SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
[EXECUTION]
SIXTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Sixth Amendment"),
effective as of the 31st
day of
March, 2006, by and among Xxxxxxxxx Mobile Fueling, Inc., a Florida corporation
(hereinafter referred to as "Fueling"), SMF Services, Inc., a Delaware
corporation (hereinafter referred to as "Services"), H & W Petroleum
Company, Inc., a Texas corporation (hereinafter referred to as "H & W" and,
collectively with Fueling and Services, as "Borrower") and Wachovia Bank,
National Association, successor by merger to Congress Financial Corporation
(Florida) (hereinafter referred to as "Lender").
RECITALS
A. On
September 26, 2002, Fueling and Lender entered into a Loan and Security
Agreement (the "Agreement"), establishing a revolving line of credit (the
"Revolving Loans") by Lender in favor of Fueling.
B. Fueling
and Lender executed a Consent and First Amendment to Loan and Security Agreement
dated as of March 31, 2003 (the "First Amendment"), consenting to certain
subordinated debt of Fueling and modifying certain defined terms in the
Agreement.
C. Fueling
and Lender executed a Second Amendment to Loan and Security Agreement dated
as
of August 29, 2003 (the “Second Amendment”), (1) permitting Fueling to incur
certain additional secured Indebtedness, and (2) releasing Lender's security
interest in the patents (including the related trade names utilized in such
patents) constituting a portion of the Collateral, subject to the terms and
conditions stated therein.
D. Fueling
and Lender executed a Third Amendment to Loan and Security Agreement dated
as of
August 30, 2003 (the "Third Amendment"), modifying certain terms of the
Agreement in order to reflect that the amount of the additional secured
Indebtedness contemplated by the Second Amendment exceeded the actual amount
thereof.
E. Fueling,
Services and Lender executed a Fourth Amendment to Loan and Security Agreement
dated as of February 18, 2005 (the "Fourth Amendment"), adding Services as
an
additional borrower under the Revolving Loans, extending the term of the
Agreement, and modifying the applicable Interest Rate, the unused line fee
and
certain covenants of the Agreement.
F. Fueling,
Services, H & W and Lender executed a Fifth Amendment to Loan and Security
Agreement dated as of October 1, 2005 (the "Fifth Amendment"), adding H & W
as an additional borrower under the Revolving Loans, extending the term of
the
Agreement, increasing the Maximum Credit amount for the Revolving Loans, adding
certain inventory to the Borrowing Base, decreasing the applicable Interest
Rate, and modifying certain covenants and other terms of the
Agreement.
G. Borrower
and Xxxxxxxxx Realty, Inc., a Florida corporation, have requested that,
effective March 31, 2006, Lender (1) add (a) an Interest Rate option based
on
the London interbank offered rate, and (b) certain leased Vehicles and
Equipment to the Excluded Assets from the Collateral, and (2) amend the Capital
Expenditures covenant of the Agreement, and Lender is agreeable to same, subject
to the terms and conditions hereinafter set forth.
NOW
THEREFORE, in consideration of the mutual covenants of the parties hereto,
and
for other good and valuable consideration, it is agreed as follows:
1. The
foregoing statements are true and correct and are incorporated herein as if
set
forth in full.
2. Unless
otherwise defined herein, all terms used herein shall have the definitions
specified in the Agreement, as modified by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment;
all references hereinafter made to the Agreement to include the modifications
thereto effectuated pursuant to the First Amendment, the Second Amendment,
the
Third Amendment, the Fourth Amendment and the Fifth Amendment.
3. Borrower
confirms and acknowledges that the balance due Lender under the Revolving Loans
as of the close of business on March 31, 2006 was the principal amount of
$13,346,942.75 plus accrued interest since the date last paid, all free and
clear of any defense, set-off or counterclaim.
4. The
Agreement is hereby modified as follows (all references to Sections and
Subsections being the applicable Sections and Subsections of the
Agreement):
(a) Sections
1.7, 1.29, 1.37, 1.49 and 1.69 are amended and restated in their entirety to
read as follows:
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1.7
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"Business
Day" shall mean any day other than a Saturday, Sunday, or other day
on
which commercial banks are authorized or required to close under
the laws
of the State of Florida or the State of North Carolina, and a day
on which
Lender is open for the transaction of business, except that if a
determination of a Business Day shall relate to any Eurodollar Rate
Loans,
the term Business Day shall also exclude any day on which banks are
closed
for dealings in dollar deposits in the London interbank market or
other
applicable Eurodollar Rate market.
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1.29
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"Financing
Agreements" shall mean, collectively, this Agreement and all notes,
guarantees, security agreements and other agreements, documents and
instruments now or at any time hereafter executed and/or delivered
by
Borrower or any Obligor in connection with this Agreement, except
Swap
Agreements.
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| 1.37 |
“Interest Rate” shall mean, as to Prime
Rate Loans, a rate equal to three-quarters (.75%) percent per annum
in
excess of the Prime Rate and, as to Eurodollar Rate Loans, a rate
of three
and one-half (3.5%) percent per annum in excess of the Adjusted Eurodollar
Rate (based on the London Interbank Offered Rate applicable for the
Interest Period selected by Borrower as in effect two (2) Business
Days
prior to the commencement of the Interest Period,
whether such rate is higher or lower than any rate previously quoted
to
Borrower); provided,
that,
notwithstanding anything to the contrary contained herein, the Interest
Rate shall mean the rate of three and three-quarters (3.75%) percent
per
annum in excess of the Prime Rate as to Prime Rate Loans and the
rate of
six and one-half (6.5%) percent per annum in excess of the Adjusted
Eurodollar Rate as to Eurodollar Rate Loans, at Lender's option,
without
notice, (a) either (i) for the period on and after the date of
termination or non-renewal hereof until such time as all Obligations
are
indefeasibly paid and satisfied in full in immediately available
funds, or
(ii) for the period from and after the date of the occurrence of any
Event of Default, and for so long as such Event of Default is continuing
as determined by Lender and (b) on the Revolving Loans at any time
outstanding in excess of the Borrowing Base or the Revolving Loan
Limit
(whether or not such excess(es) arise or are made with or without
Lender's
knowledge or consent and whether made before or after an Event of
Default).
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1
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1.49
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"Obligations"
means all obligations now or hereafter owed to Lender or any Affiliate
of
Lender by Borrower, whether related or unrelated to the Loans, this
Agreement or the Financing Agreements, including, without limitation,
amounts owed or to be owed under the terms of the Financing Agreements,
or
arising out of the transactions described therein, including, without
limitation, the Loans, any Indebtedness arising out of or relating
to any
deposit accounts of Borrower at Lender or any Affiliate of Lender
or any
cash management services or other products or services, including
merchant
card and ACH transfer services, letter of credit obligations for
outstanding Letter of Credit Accommodations, obligations for banker's
acceptances issued for the account of Borrower or its Subsidiaries,
amounts paid by Lender under Letter of Credit Accommodations or drafts
accepted by Lender for the account of Borrower or its Subsidiaries,
together with all interest accruing thereon, including any interest
on
pre-petition Indebtedness accruing after bankruptcy, all existing
and
future obligations under any Swap Agreements between Lender or any
Affiliate of Lender and Borrower whenever executed (including obligations
under Swap Agreements entered into prior to any transfer or sale
of
Lender's interests hereunder if Lender ceases to be a party hereto)
, all
fees, all costs of collection, attorneys' fees and expenses of or
advances
by Lender which Lender pays or incurs in discharge of obligations
of
Borrower or to inspect, repossess, protect, preserve, store or dispose
of
any Collateral, whether such amounts are now due or hereafter become
due,
direct or indirect and whether such amounts due are from time to
time
reduced or entirely extinguished and thereafter reincurred.
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1.69
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“Excluded
Assets” shall mean (i) the Vehicles of Second Borrower acquired from Shank
C&E Investments, L.L.C. (“Shank”) on February 18, 2005 and
securing the January 2005 Indebtedness (hereinafter defined), including
future additions, parts, accessories, attachments, substitutions,
repairs,
related intangibles and improvements and replacements to or of any
such
Vehicle, (ii) the Equipment
of Second Borrower acquired from Shank on February 18, 2005 and securing
the January 2005 Indebtedness, including future additions, parts,
accessories, attachments, substitutions, repairs, related intangibles
and
improvements and replacements to or of any such Equipment, (iii)
the
intangible assets of Second Borrower acquired from Shank on February
18,
2005, securing the January 2005 Indebtedness and listed on Schedule
A
hereto, (iv) the Vehicles owned or leased by New Borrower on October
1,
2005 and securing the September 2005 Indebtedness (hereinafter defined),
including future additions, parts, accessories, attachments,
substitutions, repairs, related intangibles and improvements and
replacements to or of any such Vehicle, and (v) the Equipment owned
or
leased by New Borrower on October 1, 2005 and securing the September
2005
Indebtedness, including future additions, parts, accessories, attachments,
substitutions, repairs, related intangibles and improvements and
replacements to or of any such
Equipment.
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2
(b) The
following defined terms and definitions are added to Section 1:
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1.74
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“Adjusted
Eurodollar Rate” shall mean, with respect to each Interest Period for any
Eurodollar Rate Loan comprising part of the same borrowing (including
conversions, extensions and renewals), the rate per annum determined
by
dividing (a) the London Interbank Offered Rate for such Interest
Period by (b) a percentage equal to: (i) one (1) minus
(ii) the Reserve Percentage. For purposes hereof, “Reserve
Percentage” shall mean for any day, that percentage (expressed as a
decimal) which is in effect from time to time under Regulation D
of the
Board of Governors of the Federal Reserve System (or any successor),
as
such regulation may be amended from time to time or any successor
regulation, as the maximum reserve requirement (including, without
limitation, any basic, supplemental, emergency, special, or marginal
reserves) applicable with respect to Eurocurrency liabilities as
that term
is defined in Regulation D (or against any other category of liabilities
that includes deposits by reference to which the interest rate of
Eurodollar Loans is determined), whether or not Lender has any
Eurocurrency liabilities subject to such reserve requirement at that
time.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities
and as such shall be deemed subject to reserve requirements without
benefits of credits for proration, exceptions or offsets that may
be
available from time to time to Lender. The Adjusted Eurodollar Rate
shall
be adjusted automatically on and as of the effective date of any
change in
the Reserve Percentage.
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1.75
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“Eurodollar
Rate Loans” shall mean any Loans or portion thereof on which interest is
payable based on the Adjusted Eurodollar Rate in accordance with
the terms
hereof.
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1.77
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“London
Interbank Offered Rate” shall mean, with respect to any Eurodollar Loan
for the Interest Period applicable thereto, the rate of interest
per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on
Telerate Page 3750 (or any successor page) as the London interbank
offered
rate for deposits in U.S. Dollars at approximately 11:00 A.M. (London
time) two (2) Business Days prior to the first day of such Interest
Period
for a term comparable to such Interest Period; provided, that, if
more
than one rate is specified on Telerate Page 3750, the applicable
rate
shall be the arithmetic mean of all such rates. If, for any reason,
such
rate is not available, the term “London Interbank Offered Rate” shall
mean, with respect to any Eurodollar Loan for the Interest Period
applicable thereto, the rate of interest per annum (rounded upwards,
if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO
Page as the London interbank offered rate for deposits in Dollars
at
approximately 11:00 A.M. (London time) two (2) Business Days prior
to the
first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on
Reuters
Screen LIBO Page, the applicable rate shall be the arithmetic mean
of all
such rates.
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3
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1.78
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“Prime
Rate Loans” shall mean any Loans or portion thereof on which interest is
payable based on the Prime Rate in accordance with the terms
thereof.
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1.79
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"Swap
Agreement" has the meaning for swap agreement as defined in 11 U.S.C.
§
101, as in effect from time to time, or any successor statute, and
includes, without limitation, any rate swap agreement, forward rate
agreement, commodity swap, commodity option, interest rate option,
forward
foreign exchange agreement, spot foreign exchange agreement, rate
cap
agreement, rate floor agreement, rate collar agreement, currency
swap
agreement, cross-currency rate swap agreement, currency option and
any
other similar agreement.
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(c) Section
3.1 is amended and restated in its entirety to read as follows:
3.1 Interest
(a) Borrower
shall pay to Lender interest on the outstanding principal amount of the Loans
at
the Interest Rate. All interest accruing hereunder on and after the date of
any
Event of Default or termination hereof shall be payable on demand.
(b) Borrower
may from time to time request Eurodollar Rate Loans or may request that Prime
Rate Loans be converted to Eurodollar Rate Loans or that any existing Eurodollar
Rate Loans continue for an additional Interest Period. Such request from
Borrower shall specify the amount of the Eurodollar Rate Loans or the amount
of
the Prime Rate Loans to be converted to Eurodollar Rate Loans or the amount
of
the Eurodollar Rate Loans to be continued (subject to the limits set forth
below) and the Interest Period to be applicable to such Eurodollar Rate Loans.
Subject to the terms and conditions contained herein, three (3) Business Days
after receipt by Lender of such a request from Borrower, such Eurodollar Rate
Loans shall be made or Prime Rate Loans shall be converted to Eurodollar Rate
Loans or such Eurodollar Rate Loans shall continue, as the case may be,
provided, that, (1)
no
Default or Event of Default shall exist or have occurred and be continuing,
(2)
no party
hereto shall have sent any notice of termination of this Agreement, (3)
Borrower
shall have complied with such customary procedures as are established by Lender
and specified by Lender to Borrower from time to time for requests by Borrower
for Eurodollar Rate Loans, (4)
no more
than four (4) Interest Periods may be in effect at any one time, (5)
the
aggregate amount of the Eurodollar Rate Loans must be in an amount not less
than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, (6)
the
maximum amount of the Eurodollar Rate Loans at any time requested by Borrower
shall not exceed the amount equal to eighty (80%) percent of the lowest
principal amount of the Revolving Loans which it is anticipated will be
outstanding during the applicable Interest Period, as determined by Lender
(but
with no obligation of Lender to make such Loans), and (7)
Lender
shall have determined that the Interest Period or Adjusted Eurodollar Rate
is
available to Lender through the Reference Bank and can be readily determined
as
of the date of the request for such Eurodollar Rate Loan by Borrower. Any
request by Borrower for Eurodollar Rate Loans or to convert Prime Rate Loans
to
Eurodollar Rate Loans or to continue any existing Eurodollar Rate Loans shall
be
irrevocable. Notwithstanding anything to the contrary contained herein, Lender
and Reference Bank shall not be required to purchase United States Dollar
deposits in the London interbank market or other applicable Eurodollar Rate
market to fund any Eurodollar Rate Loans, but the provisions hereof shall be
deemed to apply as if Lender and Reference Bank had purchased such deposits
to
fund the Eurodollar Rate Loans.
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(c) Any
Eurodollar Rate Loans shall automatically convert to Prime Rate Loans upon
the
last day of the applicable Interest Period, unless Lender has received and
approved a request to continue such Eurodollar Rate Loan at least three (3)
Business Days prior to such last day in accordance with the terms hereof. Any
Eurodollar Rate Loans shall, at Lender's option, upon notice by Lender to
Borrower, be subsequently converted to Prime Rate Loans in the event that this
Agreement shall terminate or not be renewed. Borrower shall pay to Lender,
upon
demand by Lender (or Lender may, at its option, charge any loan account of
Borrower) any amounts required to compensate Lender, the Reference Bank or
any
participant with Lender for any loss (including loss of anticipated profits),
cost or expense incurred by such person, as a result of the conversion of
Eurodollar Rate Loans to Prime Rate Loans pursuant to any of the
foregoing.
(d) Interest
shall be payable by Borrower to Lender monthly in arrears not later than the
first day of each calendar month and shall be calculated on the basis of a
three
hundred sixty (360) day year and actual days elapsed. The interest rate on
non-contingent Obligations (other than Eurodollar Rate Loans) shall increase
or
decrease by an amount equal to each increase or decrease in the Prime Rate
effective on the first day of the month after any change in such Prime Rate
is
announced based on the Prime Rate in effect on the last day of the month in
which any such change occurs. In no event shall charges constituting interest
payable by Borrower to Lender exceed the maximum amount or the rate permitted
under any applicable law or regulation, and if any such part or provision of
this Agreement is in contravention of any such law or regulation, such part
or
provision shall be deemed amended to conform thereto.
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(d) Section
3.5, reading as follows, is added immediately after Section 3.4:
3.5 Changes
in Laws and Increased Costs of Loans.
(a) If
after
the date hereof, either (i) any change in, or in the interpretation of, any
law
or regulation is introduced, including, without limitation, with respect to
reserve requirements, applicable to Lender or any banking or financial
institution from whom Lender borrows funds or obtains credit (a “Funding Bank”),
or (ii) a Funding Bank or Lender complies with any future guideline or request
from any central bank or other Governmental Authority or (iii) a Funding Bank
or
Lender determines that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof has or would have the effect described below, or a Funding Bank or
Lender complies with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank
or
comparable agency, and in the case of any event set forth in this clause (iii),
such adoption, change or compliance has or would have the direct or indirect
effect of reducing the rate of return on Lender’s capital as a consequence of
its obligations hereunder to a level below that which Lender could have achieved
but for such adoption, change or compliance (taking into consideration the
Funding Bank’s or Lender’s policies with respect to capital adequacy) by an
amount deemed by Lender to be material, and the result of any of the foregoing
events described in clauses (i), (ii) or (iii) is or results in an increase
in
the cost to Lender of funding or maintaining the Loans or the Letter of Credit
Accommodations, then Borrower shall from time to time upon demand by Lender
pay
to Lender additional amounts sufficient to indemnify Lender against such
increased cost on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified). A certificate
as
to the amount of such increased cost shall be submitted to Borrower by Lender
and shall be conclusive, absent manifest error.
(b) If
prior
to the first day of any Interest Period, (i) Lender shall have determined in
good faith (which determination shall be conclusive and binding upon Borrower)
that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate
for
such Interest Period, (ii) Lender determines that the Adjusted Eurodollar Rate
determined or to be determined for such Interest Period will not adequately
and
fairly reflect the cost to Lender of making or maintaining Eurodollar Rate
Loans
during such Interest Period, or (iii) Dollar deposits in the principal amounts
of the Eurodollar Rate Loans to which such Interest Period is to be applicable
are not generally available in the London interbank market, Lender shall give
telecopy or telephonic notice thereof to Borrower as soon as practicable
thereafter, and will also give prompt written notice to Borrower when such
conditions no longer exist. If such notice is given (A) any Eurodollar Rate
Loans requested to be made on the first day of such Interest Period shall be
made as Prime Rate Loans, (B) any Loans that were to have been converted on
the
first day of such Interest Period to or continued as Eurodollar Rate Loans
shall
be converted to or continued as Prime Rate Loans and (C) each outstanding
Eurodollar Rate Loan shall be converted, on the last day of the then-current
Interest Period thereof, to Prime Rate Loans. Until such notice has been
withdrawn by Lender, no further Eurodollar Rate Loans shall be made or continued
as such, nor shall Borrower have the right to convert Prime Rate Loans to
Eurodollar Rate Loans.
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(c) Notwithstanding
any other provision herein, if the adoption of or any change in any law, treaty,
rule or regulation or final, non-appealable determination of an arbitrator
or a
court or other Governmental Authority or in the interpretation or application
thereof occurring after the date hereof shall make it unlawful for Lender to
make or maintain Eurodollar Rate Loans as contemplated by this Agreement, (i)
Lender shall promptly give written notice of such circumstances to Borrower
(which notice shall be withdrawn whenever such circumstances no longer exist),
(ii) the commitment of Lender hereunder to make Eurodollar Rate Loans, continue
Eurodollar Rate Loans as such and convert Prime Rate Loans to Eurodollar Rate
Loans shall forthwith be canceled and, until such time as it shall no longer
be
unlawful for Lender to make or maintain Eurodollar Rate Loans, Lender shall
then
have a commitment only to make a Prime Rate Loan when a Eurodollar Rate Loan
is
requested and (iii) Loans then outstanding as Eurodollar Rate Loans, if
any, shall be converted automatically to Prime Rate Loans on the respective
last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a Eurodollar
Rate Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, Borrower shall pay to such Lender such amounts,
if
any, as may be required pursuant to Section 3.5(d) below.
(d) Borrower
shall indemnify Lender and to hold Lender harmless from any loss or expense
which Lender may sustain or incur as a consequence of (i) default by Borrower
in
making a borrowing of, conversion into or extension of Eurodollar Rate Loans
after Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (ii) default by Borrower in making any
prepayment of a Eurodollar Rate Loan after Borrower has given a notice thereof
in accordance with the provisions of this Agreement, and (iii) the making of
a
prepayment of Eurodollar Rate Loans on a day which is not the last day of an
Interest Period with respect thereto. With respect to Eurodollar Rate Loans,
such indemnification may include an amount equal to the excess, if any, of
(A)
the amount of interest which would have accrued on the amount so prepaid, or
not
so borrowed, converted or extended, for the period from the date of such
prepayment or of such failure to borrow, convert or extend to the last day
of
the applicable Interest Period (or, in the case of a failure to borrow, convert
or extend, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Eurodollar
Rate Loans provided for herein over (B) the amount of interest (as reasonably
determined by such Lender) which would have accrued to Lender on such amount
by
placing such amount on deposit for a comparable period with leading banks in
the
interbank Eurodollar market. This covenant shall survive the termination or
non-renewal of this Agreement and the payment of the Obligations.
(e) The
third
sentence of Subsection 6.4(a) is amended and restated in its entirety to read
as
follows:
Notwithstanding
anything to the contrary contained in this Agreement, (i) unless so directed
by
Borrower, or unless a Default or an Event of Default shall exist or have
occurred and be continuing, Lender shall not apply any payments which it
receives to any Eurodollar Rate Loans, except (A) on the expiration date of
the
Interest Period applicable to any such Eurodollar Rate Loans, or (B) in the
event that there are no outstanding Prime Rate Loans and (ii) to the extent
Borrower uses any proceeds of the Loans or Letter of Credit Accommodations
to
acquire rights in or the use of any Collateral or to repay any Indebtedness
used
to acquire rights in or the use of any Collateral, payments in respect of the
Obligations shall be deemed applied first to the Obligations arising from Loans
and Letter of Credit Accommodations that were not used for such purposes and
second to the Obligations arising from Loans and Letters of Credit
Accommodations the proceeds of which were used to acquire rights in or the
use
of any Collateral in the chronological order in which Borrower acquired such
rights in or the use of such Collateral.
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(f) Section
9.17 is amended and restated in its entirety to read as follows:
9.17 Capital
Expenditures.
Borrower shall not make Capital Expenditures which in the aggregate exceed
$3,200,000 during fiscal year 2006, $1,500,000 during fiscal year 2007 or
$750,000 during any fiscal year thereafter.
5. Each
and
every reference to the Agreement in the other Financing Agreements shall be
deemed to refer to the Agreement, as modified by this Sixth
Amendment.
6. Borrower
represents and warrants to Lender that, except as has been otherwise disclosed
to Lender in writing, the representations and warranties contained in the
Agreement and all related loan documentation are true and correct on and as
of
the date hereof (with the same force and effect as if made on and as of the
date
hereof, other than representations and warranties made as of a specific date
which shall be deemed made as of such date) and with respect to this Sixth
Amendment and the related documentation referenced herein, and that no Default
or Event of Default shall have occurred and be continuing. Specifically, (a)
Fueling represents and warrants that its Articles of Incorporation and Bylaws,
certified on September 26, 2002 were not amended on or subsequent to their
aforesaid certification date, other than the July 23, 2003 amendment to Articles
of Incorporation increasing the number of authorized shares of common stock
from
20,000,000 to 50,000,000 shares, (b) Services represents and warrants that
its
Certificate of Incorporation and Bylaws, certified on February 18, 2005 were
not
amended on or subsequent to their aforesaid certification date, and (c) H &
W represents and warrants that its Articles of Incorporation and Bylaws,
certified on October 1, 2005 were not amended on nor subsequent to their
aforesaid certification date.
7. Borrower
acknowledges and confirms that all Collateral furnished in connection with
the
Agreement, except patents, continue to secure the Obligations and indebtedness
thereunder, as hereby modified.
8. Borrower
and Obligor each hereby release and forever discharge Lender and each and every
one of its directors, officers, employees, representatives, legal counsel,
agents, parents, subsidiaries and affiliates, and persons employed or engaged
by
them, whether past or present (hereinafter collectively referred to as the
"Lender Releasees"), of and from all actions, agreements, damages, judgments,
claims, counterclaims, and demands whatsoever, liquidated or unliquidated,
contingent or fixed, determined or undetermined, at law or in equity, which
Borrower or Obligor, had, now has, or may have against the Lender Releasees,
or
any of them, for, upon or by reason of any matter, cause or thing whatsoever
to
the date of this Sixth Amendment, whether arising out of, related to or
pertaining to the Obligations, the Financing Agreements, or otherwise,
including, without limitation, the negotiation, closing, administration, and
funding of the Obligations or the Financing Agreements. Borrower and Obligor
each acknowledges that this provision is a material inducement for Lender
entering into this Sixth Amendment and this provision shall survive payment
in
full of all Obligations and termination of all Financing
Agreements.
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9. Borrower
shall pay all out-of-pocket expenses incurred by Lender in connection with
the
preparation for and closing of the transaction contemplated under this Sixth
Amendment, including, without limitation, the fees and expenses of special
counsel for Lender. In addition, Borrower shall pay any and all taxes (together
with interest and penalties, if any, applicable thereto) and fees, including,
without limitation, documentary stamp taxes, now or hereafter required in
connection with the execution and delivery of the Agreement, as hereby amended,
and all related documents, instruments and agreements.
10. Except
as
expressly modified herein, all terms and provisions of the Agreement, and all
other documents, instruments and agreements executed and/or delivered in
connection with the Agreement, shall remain unchanged and in full force and
effect; provided,
however,
in the
event of any inconsistency, incongruity or conflict between the terms of the
Agreement and the terms of this Sixth Amendment, the terms of this Sixth
Amendment shall govern and control. No consent of Lender hereunder shall operate
as a waiver or continuing consent with respect to any instance or event other
than those specified herein. Neither this Sixth Amendment nor
any
earlier waiver or amendment of the Agreement will constitute a novation or
have
the effect of discharging any liability or obligation evidenced by the Agreement
or any related document. This Sixth Amendment shall not be deemed to prejudice
any rights or remedies which Lender may now have or may have in the future
under
or in connection with the Agreement or the Financing Agreements or any of the
instruments or agreements referred to therein, as the same may be amended,
restated or otherwise modified. This Sixth Amendment is part of the Agreement
and constitutes a Financing Agreement thereunder.
11. All
covenants, agreements, representations and warranties contained herein shall
be
binding upon and inure to the benefit of the parties hereto, their respective
successors and assigns, except that Borrower shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent
of
Lender.
12. This
Sixth Amendment may be executed in any number of 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.
13. This
Sixth Amendment shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida, without giving effect to
its
conflict of law principles.
14. LENDER,
BORROWER AND OBLIGOR EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SIXTH AMENDMENT
OR
THE AGREEMENT AND ANY AGREEMENT, DOCUMENT OR INSTRUMENT EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER ENTERING INTO THIS SIXTH AMENDMENT.
9
IN
WITNESS WHEREOF, the parties hereto have executed this Sixth Amendment the
26th
day of September 2006, effective as of the 31st
day of
March, 2006.
| BORROWER: | ||
| XXXXXXXXX MOBILE FUELING, INC., a Florida corporation | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: President and Chief Executive Officer | ||
| SMF SERVICES, INC., a Delaware corporation | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: President and Chief Executive Officer | ||
| H & W PETROLEUM COMPANY, INC., a Texas corporation | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: Chief Executive Officer | ||
| LENDER: | ||
|
WACHOVIA
BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO CONGRESS FINANCIAL
CORPORATION (FLORIDA)
|
||
| |
|
|
| By: | /s/ Xxx Xxxxxxxxx | |
|
Name: Xxx Xxxxxxxxx |
||
| Title: Vice President | ||
10
[EXECUTION]
JOINDER
The
undersigned: (1) acknowledges and confirms that Lender's loans, advances
and credit to Borrower have been, are and will continue to be of direct economic
benefit to the undersigned, (2) acknowledges that it has previously waived
any right to consent to the foregoing or any future amendment to the Agreement
but, nevertheless, consents to all terms and provisions of the Sixth Amendment
which are applicable to it, and agrees to be bound by and comply with such
terms
and provisions, and (3) acknowledges and confirms that its guarantee in
favor of Lender executed in connection with the Agreement is valid and binding
and remains in full force and effect in accordance with its terms (without
defense, setoff or counterclaim against enforcement thereof), which include,
without limitation, its guarantee in connection with the Agreement, as modified
by the Sixth Amendment.
| GUARANTOR: | ||
| XXXXXXXXX REALTY, INC., a Florida corporation | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: President and Chief Executive Officer | ||
