AMENDEDMENT TO
OMNIBUS AMENDMENT AND WAIVER
This Amendment to Omnibus Amendment and Waiver (this "Amendment"), dated
February 12, 2008, is entered into by and between Tarpon Industries, Inc., a
Michigan corporation (the "Company"), and Laurus Master Fund, Ltd., a Cayman
Islands company (the "Purchaser") for the purpose of amending the terms of the
Omnibus Amendment and Waiver, dated December 21, 2007 by and between the Company
and Purchaser (the "December Amendment"). Capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the December
Amendment.
PREAMBLE
WHEREAS, Purchaser and the Company desire to amend certain provisions of
the December Amendment.
NOW, THEREFORE, in consideration of the covenants, agreements and
conditions hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Amendments
1. Section 1 of the December Amendment is hereby amended by deleting it in
its entirety and inserting the following new Section in lieu thereof:
"1. Laurus hereby waives the Existing Defaults. Laurus further waives
default interest under the Note which has accrued and remains unpaid as of the
date hereof. Notwithstanding the foregoing, the Company hereby covenants and
agrees that: (i) it will raise additional equity of no less than five million
dollars ($5,000,000) by June 30, 2008; (ii) it will raise additional unsecured
debt financing of at least $1,000,000 by March 15, 2008; (iii) the Pastdue
Principal shall be paid in full on the Maturity Date (as defined in the Note
after giving effect to the Amendment Effective Date (as defined below)),
together with all other amounts due and payable on such date under the Purchase
Agreement, the Related Agreements referred to therein, the Security Agreement
and the Ancillary Agreements referred to therein; (iv) the Judgment Liens shall
be satisfied in full and/or otherwise removed by no later than March 30, 2008;
and (v) the Property Tax liens shall be satisfied in full and/or otherwise
removed by no later than March 30, 2008. Failure of the Company to comply with
any of the items (i) through (v) above will result in the above waivers being
null and void and the Company will be liable for all Existing Defaults."
Miscellaneous
2. Except as set forth herein, the December Amendment shall remain in full
force and effect in accordance with its terms.
3. Except as specifically set forth in this Amendment, there are no other
amendments, modifications or waivers to the Loan Documents, and all of the other
forms, terms and provisions of the Loan Documents remain in full force and
effect.
4. The Company hereby represents and warrants to the Purchaser that, upon
execution and effectiveness of this Amendment, (i) no Event of Default (as
defined in the Note) exists on the date hereof, (ii) on the date hereof, all
representations, warranties and covenants made by the Company in connection with
the Loan Documents are true, correct and complete and (iii) on the date hereof,
all of the Company's and its Subsidiaries' covenant requirements have been met.
5. From and after the Amendment Effective Date, all references in the Loan
Documents shall be deemed to be references to the Loan Documents, as the case
may be, as modified hereby.
6. This Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to the benefit of
and be enforceable by each of the parties hereto and their respective successors
and permitted assigns. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This Amendment
may be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
or has caused this Amendment to be executed on its behalf by a representative
duly authorized, all as of the date first above set forth.
COMPANY: PURCHASER:
TARPON INDUSTRIES, INC. LAURUS MASTER FUND, LTD.
BY: LAURUS CAPITAL MANAGEMENT, LLC,
ITS INVESTMENT MANAGER
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxxxx
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Title: Chief Executive Officer Title: Authorized Signatory
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Acknowledged and Agreed:
XXXXXX WELDING CO.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Chief Executive Officer
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