SEVENTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.48
SEVENTEENTH
AMENDMENT
THIS
SEVENTEENTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is made and entered into on September 17, 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").
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 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. Subject
to the satisfaction of each of the conditions precedent set forth in this
Amendment, the Loan Agreement is hereby amended, effective as of September
1,
2008, as follows:
(a) By
deleting Section
1.37
of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
"Interest
Rate" shall mean:
(A) during
the period commencing on September 1, 2008, and ending on September 30, 2008,
as
to Prime Rate Loans, the rate of three-quarters percent (0.75%) per annum in
excess of the Prime Rate; and
(B) during
the period commencing on October 1, 2008, and ending on the last day of the
month in which Lender receives and reviews the monthly financial statements
and
compliance certificate required to be delivered by Borrower pursuant to Section
9.6(a) of this Agreement for the month ending on September 30, 2008, as to
all
Loans, the rate of two and three-quarters percent (2.75%) per annum in excess
of
the Prime Rate; and
(C) commencing
on the first day of the month immediately following the month in which Lender
receives and reviews the monthly financial statements and compliance certificate
required to be delivered by Borrower pursuant to Section 9.6(a) of this
Agreement for the month ending on September 30, 2008, as to all Loans, the
rate
of interest determined on a quarterly basis according to the performance of
Borrower as measured by the ratio of EBITDA to Fixed Charges, for the period
of
four (4) fiscal quarters ended on the last day of the fiscal quarter immediately
preceding the applicable Adjustment Date (as defined below)(except that, for
the
fiscal quarters ending on September 30, 2008, and December 31, 2008, the
Borrower's ratio of EBITDA to Fixed Charges for purposes of this definition
shall be calculated for the periods beginning on February 1, 2008, and ending
on
the applicable date), as follows:
Ratio
of EBITDA to
Fixed
Charges
|
Interest
Rate
|
Less
than 1.0 to 1.0
|
Two
and three-quarters percent (2.75%) per annum in excess of the Prime
Rate
|
Greater
than or equal to 1.0 to 1.0, but less than 1.5 to 1.0
|
One
and three-quarters percent (1.75%) per annum in excess of the Prime
Rate
|
Greater
than or equal to 1.5 to 1.0
|
Three-quarters
percent (0.75%) per annum in excess of the Prime
Rate
|
;
provided that
(i) the
Interest Rate shall thereafter be subject to reduction or increase, as
applicable and as set forth in the table above, on a quarterly basis according
to the performance of Borrower as measured by the ratio of EBITDA to Fixed
Charges as of the last day of the
fiscal quarter immediately preceding the applicable Adjustment Date, for the
period of four (4) fiscal quarters ended on the last day of the fiscal quarter
immediately preceding the applicable Adjustment Date (except
that, for the fiscal quarters ending on September 30, 2008, and December 31,
2008, the Borrower's ratio of EBITDA to Fixed Charges for purposes of this
definition shall be calculated for the periods beginning on February 1, 2008,
and ending on the applicable date); (ii)
except
as set forth in clause (iii) below, any increase or reduction in the Interest
Rate provided for in this subsection (C) shall be effective on the first day
of
the month immediately following Lender's receipt and review of the applicable
financial statements and corresponding compliance certificate (each, an
"Adjustment Date"); (iii) if the financial statements and the corresponding
compliance certificate of Borrower setting forth the ratio of EBITDA to Fixed
Charges are not received by Lender on or prior to the date required pursuant
to
Section 9.6(a) of this Agreement, the Interest Rate shall be determined as
if
the ratio of EBITDA to Fixed Charges is less than 1.0 to 1.0 (without regard
to
the actual ratio of EBITDA to Fixed Charges) until such time as such financial
statements and compliance certificate are received by Lender and any Event
of
Default resulting from Borrower's failure to timely deliver such financial
statements or compliance certificate is waived in writing by Lender; (iv) Lender
shall be entitled to accrue and receive interest at the Default Rate as defined
in, and to the extent authorized by, subsection (D) below, and, on each date
that the Default Rate accrues on any Loans, the Interest Rate on such date
for
such Loans shall be determined as if the ratio of EBITDA to Fixed Charges is
less than 1.0 to 1.0 (without regard to the actual ratio of EBITDA to Fixed
Charges); (v) for the final fiscal quarter of any fiscal year, Borrower may
provide the monthly unaudited financial statements of Borrower required under
Section 9.6(a) of this Agreement for the purpose of determining the Interest
Rate; however,
if,
upon delivery of the annual audited financial statements required to be
submitted by Borrower to Lender pursuant to Section 9.6(a) of this Agreement,
Borrower has not met the criteria for reduction of the Interest Rate pursuant
to
the terms hereinabove for the final fiscal quarter of the fiscal year then
ended, then (x) such Interest Rate reduction shall be terminated and, effective
on the first day of the month immediately following the month in which Lender
receives and reviews such audited financial statements, the Interest Rate shall
be the Interest Rate that would have been in effect if such reduction had not
been implemented based upon the monthly unaudited financial statements of
Borrower for the final fiscal quarter of the fiscal year then ended, and (x)
Borrower shall pay to Lender, on demand, the amount equal to the difference
between the amount of interest and fees that would have been paid using the
Interest Rate determined based upon such audited financial statements and the
amount of interest and fees actually paid during the period in which the
reduction of the Interest Rate was in effect based upon the monthly unaudited
financial statements for the final fiscal quarter of the fiscal year then ended;
and
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(D) notwithstanding
anything to the contrary contained herein, at Lender's option and without
notice, the rate of interest (the "Default Rate") equal to three percent (3.00%)
per annum in excess of rate of interest set forth in subsection (A), (B) or
(C)
above, as applicable, (i) during the period from and after the date of
termination or non-renewal of this Agreement until such time as all Obligations
are indefeasibly paid and satisfied in full in immediately available funds;
(ii)
during 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).
(b) By
adding
to Section
1
of the
Loan Agreement, in proper alphabetical sequence, the following new
definition:
1.60.1 "Seventeenth
Amendment Date" shall mean September 17, 2008.
(c) By
deleting the period from the end of Section
3.1(b)(G)
of the
Loan Agreement and by substituting in lieu thereof the following:
,
and (H)
no Eurodollar Rate Loans shall be made, no Prime Rate Loans shall be converted
to Eurodollar Rate Loans, and no Eurodollar Rate Loans shall be continued,
as
the case may be, on or after the Seventeenth Amendment Date.
(d) 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.
(A) With
respect to each month set forth below in which either (i) Average Excess
Availability for such month is less than the amount set forth below and
corresponding to such month, or (ii) an Event of Default occurs or exists,
Borrower shall not permit the ratio of EBITDA to Fixed Charges, measured as
of
the last day of such month for the testing period set forth below and
corresponding to such month, to be less than 1.0 to 1.0:
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Month
|
Average
Excess Availability
|
Testing
Period
|
February
2007
|
$1,500,000
|
Fiscal
year to date
|
March
2007
|
$1,500,000
|
Fiscal
year to date
|
April
2007
|
$1,500,000
|
Fiscal
year to date
|
May
2007
|
$1,500,000
|
Fiscal
year to date
|
June
2007
|
$2,500,000
|
Fiscal
year to date
|
July
2007
|
$2,500,000
|
Fiscal
year to date
|
August
2007
|
$2,500,000
|
Fiscal
year to date
|
September
2007
|
$2,500,000
|
Fiscal
year to date
|
October
2007
|
$1,800,000
|
Fiscal
year to date
|
November
2007
|
$800,000
|
Fiscal
year to date
|
December
2007
|
$800,000
|
Fiscal
year to date
|
January
2008
|
$800,000
|
Fiscal
year to date
|
February
2008
|
$1,200,000
|
Fiscal
year to date
|
March
2008
|
$1,200,000
|
Fiscal
year to date
|
April
2008
|
$1,350,000
|
Fiscal
year to date
|
May
2008
|
$1,350,000
|
Fiscal
year to date
|
June
2008
|
$1,350,000
|
Fiscal
year to date
|
July
2008
|
$1,350,000
|
Period
commencing on February 1, 2008, and ending on July 31,
2008
|
August
2008
|
$1,350,000
|
Period
commencing on February 1, 2008, and ending on August 31,
2008
|
September
2008
|
$1,350,000
|
Period
commencing on February 1, 2008, and ending on September 30,
2008
|
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(B) With
respect to each month set forth below, Borrower shall not permit the ratio
of
EBITDA to Fixed Charges, measured as of the last day of such month for the
period set forth below and corresponding to such month, to be less than the
ratio set forth below and corresponding to such month:
Month
|
Testing
Period
|
Minimum
Ratio
|
October
2008
|
Period
commencing on February 1, 2008, and ending on October 31,
2008
|
1.0
to 1.0
|
November
2008
|
Period
commencing on February 1, 2008, and ending on November 30,
2008
|
1.0
to 1.0
|
December
2008
|
Period
commencing on February 1, 2008, and ending on December 31,
2008
|
1.3
to 1.0
|
January
2009 and each month thereafter
|
Trailing
twelve months ending on the last day of the month
|
1.3
to 1.0
|
(e) By
extending the "Renewal Date" set forth in Section
12.1(a)
of the
Loan Agreement from December 31, 2008, to July 1, 2009.
(f) By
deleting the table set forth in Section
12.1(c)
of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
Amount
|
Period
|
|
(i)
|
Three
percent (3.0%) of the Maximum Credit
|
From
the date of this Agreement to and including September 25,
2003
|
(ii)
|
One
and one-half percent (1.5%) of the Maximum Credit
|
From
September 26, 2003, to and including September 25, 2004
|
(iii)
|
One-half
percent (0.5%) of the Maximum Credit
|
From
September 26, 2004, to and including August 31, 2008
|
(iv)
|
Zero
percent (0%) of the Maximum Credit
|
From
September 1, 2008, to and including December 31, 2008
|
(v)
|
One-half
percent (0.5%) of the Maximum Credit
|
Any
date on or after January 1, 2009, other than the Renewal
Date
|
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3. 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.
4. 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.
5. 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.
6. 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 twenty-five
thousand dollars ($25,000) 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.
7. 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
(c) no
Default or Event of Default shall exist or occur on the date
hereof.
8. Upon
the
effectiveness of 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.
9. This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
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10. 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.
11. 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.
12. 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. Any party delivering a manually-executed counterpart
of
this Amendment by facsimile or other electronic transmission shall also deliver
an original executed counterpart of this Amendment, but the failure to deliver
an original executed counterpart shall not affect the validity, enforceability
and binding effect of this Amendment.
13. 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.
[Remainder
of page intentionally left blank - signatures commence on following
page]
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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 on 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
|
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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