in its sole discretion, undertakes at any time or
from time to time to provide any such information to any Guarantor, Lender shall
be under no obligation to update any such information or to provide any such
information to Guarantor on any subsequent occasion.
Guarantor consents and agrees that Lender shall be under no obligation to
marshal any assets in favor of Guarantor or against or in payment of any or all
of Borrower's Liabilities. Guarantor further agrees that, to the extent that
Borrower makes a payment or payments to Lender, or Lender receives any proceeds
of collateral, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to Borrower, its estate, trustee, receiver or any other
party, including, without limitation, Guarantor, under any bankruptcy law, state
or federal law, common law or
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equitable theory, then to the extent of such payment or repayment, Borrower's
Liabilities or the part thereof which has been paid, reduced or satisfied by
such amount, and Guarantor's obligations hereunder with respect to such portion
of Borrower's Liabilities, shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred.
Guarantor agrees that any and all claims of Guarantor against Borrower,
any endorser or any other guarantor of all or any part of Borrower's
Liabilities, or against any of Borrower's properties, whether arising by reason
of any payment by Guarantor to Lender pursuant to the provisions hereof, or
otherwise, shall be subordinate and subject in right of payment to the prior
payment, in full, of all of Borrower's Liabilities.
Lender may, without notice to anyone, sell or assign Borrower's
Liabilities or any part thereof, or grant participations therein, and in any
such event each and every immediate or remote assignee or holder of, or
participant in, all or any of Borrower's Liabilities shall have the right to
enforce this Guaranty, by suit or otherwise for the benefit of such assignee,
holder, or participant, as fully as if herein by name specifically given such
right, but Lender shall have an unimpaired right, prior and superior to that of
any such assignee, holder or participant, to enforce this Guaranty for the
benefit of Lender, as to any part of Borrower's Liabilities retained by Lender.
This Guaranty shall be binding upon Guarantor and upon the successors
(including without limitation, any receiver, trustee or debtor in possession of
or for Guarantor) of Guarantor and shall inure to the benefit of Lender and its
successors and assigns. If there is more than one signatory hereto, all
references to Guarantor herein shall include each and every Guarantor and each
and every obligation of Guarantor hereunder shall be the joint and several
obligation of each Guarantor. Each Guarantor that is a corporation or a
partnership hereby represents and warrants that it has all necessary corporate
or partnership authority, as the case may be, to execute and deliver this
Guaranty and to perform its obligations hereunder.
This Guaranty shall continue in full force and effect, and Lender shall be
entitled to make loans and advances and extend financial accommodations to
Borrower on the faith hereof until such time as Lender has, in writing, notified
Guarantor that all of Borrower's Liabilities have been paid in full and
discharged and the Loan Agreement has been terminated or until Lender has
actually received written notice from any Guarantor of the discontinuance of
this Guaranty as to that Guarantor, or written notice of the death, incompetency
or dissolution of any Guarantor. In case of any discontinuance by, or death,
incompetency or dissolution of, any Guarantor (collectively, a "Termination
Event"), this Guaranty and the obligations of such Guarantor and his or its
heirs, legal representatives, successors or assigns, as the case may be, shall
remain in full force and effect with respect to all of Borrower's Liabilities
incurred prior to the receipt by Lender of written notice of the Termination
Event. The occurrence of a Termination Event with respect to one Guarantor shall
not affect or impair the obligations of any other Guarantor hereunder.
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Wherever possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such 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 Guaranty.
THIS GUARANTY SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE
STATE OF MICHIGAN.
Guarantor irrevocably agrees that ALL ACTIONS OR PROCEEDINGS IN ANY WAY,
MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS GUARANTY SHALL BE
LITIGATED IN COURTS HAVING SITUS WITHIN THE COUNTY OF OAKLAND, STATE OF
MICHIGAN. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY
LOCAL, STATE OR FEDERAL COURTS LOCATED WITHIN SAID COUNTY AND STATE. Guarantor
agrees that service of such process upon such person shall constitute personal
service of such process upon Guarantor. GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY
HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST GUARANTOR
BY LENDER IN ACCORDANCE WITH THIS PARAGRAPH.
GUARANTOR HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS GUARANTY.
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
undersigned as of this 11th day of August, 2004.
TARPON INDUSTRIES, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chief Executive Officer
Address:
0000 Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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