Attached files
file | filename |
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EX-31.1 - EXHIBIT 31.1 - ARGAN INC | c15466exv31w1.htm |
EX-23.1 - EXHIBIT 23.1 - ARGAN INC | c15466exv23w1.htm |
EX-32.1 - EXHIBIT 32.1 - ARGAN INC | c15466exv32w1.htm |
EX-31.2 - EXHIBIT 31.2 - ARGAN INC | c15466exv31w2.htm |
EX-32.2 - EXHIBIT 32.2 - ARGAN INC | c15466exv32w2.htm |
EX-10.23 - EXHIBIT 10.23 - ARGAN INC | c15466exv10w23.htm |
10-K - FORM 10-K - ARGAN INC | c15466e10vk.htm |
Exhibit 10.24
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT (this
Agreement) is made as of the _____ day of February, 2011, by and among ARGAN, INC., a corporation
organized and in good standing under the laws of the State of Delaware (Argan), SOUTHERN MARYLAND
CABLE, INC., a corporation organized and in good standing under the laws of the State of Delaware,
GEMMA POWER, INC., a corporation organized and in good standing under the laws of the State of
Connecticut, GEMMA POWER SYSTEMS CALIFORNIA, INC., a corporation organized and in good standing
under the laws of the State of California, GEMMA POWER SYSTEMS, LLC, a limited liability company
organized and in good standing under the laws of the state of Connecticut (Gemma), and GEMMA
POWER HARTFORD, LLC, a limited liability company organized and in good standing under the laws of
the State of Connecticut, jointly and severally (each a Borrower; and collectively, the
Borrowers), and BANK OF AMERICA, N.A., a national banking association, its successors and assigns
(the Lender).
RECITALS
A. Borrowers, VITARICH LABORATORIES, INC., a corporation organized and in good standing under
the laws of the State of Delaware (Vitarich) and Lender are parties to a Second Amended and
Restated Financing and Security Agreement dated as of December 11, 2006 (the same, as amended,
modified, substituted, extended, and renewed from time to time, the Financing Agreement).
B. The Financing Agreement provides for some of the agreements between the Borrowers, Vitarich
and the Lender with respect to the Loans.
C. Pursuant to that certain Consent and Release Agreement dated as of February
_____, 2011,
Lender consented to the release of Vitarich, from any and all liability under each of the Financing
Documents.
D. Borrowers have requested that Lender amend certain covenants in the Financing Agreement and
Lender has agreed to do so, on the condition, among others, that this Agreement be executed.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, Borrowers and Lender agree as follows:
1. Recitals. Borrowers and Lender agree that the Recitals above are a part of this
Agreement. Unless otherwise expressly defined in this Agreement, terms defined in the Financing
Agreement shall have the same meaning under this Agreement.
2. Amendment to Section 6.2.6 (Investments, Loans and Other Transactions). Section
6.2.6 of the Financing Agreement is hereby amended and restated in its entirety as follows:
6.2.6 Investments, Loans and Other Transactions.
Except as otherwise provided in this Agreement, none of the Borrowers will, or
will permit any of its Subsidiaries to, (a) make, assume, acquire or continue to
hold any investment in any real property (unless used in connection with its
business and treated as a Fixed or Capital Asset of any Borrower or any Subsidiary)
or any Person, whether by stock purchase, capital contribution, acquisition of
indebtedness of such Person or otherwise (including, without limitation, investments
in any joint venture or partnership), (b) guaranty or otherwise become contingently
liable for the Indebtedness or obligations of any Person, or (c) make any loans or
advances, or otherwise extend credit to any Person, except:
(i) any loan or advance to an officer or employee of any Borrower or any
Subsidiary, provided that the aggregate amount of all such loans advances by all of
the Borrowers and their Subsidiaries (taken as a whole) outstanding at any time
shall not exceed Twenty Five Thousand Dollars ($25,000);
(ii) the endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business;
(iii) any investment in Cash Equivalents, which are pledged to the Lender as
collateral and security for the Obligations;
(iv) trade credit extended to customers in the ordinary course of business;
(v) investments of the Acquired Companies held in investment accounts, as set
forth in detail and disclosed on the Schedule 2.1.5 attached hereto;
(vi) investments in the Acquired Companies under the Acquisition Documentation;
(vii) investments in the joint venture with Invenergy Wind Management LLC that
were consented to by the Lender pursuant to that certain Second Amendment to Second
Amended and Restated Financing and Security Agreement among the Borrowers and the
Lender dated June 3, 2008; and
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(viii) investments in any Person organized under the laws of any State in the
United States or the District of Columbia provided the aggregate amount invested
does not exceed Ten Million Dollars ($10,000,000) in any fiscal year (each a
Permitted Investment), further, provided that each of the
following conditions is satisfied at the time of, and after giving effect to,
any Permitted Investment:
(1) the Borrowers shall, on a pro forma basis, have the sum of (a) unused
availability under the Revolving Loan, plus (b) cash and cash equivalents of the
Borrowers, of not less than Twenty Million Dollars ($20,000,000);
(2) The Borrowers ratio of Senior Funded Debt to EBITDA, on a consolidated
basis, shall be less than 1.50 to 1.00;
(3) No Default or Event of Default shall have occurred and be continuing;
(4) Not less than five (5) Business Days prior to the closing of any Permitted
Investment, Borrowers shall have provided the Lender written notice of such
Permitted Investment, together with calculations and supporting materials which
demonstrate that the Borrowers will satisfy each of the requirements for a Permitted
Investment; and
(5) To the extent not prohibited under the terms of the documents evidencing
the Permitted Investment, if requested by the Lender, in its sole discretion, pledge
any notes, stock or other instruments received in connection with each such
Permitted Investment to the Lender as additional Collateral for the Obligations.
3. Counterparts. This Agreement may be executed in any number of duplicate originals
or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original
and all taken together shall constitute but one and the same instrument. Each Borrower agrees that
Lender may rely on a telecopy of any signature of any Borrower. The Lender agrees that the
Borrowers may rely on a telecopy of this Agreement executed by the Lender.
4. Representations. Each Borrower hereby represents and warrants that:
(a) Borrowers have the power and authority to execute and deliver this Agreement and perform
their respective obligations hereunder and have taken all necessary and appropriate action to
authorize the execution, delivery and performance of this Agreement
(b) The Financing Agreement, as heretofore amended and as amended by this Agreement, and each
of the other Financing Documents remains in full force and effect, and each constitutes the valid
and legally binding obligation of each Borrower, enforceable in accordance with its terms;
(c) Except for those representations and warranties which relate to a specific date, all of
Borrowers representations and warranties contained in the Financing Agreement and the other
Financing Documents are true and correct on and as of the date of each Borrowers execution of this
Agreement and the Borrowers have performed or observed all of the terms,
covenants, conditions and obligations of the Financing Agreement and the other Financing
Documents, which are required to be performed or observed by any or all of them on or prior to the
date hereof;
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(d) No Event of Default and no event which, with notice, lapse of time or both would
constitute an Event of Default, has occurred and is continuing under the Financing Agreement or the
other Financing Documents which has not been waived in writing by the Lender; and
5. Conditions Precedent. The agreements of the Lender under this Agreement are
subject to the following conditions precedent:
(a) Payment of the fees described in Paragraph 6 of this Agreement, together with the Lenders
legal fees and expenses; and
(b) Such other information, instruments, documents, certificates and reports as the Lender may
deem necessary in its reasonable discretion.
6. Fees and Expenses. The Borrower shall pay at the time this Agreement is executed
and delivered all fees, commissions, costs, charges, taxes and other expenses incurred by the
Lender and its counsel in connection with this Agreement, including, but not limited to, reasonable
fees and expenses of the Lenders counsel and all recording fees, taxes and charges, if any.
7. Financing Documents; Governing Law; Etc. This Agreement is one of the Financing
Documents defined in the Financing Agreement and shall be governed and construed in accordance with
the laws of the State of Maryland. The headings and captions in this Agreement are for the
convenience of the parties only and are not a part of this Agreement.
8. Acknowledgments. The Borrowers acknowledge and warrant that the Lender has acted
in good faith and has conducted in a commercially reasonable manner its relationships with the
Borrowers in connection with this Agreement and generally in connection with the Financing
Documents and the Obligations, each Borrower hereby waiving and releasing any claims to the
contrary. Each Borrower hereby issues, ratifies and confirms the representations, warranties and
covenants contained in the Financing Agreement, as amended hereby or other Financing Documents.
The Borrowers agree that this Agreement is not intended to and shall not cause a novation with
respect to any or all of the Obligations
In addition, each Borrower hereby agrees to the execution and delivery of this Agreement and
the terms and provisions, covenants or agreements contained in this Agreement shall not in any
manner release, impair, lessen, modify, waive or otherwise limit the liability and obligations of
each Borrower under the terms of any of the Financing Documents, except as otherwise specifically
set forth in this Agreement.
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9. Modifications. This Agreement may not be supplemented, changed, waived,
discharged, terminated, modified or amended, except by written instrument executed by the parties.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties hereto have executed and delivered this Agreement
under their respective seals as of the day and year first written above.
Borrowers: | ||||||
WITNESS/ATTEST: | ARGAN, INC. | |||||
By: | (Seal) | |||||
Rainer Bosselmann | ||||||
Chairman of the Board and President | ||||||
WITNESS/ATTEST: | SOUTHERN MARYLAND CABLE, INC | |||||
By: | (Seal) | |||||
Arthur Trudel | ||||||
Vice President and Treasurer | ||||||
WITNESS/ATTEST: | GEMMA POWER, INC. | |||||
By: | (Seal) | |||||
Arthur Trudel | ||||||
Chief Financial Officer | ||||||
WITNESS/ATTEST: | GEMMA POWER SYSTEMS CALIFORNIA, INC. | |||||
By: | (Seal) | |||||
Arthur Trudel | ||||||
Chief Financial Officer | ||||||
WITNESS/ATTEST: | GEMMA POWER SYSTEMS, LLC | |||||
By: | (Seal) | |||||
Daniel Martin | ||||||
Manager |
WITNESS/ATTEST: | GEMMA POWER HARTFORD, LLC | |||||
By: | (Seal) | |||||
Daniel Martin | ||||||
Manager |
Lender: | ||||||
WITNESS: | BANK OF AMERICA, N.A. | |||||
By: | (Seal) | |||||
Michael J. Radcliffe | ||||||
Senior Vice President |
AGREEMENT OF GUARANTOR
The undersigned is the Guarantor under a Guaranty of Payment Agreement, dated April 26, 2010
(as amended, modified, substituted, extended and renewed from time to time, the Guaranty), in
favor of the Lender. In order to induce the Lender to enter into the foregoing Agreement, the
undersigned (a) consents to the transactions contemplated by, and agreements made by the Borrowers
under, the foregoing Agreement, and (b) ratifies, confirms and reissues the terms, conditions,
promises, covenants, grants, assignments, security agreements, agreements, representations,
warranties and provisions contained in the Guaranty.
WITNESS signature and seal of the undersigned as of the date of the Agreement.
WITNESS/ATTEST: | GEMMA RENEWABLE POWER, LLC | |||||
By: | (SEAL) | |||||
Arthur Trudel Chief Financial Officer |