CONSENT AND TWELFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
CONSENT
AND
TWELFTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS CONSENT
AND TWELFTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is made and entered into as of November 21, 2007, 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, collectively with SMF and SSI, "Borrower"); and
Wachovia
Bank, National Association,
a
national banking association and successor-by-merger to Congress Financial
Corporation (Florida) ("Lender").
R
E C
I T A L S
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 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 Promissory Notes dated November 19, 2007 executed
by SMF in favor of certain investors in the aggregate principal amount of
approximately $2,000,000. Lender hereby consents to SMF's incurrence of such
Subordinated Debt provided that: (a) the proceeds of such Subordinated Debt
(in
an amount not less than $1,800,000 and not more than $2,000,000) shall be fully
funded and received by SMF on or before the close of business on the date hereof
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 such Subordinated Debt, 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 Subordination Agreements attached hereto as Exhibit
A
with
only such changes as may be disclosed to and accepted by Lender in writing
in
its discretion, and (d) such Subordinated Debt shall otherwise be subject to
the
terms of Section
9.9(e)
of the
Loan Agreement.
3. Subject
to the satisfaction of each of the conditions precedent set forth in this
Amendment, the Loan Agreement is hereby amended as follows:
(a) By
deleting in its entirety the definition of "Capital Expenditures" contained
in
Section
1.70
of the
Loan Agreement and by substituting in lieu thereof the following:
1.70 "Capital
Expenditures" shall mean expenditures made or liabilities incurred for the
acquisition of any fixed assets or improvements, replacements, substitutions
or
additions thereto which have a useful life of more than one year, including
the
total principal portion of Indebtedness under Capital Leases, but excluding
any
such expenditures made with restricted cash constituting proceeds of Excluded
Assets (including restricted cash deposited in the account described in
subclause (i) of the definition of "Excluded Assets").
(b) By
deleting the reference to "$300,000" contained in Section
2.2(e)
of the
Loan Agreement and by substituting in lieu thereof "$1,000,000".
(c) By
deleting Section
9.21
of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
9.21 Fixed
Charge Coverage Ratio.
Borrower shall not, as of any month end in which the Average Excess Availability
is less than the amount set forth below and corresponding to such month, or
as
of the end of any month during which an Event of Default occurs or exists,
on a
cumulative basis for the applicable fiscal year, permit the ratio of (a) EBITDA
to (b) Fixed Charges to be less than 1.0 to 1.0.
|
Month
|
Average
Excess Availability
|
|
February
2007
|
$1,500,000
|
|
March
2007
|
$1,500,000
|
|
April
2007
|
$1,500,000
|
|
May
2007
|
$1,500,000
|
|
June
2007
|
$2,500,000
|
|
July
2007
|
$2,500,000
|
|
August
2007
|
$2,500,000
|
|
September
2007
|
$2,500,000
|
|
October
2007
|
$1,800,000
|
|
November
2007
|
$800,000
|
|
December
2007
|
$800,000
|
|
January
2008
|
$800,000
|
|
February
2008 and
each
month thereafter
|
$1,800,000
|
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2 -
(d) By
deleting Section
9.22
of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
9.22 Excess
Availability.
Borrower shall maintain Excess Availability as determined by Lender in an amount
not less than: (a) at all times on or before November 22, 2007, $750,000, (b)
at
all times during the period beginning on November 23, 2007 and ending on
December 30, 2007, $500,000, and (c) at all times on and after December 31,
2007, $750,000.
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. Borrower
acknowledges and stipulates, to induce Lender to enter into this Amendment,
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. Borrower
represents and warrants to Lender, to induce Lender to enter into this
Amendment, 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, Borrower
hereby agrees to pay to Lender 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.
Additionally, to induce Lender to enter into this Amendment and grant the
accommodations set forth herein, Borrower agrees to pay, 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.
-
3 -
8. The
effectiveness of the amendments 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:
(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 and the other amounts
described in the preceding paragraph;
(c) Borrower
shall have received all of the proceeds of the Subordinated Debt contemplated
by
Section 2 hereof, 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 amendments 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.
[Remainder
of page intentionally left blank;
signatures
commence on following page.]
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4 -
To
the fullest extent permitted by applicable law, the parties hereto each 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 executed this Amendment as of the
day
and year first above written.
|
"LENDER":
WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/
Xxx
Xxxxxxxxx
Name:
Xxx Xxxxxxxxx
Title:
Director
|
|
|
"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
|
Twelfth
Amendment to Loan Agreement
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
|
Twelfth
Amendment to Loan Agreement
EXHIBIT
A
Form
of Subordination Agreement
(See
attached.)
