EXHIBIT 4.12
SUBORDINATION AGREEMENT
THIS AGREEMENT is dated as of _____ day of May, 2004 but effective as of
May 14, 2004 between Xxxxx Xxxxxx and Xxxxx Xxxxxx (the "PRINCIPALS") and
Greenfield Commercial Credit (Canada) Inc. ("GREENFIELD");
WHEREAS Steelbank Inc. (the "CORPORATION") proposes to enter into a
Factoring and Security Agreement and a General Security Agreement (collectively
the "GREENFIELD SECURITY") each between the Corporation and Greenfield made
effective the 14th day of May, 2004 pursuant to which Greenfield agreed to
provide certain financing to Corporation;
WHEREAS the Corporation has guaranteed repayment of the sum of $150,000
plus interests and other payments by Tarpon Industries, Inc., to the Principals
and has granted a security interest in the Corporation's assets pursuant to the
provisions of certain loan documents, guarantees, or other documents or
agreements to be entered into between the Principals and the Corporation
evidencing such loans by or guarantees for the benefit of the Principals (or any
one or more of them) to the Corporation (collectively, the "PRINCIPAL
DOCUMENTS");
WHEREAS it is desirable that the Principals and Greenfield confirm their
respective priorities as creditors of the Corporation and as secured parties
with respect to the assets of the Corporation.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants and agreements herein contained, other good and valuable consideration
and the sum of Two Dollars ($2.00) of lawful money of Canada paid by and between
Greenfield and the Principals (the receipt and sufficiency of which
consideration are hereby acknowledged), the parties hereto agree as follows:
1. Postponement of Payment of Principal Debt.
The Principals hereby postpone payment by the Corporation to the
Principals of all present and future indebtedness and liability now or hereafter
owing by the Corporation to the Principals, whether direct or indirect, absolute
or contingent, matured (by way of acceleration or otherwise) or unmatured (the
"PRINCIPAL DEBT") to and in favour of the payment of all present and future
indebtedness and liability now or hereafter owing by the Corporation to
Greenfield, whether direct or indirect, absolute or contingent, matured (by way
of acceleration or otherwise) or unmatured (collectively, the "SENIOR DEBT").
Except as permitted under the terms of the Greenfield Security or this
Agreement, the Principals shall not obtain or receive payment of any amount of
the Principal Debt from the Corporation until the Senior Debt has been fully
paid in cash and until Greenfield has no obligation to extend credit to the
Corporation.
2. Postponement and Subordination of Security.
The Principals hereby postpone and subordinate all existing and future
security heretofore, now or hereafter delivered by the Corporation to the
Principals (collectively, the "PRINCIPAL SECURITY") to and in favour of the
Greenfield Security and all existing and future security heretofore, now or
hereafter delivered by the Corporation to Greenfield (collectively, the "SENIOR
SECURITY"). Notwithstanding any priority to which the Principal may be or may
hereafter become entitled for any reason whatsoever (including, without
limitation, priority by date and the time or order of creating, granting or
executing any document, the actual or alleged invalidity or unenforceability of
any of the Senior Security, the perfection of, or the giving of notice or any
demand for payment under the date of advance, registration, publication, filing
or crystallization of or in respect of any charge or encumbrance contained in
the Principal Security and the security interests created thereby or by any
provisions of any relevant law or statute), the Senior Security and all rights
provided thereunder or by law or otherwise shall have full and absolute priority
over and with respect to the Principal Security, and the Principal Security
shall in all respects be postponed and rank subordinate and junior to
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the Senior Security and all rights provided thereunder or by law or otherwise
until the parties hereto agree otherwise in writing or all of the Senior Debt is
repaid in full. All liens, charges, security interests and other encumbrances
contained in the Senior Security shall, in all events and under all
circumstances, rank in priority to all liens, charges, security interests and
other encumbrances contained in the Principal Security.
3. No Enforcement of the Principal Debt and the Principal Security.
The Principals shall not, without the prior written consent of Greenfield,
claim, demand, xxx for, commence any action, commence any proceeding or take any
step (related to, initiating any bankruptcy or insolvency proceeding until the
date on which the Senior Debt has been paid in full in cash and Greenfield has
no obligation to extend credit to the Corporation but may commence an action to
enforce any right of the Principals against the Corporation pursuant to or in
respect of the Principal Debt provided enforcement of any resulting judgment
shall be subject to Section 2 hereof.
4. Liquidation, Dissolution, Bankruptcy.
In the event of distribution, division or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of the assets of the Corporation, or the proceeds thereof, to creditors
or any proposal by the Corporation to creditors for a readjustment,
reamortization or restructuring of the Senior Debt or the Principal Debt, or
other readjustment of any of the indebtedness or liabilities of the Corporation,
whether by reason of liquidation, bankruptcy, arrangement, receivership,
assignment for the benefit of creditors, marshalling of the assets or
liabilities of the Corporation or any other action or proceeding involving the
readjustment of all or any part of the Senior Debt or the Principal Debt, or the
application of the assets of the Corporation to the payment or liquidation
thereof, or upon the dissolution or other winding-up of the business of the
Corporation, or upon the sale of all or substantially all of the business of the
Corporation, Greenfield shall be entitled to receive payment in full in cash of
the Senior Debt (including interest accruing
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to the date of receipt of such payment at the rate applicable to the relevant
part of the Senior Debt, whether or not allowed as a claim in any such
proceeding) before the Principals are entitled to receive any direct or indirect
payment or distribution of any cash or other assets of the Corporation on
account of the Principal Debt and, to that end, Greenfield shall be entitled to
receive directly, for application in payment of the Senior Debt (to the extent
necessary to pay all Senior Debt in full in cash after giving effect to any
substantially concurrent payment or distribution to Greenfield in respect of the
Senior Debt), any payment or distribution of any kind or character, whether in
cash or other assets, which shall be payable or deliverable upon or with respect
to the Principal Debt. To the extent any payment of Senior Debt (whether by or
on behalf of the Corporation, as proceeds of security or enforcement of any
right of set-off or otherwise) is declared to be fraudulent or preferential, set
aside or required to be paid to a trustee, receiver, receiver and manager or
other similar person under any bankruptcy, insolvency, receivership or similar
law or proceeding, then if such payment is recoverable by, or paid over to, such
trustee, receiver, receiver and manager or other person, the Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
5. Payments Received by the Principal.
If, notwithstanding the provisions of this Agreement, prior to the payment
in full in cash of the Senior Debt, the Principals (or any one or more of them)
or any person on its behalf receives any payment from or distribution of assets
of the Corporation on account of the Principal Debt, which under the provisions
of this Agreement, the Principals are not specifically authorized to receive,
then the Principals shall, and will ensure that any such other person shall,
receive and hold such payment or distribution in trust for the benefit of
Greenfield and shall promptly pay the same over to Greenfield in precisely the
form received (except for the endorsement or assignment by the Principals or
such other person where necessary) to the extent necessary to pay the
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Senior Debt in full after giving effect to any substantially concurrent payment
or distribution to or for the benefit of Greenfield in respect of the Senior
Debt.
6. Notice of Default.
The Principals shall give to Greenfield notice forthwith of any default by
the Corporation of any of the Corporation's indebtedness, liability or
obligations to any of the Principals, which notice shall specify all then
existing defaults in respect of such indebtedness, liability or obligations
which are known to the Principals.
7. No Waiver of Subordination Provisions.
No right of Greenfield to enforce the postponements and subordinations as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Corporation or by any act or failure to
act by Greenfield or any agent of or trustee for Greenfield, or by any
non-compliance by the Corporation with any of the agreements or instruments
relating to the Principal Debt, regardless of any knowledge thereof which
Greenfield may have or be otherwise charged with. Without limitation to the
foregoing, Greenfield may, at any time and from time to time, without the
consent of or notice to the Principals, without incurring responsibility to the
Principals and without impairing or releasing the postponements and
subordinations and other rights or benefits provided in this Agreement or the
obligations hereunder of the Principals to Greenfield, do any one or more of the
following:
(a) change the manner, place or terms of payment or change or extend the
time of payment of, or renew, exchange, amend or alter the terms of
any Senior Debt, any Senior Security or any guarantee thereof or any
liability of the Corporation, or any guarantor of the Senior Debt,
or any liability incurred directly or indirectly in respect thereof,
or otherwise increase, reduce, amend, alter, renew, exchange, modify
or supplement in any manner the Senior Debt or any instrument
evidencing or guaranteeing or
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securing the same or any agreement under which any of the Senior
Debt is outstanding;
(b) sell, exchange, release, surrender, realize upon, enforce or
otherwise deal with in any manner any assets pledged or mortgaged
for or otherwise securing the Senior Debt or any liability of the
Corporation or any guarantor of the Senior Debt, or any liability
incurred directly or indirectly in respect thereof;
(c) settle or compromise any Senior Debt or any other liability of the
Corporation or any guarantor of the Senior Debt, or any security
therefor or any liability incurred directly or indirectly in respect
thereof, and apply any sums by whomsoever paid and however realized
to any liability (including the Senior Debt) in any manner or order;
and
(d) fail to take or to register or otherwise perfect any lien, mortgage,
charge or security interest securing the Senior Debt, exercise or
delay in or refrain from exercising any right or remedy against the
Corporation or any guarantor of the Senior Debt or any security or
any other person, and elect any remedy and otherwise deal freely
with the Corporation and any guarantor of the Senior Debt and with
any security.
8. Application of Payments.
All payments received by Greenfield may be applied, reversed and
reapplied, in whole or in part, to any of the Senior Debt, as Greenfield in its
sole discretion deems appropriate.
9. Waivers by The Principal.
All of the Senior Debt shall be deemed to have been made or incurred and
continued in reliance upon this Agreement. The Principals agree that Greenfield
has made no warranties or representations with respect to the due execution,
legality,
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validity, completeness, perfection or enforceability of any agreement or
instrument relating to the Senior Debt or the collectibility of the Senior Debt,
that Greenfield shall be entitled to manage and supervise its financial
accommodation to the Corporation in accordance with applicable law and its usual
practices, modified from time to time as it deems appropriate under the
circumstances, without regard to the existence of any rights that the Principals
(or any one or more of them) may now or hereafter have in or to any of the
assets of the Corporation, and that Greenfield shall have no liability to the
Principals (or any one or more of them) for, and the Principals hereby
collectively waive any claims which they may now or hereafter have against
Greenfield arising out of, any and all actions which Greenfield, may take or
omit to take (including without limitation actions with respect to the creation,
attachment, perfection or continuation of liens, mortgages, charges or security
interests in any assets at any time securing payment of the Senior Debt, actions
with respect to the occurrence of any default under any agreement or instrument
relating to the Senior Debt, actions with respect to the foreclosure upon, sale,
release or depreciation of, or failure to realize upon, any assets securing
payment of the Senior Debt and actions with respect to the collection of any
claims for all or any part of the Senior Debt from any account debtor, guarantor
or any other person) with respect to the Senior Debt and any agreement or
instrument related thereto or with respect to the collection of the Senior Debt
or the valuation, use, protection or release of any assets securing payment of
the Senior Debt, except actions which are wrongful or grossly negligent.
10. Written Waivers.
No waiver shall be deemed to be made by Greenfield or the Principals of
any of its or his rights hereunder, unless the same shall be in writing signed
by such party, and each waiver, if any, shall (unless specifically expressed
therein to be otherwise) be a waiver only with respect to the specific instance
involved and shall in no way impair the rights of such party or the obligations
of the other party in any other respect or at any other time.
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11. Successors and Assigns.
The provisions of this Agreement shall be binding on and shall enure to
the benefit of Greenfield and the Principals and their respective
administrators, executors, heirs, trustees, successors and assigns. The
Principals shall not assign, sell or transfer the Principal Debt or the
Principal Security, or any part thereof, to any person, unless such person
agrees, by agreement in writing with and satisfactory to the Lender, to be bound
by the provisions of this Agreement.
12. Notices.
Any notice desired or required to be given under this Agreement shall be
in writing and shall be deemed to have been validly served, given or delivered:
(a) when sent, after receipt of confirmation of transmission by facsimile, telex
or similar transmission; (b) the next business day after deposit with a
reputable overnight courier in Ontario with all charges prepaid; or (c) when
delivered, if hand delivered by messenger, all of which shall be when properly
addressed to the party to be notified and sent to the address or number
indicated as follows:
If to the Lender:
Greenfield Commercial Credit (Canada) Inc.
000 - 00 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Chief Financial Officer
Facsimile: 000-000-0000
With a copy to:
Greenfield Commercial Credit LLC
000 X. Xxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Credit Manager
Facsimile: 000-000-0000
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If to the Principals:
Xxxxx Xxxxxx
0000 Xxxxxxx Xxx, #000
Xxxxxxxx, XX 00000
Xxxxx Xxxxxx
Heritage Field
Xxxxxx Xxxxxxx
Southam Warwickshire cv 472 ab
England
With a copy to:
Xxxxxxx & Xxxxxx, P.C.
26300 Northwestern Hwy., 0xx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx-Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address of a party hereto as it may designate to the other
party hereto in the manner herein prescribed.
13. Entire Agreement: Severability.
This Agreement contains the entire postponement and subordination
agreement between the parties hereto with respect to the indebtedness,
liabilities and assets of the Corporation. If any of the provisions of this
Agreement shall be held invalid or unenforceable by any court having
jurisdiction, this Agreement shall be construed as if not containing those
provisions, and the rights and obligations of the parties hereto shall be
construed and enforced accordingly.
14. Cumulative Rights.
The rights, powers and remedies under this Agreement shall be in addition
to all rights, powers and remedies given by virtue of any statute or rule of
law, or any
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agreement or instrument, all of which rights, powers and remedies shall be
cumulative and may be exercised successively or concurrently.
15. Information.
From time to time upon request therefor, each of the Principals and
Greenfield shall provide to the others such information with respect to the
Corporation and its indebtedness and liabilities as may be reasonably requested.
16. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of Ontario and the federal laws of Canada applicable therein.
17. Execution in Counterparts.
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and both of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement.
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
)
)
/s/ Xxx Xxxxxxx 5-28-04 /s/ Xxxxx Xxxxxx
------------------------------ ----------------------------------
Witness ) Xxxxx Xxxxxx
)
/s/ Xxxxxxxxx Prior /s/ Xxxxx Xxxxxx
------------------------------ ----------------------------------
Witness ) Xxxxx Xxxxxx
)
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GREENFIELD COMMERCIAL
CREDIT (CANADA) INC.
By: /s/ H. Xxxxx Xxxxx
-----------------------------------
Name: H. Xxxxx Xxxxx
Title: Chief Financial Officer
TO: GREENFIELD COMMERCIAL CREDIT (CANADA) INC. ("GREENFIELD")
AND TO: XXXXX XXXXXX AND XXXXX XXXXXX (the "PRINCIPALS")
BORROWER'S AGREEMENT
IN CONSIDERATION of the extension of credit by Greenfield to the Corporation,
the Corporation hereby:
1. consents to the foregoing subordination agreement;
2. agrees that it will not make any payments to the Principals except as may
be expressly permitted by the foregoing Senior Security and the
subordination agreement;
3. agrees that it shall acquire no rights pursuant to the foregoing
subordination agreement;
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4. agrees that in order to facilitate any subrogation rights arising pursuant
to the foregoing subordination agreement, no payments or distributions to
Greenfield of any cash or other assets to which the Principals would have
been entitled but for the provisions of the foregoing subordination
agreement, and no payments over pursuant to the provisions of the
foregoing subordination agreement made by the Principals to Greenfield
shall, as between the Corporation and its creditors (other than Greenfield
be deemed to be a payment or a distribution by the Corporation to or on
account of the Senior Debt. The Corporation shall, as between itself and
such creditors, continue to owe all such amounts as Senior Debt, it being
understood that this provision is solely for the purpose of facilitating
any subrogation rights arising in favour of the Principals pursuant to the
foregoing subordination agreement; and
5. agrees that each of Greenfield and the Principals may provide to the other
at any time and from time to time any information in its possession or
control in respect of the Corporation and its affairs including, without
limitation, notice of any default or impending default.
All words capitalized in this agreement shall have the meanings assigned to them
by the foregoing subordination agreement.
DATED as of the 18th day of May, 2004.
STEELBANK INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
(without personal liability
whatsoever)
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