EXHIBIT 10.13
FIRST AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
EFFECTIVE MARCH 31, 2003
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT IS MADE AND ENTERED
INTO EFFECTIVE AS OF THE 31ST DAY OF MARCH 2003 (THE "AMENDMENT") BY AND BETWEEN
CONGRESS FINANCIAL CORPORATION (FLORIDA), A FLORIDA CORPORATION ("LENDER"),
XXXXXXXXX MOBILE FUELING, INC., A FLORIDA CORPORATION, ("BORROWER").
WITNESSETH:
Whereas, Borrower and Lender have previously entered into that certain Loan
and Security Agreement dated September 26, 2002 (the "Loan Agreement"), the
capitalized terms used herein having the meanings set forth in the Loan
Agreement, unless otherwise specifically defined herein, and Section and
Subsection references herein used being references to Sections and Subsections
of the Loan Agreement;
Whereas, Xxxxxxxxx Realty, Inc., a Florida corporation ("Guarantor"),
executed that certain Guarantee in favor of Lender dated September 26, 2002,
under which Guarantor did make certain guarantees for the benefit of Borrower,
including, without limitation, the obligations under the Loan Agreement; and
Whereas, the parties hereto wish to amend the Loan Agreement in accordance
with the terms and provisions of, and as provided in, this Amendment.
NOW, THEREFORE, in consideration of the mutual considerations and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
The Loan Agreement is amended by:
(1) adding the following defined terms and definitions to Section 1,
effective as of March 31, 2003:
1.66 "Effective Book Net Worth" shall mean as to any Person, at
any time, on a consolidated basis for such Person and its subsidiaries
(if any), the aggregate amount equal to its Book Net Worth plus
Subordinated Debt.
1.67 "Subordinated Debt" shall mean as to any Person, at any
time, the Indebtedness of such Person and its subsidiaries which is
subordinated in right of payment to the full and final
payment of all of the Obligations on terms and conditions acceptable
to Lender.
and
(2) substituting the term "Effective Book Net Worth" in lieu of
the term "Book Net Worth" wherever the latter term appears in Section
9.17;
Except as expressly set forth above, (a) the execution and delivery of this
Amendment shall in no way constitute a modification to or a waiver of any
provision of the Loan Agreement or any of the other Financing Agreements, and
(b) the Loan Agreement, the other Financing Agreements, and all other documents,
instruments, and agreements executed and/or delivered pursuant thereto and in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed. Lender is not under any obligation to further amend or
modify any terms of the Financing Agreements. No consent to future departure(s)
from said terms, whether or not similar to that referenced herein, may be
implied from the terms hereof.
This Amendment shall become effective after it has been fully executed and
returned to us, and may be executed in one or more counterparts and by different
parties hereto in separate counterparts, each of which, when so executed, shall
be deemed to be an original and shall be binding upon all parties, their
successors and assigns, and all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF FLORIDA.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
effective as of the day and year first above written.
LENDER:
CONGRESS FINANCIAL CORPORATION (FLORIDA),
a Florida corporation
By: /S/XXX XXXXXXXXX
--------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
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ADDITIONAL SIGNATURES TO FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT:
BORROWER:
XXXXXXXXX MOBILE FUELING, INC., a Florida
corporation
By: /S/XXXXXXX X. XXXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
JOINDER OF GUARANTOR
The undersigned (1) consents and agrees to the terms and provisions of the
Amendment which are applicable to it and agrees to be bound by and comply with
such terms and provisions, and (2) acknowledges that the Guarantee is valid and
binding and remains in full force and effect (without defense, setoff or counter
claim).
GUARANTOR:
XXXXXXXXX REALTY, INC., a Florida corporation
By: /S/XXXXXXX X. XXXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
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