CONSENT AND SIXTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
CONSENT
AND SIXTEENTH AMENDMENT
THIS
CONSENT AND SIXTEENTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is made and entered into as of September 2, 2008, by and among
SMF
Energy Corporation,
a
Delaware corporation and successor-by-merger to Xxxxxxxxx Mobile Fueling, Inc.,
a Florida corporation ("SMF"); SMF
Services, Inc.,
a
Delaware corporation ("SSI"); H
& W Petroleum Company, Inc.,
a Texas
corporation ("H & W" and, together with SMF and SSI, collectively,
"Borrower"); and Wachovia
Bank, National Association,
a
national banking association and successor-by-merger to Congress Financial
Corporation (Florida) ("Lender").
RECITALS
A. Borrower
and Lender are parties to that certain Loan and Security Agreement dated
September 26, 2002 (as at any time amended, restated, supplemented or otherwise
modified, the "Loan Agreement"). The Obligations under (and as defined in)
the
Loan Agreement are guaranteed by Xxxxxxxxx
Realty, Inc.,
a
Florida corporation ("Guarantor").
B. The
parties hereto desire to amend the Loan Agreement upon the terms and subject
to
the conditions hereinafter set forth.
NOW,
THEREFORE, for and in consideration of Ten Dollars ($10.00) in hand paid and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby severally acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Each
capitalized term used in this Amendment, unless otherwise defined herein, shall
have the meaning ascribed to such term in the Loan Agreement.
2. Borrower
has requested that Lender consent to SMF's incurrence of unsecured Subordinated
Debt pursuant to one or more Convertible Promissory Notes dated on or around
September 2, 2008, in form and substance similar to the form of Convertible
Promissory Note attached hereto as Exhibit
A
with
only such changes as may be disclosed to and accepted by Lender in writing
in
its discretion, executed by SMF in favor of certain investors (the "September
2008 Subordinated Debt Issuance"). Lender hereby consents to the September
2008
Subordinated Debt Issuance, provided that: (a) the proceeds of such Subordinated
Debt shall be fully funded and received by SMF on or prior to December 31,
2008,
and shall be used by Borrower exclusively for working capital purposes, (b)
Lender shall have received and approved, prior to the date that such
Subordinated Debt is incurred, copies of the proposed documents intended to
evidence the September 2008 Subordinated Debt Issuance, with true, correct
and
complete copies of such executed documents to be furnished to Lender promptly
after execution, (c) such Subordinated Debt shall be subject and subordinate
to
the payment of the Obligations pursuant to Subordination Agreements in form
and
substance similar to the form of Subordination Agreement attached hereto as
Exhibit
B
with
only such changes as may be disclosed to and accepted by Lender in writing
in
its discretion, (d) such Subordinated Debt shall otherwise be subject to the
terms of Section
9.9(e)
of the
Loan Agreement, and (e) the total aggregate principal amount Borrower is allowed
to receive under the September 2008 Subordinated Debt Issuance and under the
New
Preferred Stock Issuance, as contemplated by (and as defined in) that certain
consent letter dated as of August 15, 2008, by Lender to Borrower (the "August
2008 Consent Letter"), cannot exceed $1,500,000.
3. Subject
to the satisfaction of each of the conditions precedent set forth in this
Amendment, the Loan Agreement is hereby amended by deleting Section
1.37
of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
"Interest
Rate" shall mean, as to Prime Rate Loans, the rate of two and three-quarters
percent (2.75%) per annum in excess of the Prime Rate and, as to Eurodollar
Rate
Loans, the rate of five and one-half percent (5.50%) 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 five and three-quarters percent (5.75%) per annum in
excess of the Prime Rate as to Prime Rate Loans and the rate of eight and
one-half percent (8.50%) 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).
4. Borrower
hereby ratifies and reaffirms the Obligations, each of the Financing Agreements
and all of Borrower's covenants, duties, indebtedness and liabilities under
the
Financing Agreements.
5. To
induce
Lender to enter into this Amendment and to grant the accommodations set forth
herein, Borrower hereby acknowledges and stipulates that the Loan Agreement
and
the other Financing Agreements executed by Borrower are legal, valid and binding
obligations of Borrower that are enforceable against Borrower in accordance
with
the terms thereof; all of the Obligations are owing and payable without defense,
offset or counterclaim (and to the extent there exists any such defense, offset
or counterclaim on the date hereof, the same is hereby waived by Borrower);
and
the security interests and liens granted by Borrower in favor of Lender are
duly
perfected, first priority security interests and liens.
6. To
induce
Lender to enter into this Amendment and to grant the accommodations set forth
herein, Borrower hereby represents and warrants to Lender that no Default or
Event of Default exists on the date hereof; the execution, delivery and
performance of this Amendment have been duly authorized by all requisite
corporate action on the part of Borrower and this Amendment has been duly
executed and delivered by Borrower; and except as may have been disclosed in
writing by Borrower to Lender prior to the date hereof, all
of
the representations and warranties made by Borrower in the Loan Agreement are
true and correct on and as of the date hereof.
7. In
consideration of Lender's willingness to enter into this Amendment and to grant
the accommodations set forth herein, Borrower hereby agrees to pay to Lender
(i)
a nonrefundable amendment fee (the "Amendment Fee") in the amount of five
thousand dollars ($5,000) in immediately available funds on the date hereof,
which shall be fully earned on the date hereof, and (ii) on
demand,
all
costs and expenses incurred by Lender in connection with the preparation,
negotiation and execution of this Amendment and any other Financing Documents
executed pursuant hereto and any and all amendments, modifications, and
supplements thereto, including, without limitation, the costs and fees of
Lender's legal counsel and any taxes or expenses associated with or incurred
in
connection with any instrument or agreement referred to herein or contemplated
hereby.
8. The
effectiveness of the consent and amendment to the Loan Agreement set forth
in
this Amendment is subject to the satisfaction of each of the following
conditions precedent, in each case in form and substance satisfactory to
Lender:
-2-
(a) Lender
shall have received duly executed and delivered counterparts of this Amendment
from Borrower and Guarantor;
(b) Lender
shall have received full payment of the Amendment Fee;
(c) Borrower
shall have received all of the proceeds of the Subordinated Debt contemplated
by
Section
2
of this
Amendment, and Lender shall have received a fully-executed original counterpart
of each Subordination Agreement contemplated by Section
2
of this
Amendment with respect to such Subordinated Debt; and
(d) no
Default or Event of Default shall exist or occur on the date
hereof.
9. Upon
the
effectiveness of the consent and amendment set forth in this Amendment, each
reference in the Loan Agreement to "this Agreement," "hereunder," or words
of
like import shall mean and be a reference to the Loan Agreement, as amended
by
this Amendment.
10. This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
11. This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of Florida, without giving effect to its conflict of laws
principles.
12. Except
as
otherwise expressly provided in this Amendment, nothing herein shall be deemed
to amend or modify any provision of the Loan Agreement or any of the other
Financing Agreements, each of which shall remain in full force and effect.
This
Amendment is not intended to be, nor shall it be construed to create, a novation
or accord and satisfaction, and the Loan Agreement as herein modified shall
continue in full force and effect.
13. This
Amendment may be executed in any number of counterparts and by different parties
to this Amendment on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one
and
the same agreement. Any manually-executed signature page delivered by a party
by
facsimile or other electronic transmission shall be deemed to be an original
signature page hereto.
14. To
induce Lender to enter into this Amendment and to grant the accommodations
set
forth herein, Borrower
hereby releases and forever discharges 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, whether liquidated or unliquidated,
contingent or fixed, determined or undetermined, at law or in equity, which
Borrower had, now has, or may at any time 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 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 acknowledges that this
provision is a material inducement for Lender entering into this Amendment
and
that this provision shall survive the payment in full of all Obligations and
the
termination of all Financing Agreements.
-3-
To
the fullest extent permitted by applicable law, each party hereto hereby waives
the right to trial by jury in any action, suit, counterclaim or proceeding
arising out of or related to this Amendment.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their duly authorized officers as of the day and year first
above written.
"LENDER":
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/
Xxx
Xxxxxxxxx
Name:
Xxx Xxxxxxxxx
Title:
Director
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"BORROWER":
SMF
ENERGY CORPORATION
By:
/s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President & Chief Financial Officer
SMF
SERVICES, INC.
By:
/s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President & Chief Financial Officer
H
& W PETROLEUM COMPANY, INC.
By:
/s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President & Chief Financial Officer
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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 Amendment or any future amendment to the
Loan
Agreement but, nevertheless, consents to all terms and provisions of the
foregoing Amendment that are applicable to it, and agrees to be bound by and
comply with such terms and provisions, and (3) acknowledges and confirms that
its guaranty in favor of Lender executed in connection with the Loan 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 guaranty in connection with the Loan
Agreement, as modified by the foregoing Amendment.
"GUARANTOR":
XXXXXXXXX
REALTY, INC.,
a
Florida corporation
By:
/s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President & Chief Financial
Officer
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EXHIBIT
A
TO
CONSENT
AND SIXTEENTH AMENDMENT
Form
of Convertible Promissory Note
(See
Attached)
EXHIBIT
B
TO
CONSENT
AND SIXTEENTH AMENDMENT
Form
of Subordination Agreement
(See
Attached)