FOURTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
FOURTEENTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FOURTEENTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is made and entered into as of February 29, 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 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, as of February 29, 2008, as
follows:
(a) By
adding
to Section
1
of the
Loan Agreement, immediately following existing Section
1.79,
the
following new definitions:
1.80 "Certificate
of Designation" shall mean that certain Certificate of Designation of Series
A
Convertible Preferred Stock of SMF Energy Corporation, dated as of February
29,
2008.
1.81 "February
2008 Consent Letter" shall mean that certain letter agreement, dated as of
August 29, 2008, from Lender to Borrower regarding Lender's consent to the
issuance of Series A Preferred Stock by SMF.
1.82 "Reprieve
Period" shall mean each period of time commencing on or after February 29,
2008,
that satisfies each of the following conditions: (a) such period commences
on
the date that Borrower and Lender enter into an amendment of an existing standby
letter of credit to increase the principal balance thereunder by $250,000 and
ends on the date ten (10) days thereafter, (b) such period commences no earlier
than ten (10) days after the end of any prior Reprieve Period, and (c) no more
than one (1) Reprieve Period shall have occurred prior to such
period.
1.83 "Series
A
Preferred Stock" shall mean Capital Stock of SMF consisting of "Series A
Preferred Stock" issued pursuant to, and as such term is defined in, the
Certificate of Designation.
(b) By
deleting the semicolon at the end of Section
9.7(b)(iii)(E)
of the
Loan Agreement and by substituting in lieu thereof the following:
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",
and (F) SMF shall not issue any Series A Preferred Stock except as
and to
the extent set forth in the February 2008 Consent
Letter;"
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(c) By
deleting the period at the end of Section
9.11(b)
of the
Loan Agreement and by substituting in lieu thereof the following:
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",
and (c) SMF
may declare and pay dividends on Series A Preferred Stock as and
to the
extent set forth in the Certificate of Designation, so long as no
Event of
Default exists either before or immediately after the declaration
or
payment of any such dividend, no Event of Default would result therefrom,
and Borrowers deliver to Lender written notice of any such dividend
not
less than ten (10) Business Days prior to payment thereof, and (d)
SMF
shall be permitted to redeem all or any portion of the Series A Preferred
Stock with proceeds of any issuance or sale by SMF of Capital Stock
consisting of common shares of SMF, so long as no Event of Default
exists
either before or immediately after such issuance, sale or redemption,
no
Event of Default would result therefrom, and Borrowers deliver to
Lender
written notice of any such redemption not less than ten (10) Business
Days
prior to the consummation thereof."
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(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.
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.
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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
|
$1,200,000
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(e) 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, (c) at all times on and after December 31, 2007 (other
than
during any Reprieve Period), $750,000, and (d) during any Reprieve Period,
$500,000.
(f) By
extending the "Renewal Date" set forth in Section
12.1(a)
of the
Loan Agreement from June 30, 2008, to December 31, 2008.
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. Borrower
hereby 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.
5. 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.
6. 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 sixty two thousand five hundred dollars ($62,500), which
Amendment Fee shall be fully earned on the date hereof and shall be payable
in
three installments as follows: (a) twenty two thousand five hundred dollars
($22,500) in immediately available funds on Xxxxx 0, 0000, (x) twenty thousand
dollars ($20,000) in immediately available funds on April 1, 2008, and (c)
twenty thousand dollars ($20,000) in immediately available funds on May 1,
2008.
Additionally, to induce Lender to enter into this Amendment and grant the
accommodations set forth herein, Borrower hereby 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-
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 first installment of the Amendment
Fee
on the date such installment is payable;
(c) SMF
shall
have received gross cash proceeds from the issuance of Series A Preferred Stock
(as defined in that certain letter agreement, of even date herewith, regarding
Lender's consent to the issuance of such stock (the "Consent Letter")) in an
amount not less than $500,000, and the holders of not less than $2,000,000
in
principal amount of November 2007 Subordinated Debt (as defined in the Consent
Letter) shall have exchanged such Subordinated Debt for Series A Preferred
Stock
of SMF, all as contemplated by the Consent Letter; and
(d) no
Default or Event of Default shall exist or occur on the date
hereof.
8. 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.
9. This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
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.
13. 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.
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[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 executed this Amendment as of the
day
and year first above written.
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"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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Fourteenth
Amendment to Loan and Security 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.
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"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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Fourteenth
Amendment to Loan and Security Agreement
