EIGHTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
EIGHTEENTH
AMENDMENT
THIS
EIGHTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is made
and entered into on June 29, 2009, 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. 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
adding the following new Section 1.3 to the Loan Agreement, in proper numerical
sequence:
1.3 "Applicable
Margin" shall mean:
(a) during
the period commencing on the Eighteenth Amendment Date 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 June 30,
2009, (i) as to all Prime Rate Loans that are Revolving Loans, two percent
(2.00%), (ii) as to all Prime Rate Loans that are Term Loans, two and
three-quarters percent (2.75%), (iii) as to all LMIR Loans that are Revolving
Loans, three percent (3.00%), and (iv) as to all LMIR Loans that are Term Loans,
three and three-quarters percent (3.75%); and
(b) 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 June 30, 2009, as to all Loans, the Applicable
Margin 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), as
follows:
|
RATIO OF EBITDA TO
|
APPLICABLE MARGIN
|
|||||||||||||||
|
FIXED CHARGES
|
Prime Rate Loans
|
LMIR Loans
|
||||||||||||||
|
Revolving
Loans |
Term Loan
|
Revolving
Loans |
Term Loan
|
|||||||||||||
|
Less
than or equal to 1.3 to 1.0
|
2.75 | % | 3.50 | % | 3.75 | % | 4.50 | % | ||||||||
|
Greater
than 1.3 to 1.0, but less than 1.9 to 1.0
|
2.25 | % | 3.00 | % | 3.25 | % | 4.00 | % | ||||||||
|
Greater
than or equal to 1.9 to 1.0
|
2.00 | % | 2.75 | % | 3.00 | % | 3.75 | % | ||||||||
; provided that (i) the
Applicable Margin 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; (ii) except
as set forth in clause (iii) below, any increase or reduction in the Applicable
Margin provided for in this subsection (b) 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, then the Applicable Margin shall be
determined as if the ratio of EBITDA to Fixed Charges is less than 1.3 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) on each date that the Default Rate accrues on any Loans, the
Applicable Margin on such date for such Loans shall be determined as if the
ratio of EBITDA to Fixed Charges is less than 1.3 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 Applicable Margin; 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 Applicable Margin pursuant to the
terms hereinabove for the final fiscal quarter of the fiscal year then ended,
then (x) such Applicable Margin 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 Applicable Margin
shall be the Applicable Margin 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 (y)
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
Applicable Margin 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 Applicable Margin was in effect based upon the monthly
unaudited financial statements for the final fiscal quarter of the fiscal year
then ended.
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(b) By
deleting the definition of "Business Day" contained in Section 1.7 of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.7 "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 LMIR Loans, then the term Business Day shall also exclude
any day on which banks are closed for dealings in U.S. Dollar deposits in the
London interbank market.
(c) By
deleting the phrase ", but excluding Vehicles" from the definition of
"Equipment" contained in Section 1.22 of the
Loan Agreement.
(d) By
adding the following parenthetical to the end of subclause (b)(i) of the
definition of "Excess Availability" contained in Section 1.27 of the
Loan Agreement, immediately following the word "Obligations":
(but not
including for this purpose the then outstanding principal amount of the Term
Loan)
(e) By
deleting the definition of "Fixed Charges" contained in Section 1.29A of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.29A "Fixed
Charges" shall mean, with respect to any period, the sum, calculated for
Borrower and its Subsidiaries on a consolidated basis, of the following, without
duplication: (a) all Interest Charges paid in cash during such period, plus (b) all
principal payments of Indebtedness for borrowed money (for this purpose
including, without limitation, regularly scheduled repayments of the Term Loan
but excluding any prepayments of the Term Loan required by Section 7.4(b) and
any repayments of the Revolving Loans) made during such period and all payments
of Indebtedness for the deferred purchase price of any property or services
(including, without limitation, any indemnification, adjustment of purchase
price, earn-outs or other similar obligations incurred in connection with any
future (i.e., occurring after the Eighteenth Amendment Date) acquisition or sale
or other disposition of assets) and Capital Leases (including, without
duplication of items (a) and (b) of this definition but otherwise without
limitation, the interest component with respect to Indebtedness under Capital
Leases) made during such period, plus (c) the amount
of all Capital Expenditures incurred during such period, to the extent not
financed by Indebtedness permitted under this Agreement for such purpose, plus (d) the amount
of all taxes that are based on (or measured by) income, to the extent that such
taxes are paid in cash during such period and are used or included in the
determination of Net Income for such, or any other, period, plus (e) all
dividends, distributions, repurchases and redemptions in respect of Capital
Stock paid in cash during such period.
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(f) By
deleting the definition of "Information Certificate" contained in Section 1.34 of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.34 "Information
Certificate" shall mean, collectively, (a) the Information Certificate of SMF
Energy Corporation (or its predecessor in interest, Xxxxxxxxx Mobile Fueling,
Inc.) dated on or about August 30, 2002 (as revised on or about September 26,
2002 and on or about February 15, 2007) and delivered to Lender, (b) the
Information Certificate of SMF Services, Inc. dated on or about February 18,
2005 (as revised on or about February 15, 2007) and delivered to Lender, and (c)
the Information Certificate of H & W Petroleum Company, Inc. dated on or
about October 5, 2005 (as revised on or about February 15, 2007) and
delivered to Lender; in each case, containing material information with respect
to Borrower, its business and assets provided by or on behalf of Borrower to
Lender in connection with this Agreement and the other Financing Agreements and
the financing arrangements provided for herein; and, in each case, as such
Information Certificate has been updated and delivered to Lender on June 29,
2009, and as such Information Certificate may be updated after the Eighteenth
Amendment Date from time to time with the consent of Lender.
(g) By
adding the phrase "patents, patent rights, patent applications," to the
definition of "Intellectual Property" contained in Section 1.35 of the
Loan Agreement, immediately following the word "acquired:" and immediately
preceding the word "copyrights".
(h) By
deleting the definition of "Interest Charges" contained in Section 1.36 of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.36 "Interest
Charges" shall mean, with respect to any period, the amount, determined in
accordance with GAAP, equal to the total interest expense of Borrower and its
Subsidiaries on a consolidated basis for such period, whether paid or accrued
(including, without limitation, the interest component of any Capital Lease for
such period), and in any event including, without limitation: (a) bank fees,
commissions, discounts and other fees and charges owed with respect to letters
of credit, banker’s acceptances or similar instruments or any factoring,
securitization or similar arrangements, (b) interest payable by addition to
principal or in the form of property other than cash and any other interest
expense not payable in cash, and (c) to the extent not otherwise included in
such total interest expense, the costs or fees associated with Swap
Agreements.
(i) By
deleting the definition of "Interest Rate" contained in Section 1.37 of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
"Interest
Rate" shall mean:
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(a) Subject
to clause (b) of this definition, (i) as to all Prime Rate Loans that are
Revolving Loans, the per annum rate equal to the Prime Rate plus the Applicable
Margin for Prime Rate Loans that are Revolving Loans; (ii) as to all Prime Rate
Loans that are Term Loans, the per annum rate equal to the Prime Rate plus the
Applicable Margin for Prime Rate Loans that are Term Loans; (iii) as to all LMIR
Loans that are Revolving Loans, the per annum rate equal to the LIBOR Market
Index Rate plus the Applicable Margin for LMIR Loans that are Revolving Loans;
and (iv) as to all LMIR Loans that are Term Loans, the per annum rate equal to
the LIBOR Market Index Rate plus the Applicable Margin for LMIR Loans that are
Term Loans; and
(b) 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) above, (i)
during the period from and after the Renewal Date (or, if earlier, the date on
which this Agreement is terminated in accordance with the terms hereof) 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 (iii) 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).
(j) By
deleting the definition of "Loans" contained in Section 1.43 of the
Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.43 "Loans"
shall mean, collectively, the Revolving Loans and the Term Loan.
(k) By
deleting the second sentence of the definition of "Reserves" contained in Section 1.58 of
the Loan Agreement and by substituting in lieu thereof the
following:
Without
limiting the generality of the foregoing, the term "Reserves" as used herein
shall include, without limitation, (a) Dilution Reserves, (b) the aggregate
amount of Borrower's accounts payable owing to Chevron/Texaco at any time, (c)
at any time that the ratio of EBITDA to Fixed Charges, measured as of the last
day of the immediately preceding month for the twelve month period then ending,
is less than 1.25 to 1.00, the aggregate amount of Borrower's payroll for a
period of two weeks with respect to all drivers employed or contracted by
Borrower, and (d) the Disposed Vehicle Reserve.
(l) By
deleting the definition of "Revolving Loan Limit" contained in Section 1.59 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following:
"Revolving Loan Limit" shall mean the
amount of $20,000,000.
(m) By
deleting the definition of "Excluded Assets" contained in Section 1.69 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.69 [Reserved]
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(n) By
deleting the definition of "Capital Expenditures" contained in Section 1.70 of
the Loan Agreement in its entirety 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 that have a useful life of more than one year, including the
total principal portion of Indebtedness under Capital Leases, but excluding any
expenditures made to acquire Vehicles using the proceeds of Loans advanced by
Lender from a reduction of the Disposed Vehicle Reserve in the manner and to the
extent permitted under Section 7.4(b) of this Agreement.
(o) By
deleting the definition of "Eurodollar Rate" contained in Section 1.74 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following new definition of "LIBOR Market Index Rate":
1.74 "LIBOR
Market Index Rate" shall mean, for any date of determination, the per annum rate
of interest equal to the greater of (a) three-quarters of one percent (0.75%),
and (b) the rate of interest (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for one (1) month U.S. Dollar deposits at approximately 11:00 a.m.
(London time) on such date, or, if such date is not a Business Day, then the
immediately preceding Business Day (or, if not so reported, then as determined
by Lender from another recognized source or interbank quotation); provided, however, that, if
more than one rate is specified on Reuters Screen LIBO Page, then the applicable
rate shall be the arithmetic mean of all such specified rates.
(p) By
deleting the definition of "Eurodollar Rate Loans" contained in Section 1.75 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following new definition of "LMIR Loans":
1.75 "LMIR
Loans" shall mean any Loans, or portion thereof, on which interest is payable
based on the LIBOR Market Index Rate in accordance with the terms
hereof.
(q) By
deleting the definition of "LIBOR" contained in Section 1.77 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.77 [Reserved]
(r) By
deleting the definition of "Reprieve Period" contained in Section 1.82 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following:
1.82 [Reserved]
(s) By
adding the following new Sections 1.90, 1.91, 1.92, 1.93, 1.94, 1.95 and
1.96 to the Loan Agreement, in proper numerical sequence:
1.90 "Disposed
Vehicle Reserve" shall have the meaning ascribed to such term in Section
9.7(b)(iv).
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1.91 "Eighteenth
Amendment" shall mean that certain Eighteenth Amendment to Loan and Security
Agreement, dated June 29, 2009, by and among Borrower and Lender.
1.92 "Eighteenth
Amendment Date" shall mean June 29, 2009.
1.93 "Net
Orderly Liquidation Value" shall mean, with respect to Borrower's Vehicles, the
net orderly liquidation value of such Vehicles as contained in the most recent
appraisal delivered to Lender pursuant to Section 7.4(b), or, in the case of
Vehicles acquired subsequently to any such appraisal, the net orderly
liquidation value of such Vehicles as determined by Lender based on the purchase
price of such Vehicles, the information contained in the most recent appraisal
delivered to Lender for similar Vehicles, the blue book values of such Vehicles,
and such other information or documentation as Lender deems relevant or
appropriate.
1.94 "Required
LTV Percentage" shall have the meaning ascribed to such term in Section
7.4(b).
1.95 "Term
Loan" shall mean the term loan made by or on behalf of Lender to Borrower as
provided for in Section 2.3.
1.96 "Term
Note" shall have the meaning ascribed to such term in Section 2.3.
(t) By
adding the following new Section 2.3 to the Loan Agreement, immediately
following the end of existing Section 2.2:
2.3 Term
Loan. Subject to and upon the terms and conditions contained
herein, on the Eighteenth Amendment Date Lender is making the Term Loan to
Borrower in the original principal amount of $5,000,000.00. The Term
Loan is (i) evidenced by a term note in such original principal amount
(substantially in the form of Exhibit A to the Eighteenth Amendment) duly
executed and delivered by Borrower to Lender on the Eighteenth Amendment Date
(the "Term Note"), (ii) to be repaid, together with interest and other amounts,
in accordance with this Agreement, the Term Note, and the other Financing
Agreements, and (iii) secured by all of the Collateral.
The
principal amount of the Term Loan shall be repaid in sixty (60) consecutive
monthly installments (or earlier as provided herein) payable on the first day of
each month commencing on August 1, 2009, of which the first fifty-nine (59)
installments shall each be in the amount of $83,333.00 and the last installment
shall be in the amount of the entire unpaid balance of the Term
Loan. Notwithstanding anything to the contrary contained herein, the
entire unpaid balance of the Term Loan shall be payable on the Renewal Date or,
if earlier, the date on which this Agreement is terminated in accordance with
the terms hereof.
(u) By
deleting Section 3.1 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following:
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3.1 Interest.
(a) Borrower
shall pay to Lender interest on the outstanding principal amount of the Loans at
the applicable Interest Rate. All interest accruing hereunder on and
after the date of any Event of Default or any termination hereof or the Renewal
Date shall be payable on demand.
(b) Each
Loan outstanding on the Eighteenth Amendment Date shall be converted
automatically to a LMIR Loan as of the Eighteenth Amendment
Date. Each Loan made on or after the Eighteenth Amendment Date shall
be a LMIR Loan, unless at the time such Loan is made all outstanding Loans are
Prime Rate Loans, in which case such Loan shall (subject to Section 3.5 of this
Agreement) be a Prime Rate Loan. Subject to Section 3.5 of this
Agreement, Borrower may from time to time request that all Loans be either LMIR
Loans or Prime Rate Loans (in which case, all outstanding Prime Rate Loans would
be converted to LMIR Loans or all outstanding LMIR Loans would be converted to
Prime Rate Loans, as applicable), in each instance by delivering to Lender
written notice of such request at least five (5) Business Days prior to the date
on which such conversion is to occur. Any request by Borrower to
convert Prime Rate Loans to LMIR Loans or LMIR Loans to Prime Rate Loans shall
be irrevocable.
(c) 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 shall increase or decrease by an amount equal
to each increase or decrease in the Prime Rate or LIBOR Market Index Rate, as
applicable, effective on the date any change in such Prime Rate or LIBOR Market
Index Rate is effective. 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.
(v) By
deleting Section 3.4 of
the Loan Agreement in its entirety and by substituting in lieu thereof the
following:
3.4 Unused Line
Fee. Borrower shall pay to Lender monthly an unused line fee
at the per annum rate equal to one-half of one percent (0.50%) of the amount by
which the Revolving Loan Limit exceeds the average daily principal balance of
the outstanding Revolving Loans and Letter of Credit Accommodations during the
immediately preceding month (or part thereof) while this Agreement is in effect
and for so long thereafter as any of the Obligations are outstanding, which fee
shall be payable on the first day of each month in arrears.
(w) By
deleting subsections (b), (c) and (d) of Section 3.5 of the
Loan Agreement and by substituting in lieu thereof the
following:
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(b) If
at any time, (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 LIBOR Market Index Rate, (ii) Lender determines that the LIBOR
Market Index Rate will not adequately and fairly reflect the cost to Lender of
making or maintaining LMIR Loans, or (iii) U.S. Dollar deposits in the
principal amounts of the LMIR Loans are not generally available in the London
interbank market, then Lender shall give electronic mail, telecopy or telephonic
notice thereof to Borrower as soon as practicable thereafter, and will also give
prompt electronic mail, telecopy or telephonic notice to Borrower when such
conditions no longer exist. If such notice is given, then (x) any
LMIR Loans requested to be made shall be made as Prime Rate Loans, and (y) each
outstanding LMIR Loan shall be converted automatically to a Prime Rate
Loan. Until such notice has been withdrawn by Lender, no further LMIR
Loans shall be made, nor shall Borrower have the right to convert Prime Rate
Loans to LMIR Loans.
(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 LMIR Loans as contemplated by this Agreement, then (i) Lender
shall promptly give electronic mail, telecopy or telephonic notice of such
circumstances to Borrower (and will also give prompt electronic mail, telecopy
or telephonic notice to Borrower when such circumstances no longer exist), (ii)
the commitment of Lender hereunder to make LMIR Loans and convert Prime Rate
Loans to LMIR Loans shall forthwith be canceled and, until such time as it shall
no longer be unlawful for Lender to make or maintain LMIR Loans, Lender shall
then have a commitment only to make a Prime Rate Loan when a LMIR Loan is
requested, and (iii) Loans then outstanding as LMIR Loans, if any, shall be
converted automatically to Prime Rate Loans.
(x) By
deleting the parenthetical "(except Vehicles)" contained in the first sentence
of Section 5.1
of the Loan Agreement and by substituting in lieu thereof the parenthetical
"(including, without limitation, all Vehicles, patents, patent rights and patent
applications)".
(y) By
adding the following new subsection (j) to the end of Section 5.2 of
the Loan Agreement, immediately following the end of the existing subsection (i)
thereof:
(j) Without
limiting the generality of the requirements of Section 5.2(i)(ii)
hereof:
(i) On
the Eighteenth Amendment Date, Borrower agrees to cause the security interest
and lien of Lender hereunder to be noted as the first and only lien on
certificates of title relating to each Vehicle owned by Borrower on the
Eighteenth Amendment Date, including each Vehicle listed on the Information
Certificate, and promptly to execute and deliver to Lender such title
applications, lien notation documents and other information and documentation as
may be required under all applicable laws of the respective states in which such
Vehicles are titled to cause Lender's lien to attach, be perfected and have
first priority as against all other security interests, liens or other
encumbrances with respect to such Vehicles, and Borrower agrees promptly on
demand to pay (or to reimburse Lender for the payment of) all title registration
fees and other costs associated therewith.
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(ii) With
respect to any Vehicle acquired by Borrower after the Eighteenth Amendment Date,
(A) on or before the Relation Back Date (as defined below) with respect to such
Vehicle, Borrower agrees to execute and deliver to Lender (or, with Lender's
written consent, deliver to the applicable governmental office) such title
applications, lien notation documents and other information and documentation as
may be required under all applicable laws of the state in which such Vehicle is
titled to cause Lender's lien to attach, be perfected and have first priority as
against all other security interests, liens or other encumbrances with respect
to such Vehicle, and Borrower agrees promptly on demand to pay (or to reimburse
Lender for the payment of) all title registration fees and other costs
associated therewith, and (B) in connection with any such acquisition, Lender
agrees to reduce the Disposed Vehicle Reserve in the amount equal to the Net
Orderly Liquidation Value of such Vehicle, so long as (x) such acquired Vehicle
is of the same type as the Vehicle or Vehicles the sale or other disposition of
which give rise to the portion of the Disposed Vehicle Reserve to be reduced,
(y) at the time of such acquisition, no Default or Event of Default exists, and
(z) after giving effect to the proposed acquisition and reduction in the
Disposed Vehicle Reserve, the principal balance of the Term Loan minus the amount of
the Disposed Vehicle Reserve is not greater than seventy-five percent (75%) of
the Net Orderly Liquidation Value of Borrower's Vehicles.
As used
herein, the term "Relation Back Date"
shall mean the date that is five (5) Business Days prior to the date by which
title applications and other lien notation documentation and associated fees
must, under the applicable law of the state in which such Vehicle is titled, be
submitted to the applicable governmental office in order for Lender's security
interest or lien to relate back to the date of Borrower's acquisition of such
Vehicle.
(iii) Lender
agrees, at Borrower's expense, to execute lien release documentation reasonably
requested by Borrower with respect to any certificate of title relating to a
Vehicle that is sold, transferred or otherwise disposed of by Borrower in
accordance with Section 9.7(b)(iv) hereof.
(z) By
deleting the third sentence of Section 6.4(a) of the
Loan Agreement and by substituting in lieu thereof the following:
Notwithstanding
anything to the contrary contained in this Agreement, to the extent that
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 Letter 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.
-10-
(aa) By
(i) adding the designation "(a)" to Section 7.4 of the
Loan Agreement, immediately following the header of such Section and immediately
preceding the text of such Section, with the effect that the existing text of
such Section (as further amended in clause (ii) hereof) will hereafter
constitute subsection 7.4(a) of the Loan Agreement; (ii) adding the
parenthetical "(except Vehicles)" to clause (i) of such subsection 7.4(a),
immediately following the word "Equipment" and immediately preceding the word
"having"; and (iii) adding the following new subsection 7.4(b) to the Loan
Agreement, immediately following the end of such subsection 7.4(a):
(b) With
respect to Equipment consisting of Vehicles: (i) at Lender's request up to twice
per year, and at any other time or times as Lender requests after an Event of
Default, Borrower shall, at its expense, deliver or cause to be delivered to
Lender written appraisals as to such Vehicles, in form, scope and methodology
acceptable to Lender and by an appraiser acceptable to Lender, addressed to
Lender and upon which Lender is expressly permitted to rely (it being understood
that, in the absence of an Event of Default, no more than one appraisal per year
shall be required to be a "full" appraisal and all appraisals in excess of one
per year may be "desktop" appraisals); and (ii) if, on the date of Lender's
receipt of the applicable appraisal, the principal balance of the Term Loan
minus the
balance of the Disposed Vehicle Reserve exceeds the Required LTV Percentage of
the Net Orderly Liquidation Value of Borrower's Vehicles, then Borrower shall
prepay the principal balance of the Term Loan in the amount of such excess, in
the inverse order of its maturity, within ten (10) Business Days after Lender
delivers written notice to Borrower of the existence of such circumstance and
the amount of such excess. As used herein, the term "Required LTV
Percentage" means, (X) eighty-five percent (85%) during the period
beginning on the Eighteenth Amendment Date and ending on June 30, 2010, (Y)
eighty percent (80%) during the period beginning on July 1, 2010 and ending on
June 30, 2011, and (Z) seventy-five percent (75%) at all times on and after July
1, 2011.
(bb) By
deleting the parenthetical "(except with respect to the Vehicles)" from Section 9.5 of
the Loan Agreement.
(cc) By
deleting Section 9.7 of
the Loan Agreement in its entirety and by substituting in lieu
thereof the following:
9.7 Sale of Assets,
Consolidation, Merger, Dissolution, Etc. Borrower shall not,
and shall not permit any Subsidiary to (and Lender does not authorize Borrower
or any Subsidiary to), directly or indirectly:
(a) merge
into or with or consolidate with any other Person or permit any other Person to
merge into or with or consolidate with it; or
-11-
(b) sell,
assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or
Indebtedness to any other Person or any of the Collateral to any other Person,
except for (i) sales of Inventory in the ordinary course of business; (ii) the
disposition of worn-out or obsolete Equipment other than Vehicles so long as (A)
any proceeds are paid to Lender and (B) such sales do not involve Equipment
having an aggregate fair market value in excess of $200,000.00 for all such
Equipment disposed of in any fiscal year of Borrower; (iii) the issuance and
sale by Borrower of Capital Stock of Borrower after the date hereof; provided, that, (A) Lender
shall have received not less than ten (10) Business Days prior written notice of
such issuance and sale by Borrower, which notice shall specify the parties to
whom such shares are to be sold, the terms of such sale, the total amount which
it is anticipated will be realized from the issuance and sale of such stock and
the net cash proceeds which it is anticipated will be received by Borrower from
such sale, (B) Borrower shall not be required to pay any cash dividends or
repurchase or redeem such Capital Stock or make any other payments in respect
thereof, (C) the terms of such Capital Stock, and the terms and conditions of
the purchase and sale thereof, shall not include any terms that include any
limitation on the right of Borrower to request or receive Loans or Letter of
Credit Accommodations or the right of Borrower to amend or modify any of the
terms and conditions of this Agreement or any of the other Financing Agreements
or otherwise in any way relate to or affect the arrangements of Borrower with
Lender or are more restrictive or burdensome to Borrower than the terms of any
Capital Stock in effect on the date hereof, (D) except as Lender may otherwise
agree in writing, all of the proceeds from such sale and issuance shall be paid
to Lender for application to the Obligations in such order and manner as Lender
may determine, (E) as of the date of such issuance and sale and after giving
effect thereto, no Default or Event of Default shall exist or have occurred, and
(F) Borrowers shall not issue any preferred Capital Stock (except that SMF may
issue up to $2,000,000 in aggregate principal amount of its Series D Preferred
Stock); and (iv) sales or other dispositions of worn-out or obsolete Vehicles in
the ordinary course of business of Borrower, so long as (A) no Default or Event
of Default exists at the time of any such sale or other disposition, (B)
Borrower has provided Lender with written notice of the proposed sale or
disposition not less than five (5) Business Days prior to the consummation
thereof, and Lender has provided its prior written consent to such sale or other
disposition, and (C) no later than three (3) Business Days after the sale or
other disposition of such Vehicle, Borrower shall have remitted the net sale
proceeds thereof to Lender, in cash, which shall be applied by Lender to the
outstanding balance of the Revolving Loans at such time and a Reserve against
the Borrowing Base established (or increased) in the amount of such net proceeds
(the "Disposed Vehicle Reserve"); or
(c) wind
up, liquidate or dissolve; or
(d) agree
to do any of the foregoing.
(dd) By
deleting Section
9.8(g) of the Loan Agreement in its entirety.
(ee) By
deleting Section
9.9(g) of the Loan Agreement in its entirety and by substituting in lieu
thereof the following:
-12-
(g) unsecured
Indebtedness of Borrower to one or more outside investors, pursuant to
documentation (including but not limited to one or more promissory notes due
June 2014), and on terms, satisfactory to Lender in its sole discretion, in an
aggregate principal amount not to exceed $1,000,000 (the "Outside Investor
Subordinated Debt"); provided, that the
Outside Investor Subordinated Debt shall be subject at all times to the terms of
that certain Subordination Agreement dated on or about the Eighteenth Amendment
Date among the holders of the Outside Investor Subordinated Debt (and such other
loan holders as may join as a party to such subordination agreement as
contemplated therein), Borrower and Lender.
(ff) By
deleting Section
9.19(f) of the Loan Agreement in its entirety and by substituting in lieu
thereof the following:
(f) all
out-of-pocket expenses and costs from time to time hereafter incurred by Lender
during the course of periodic field examinations of the Collateral and
Borrower's operations, plus a per diem charge at the rate of $850 per person per
day (plus all out-of-pocket expenses and costs) for Lender's examiners in the
field and office; provided, however, that, in the
absence of an Event of Default, Lender shall conduct no more than three (3) such
examinations in any twelve (12) month period, exclusive of acquisition
preliminary examinations and take-over examinations; and
(gg) 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. With respect to each calendar month, Borrower shall not
permit the ratio of EBITDA to Fixed Charges, measured as of the last day of such
month for the twelve (12) month period then ending, to be less than 1.1 to
1.0.
(hh) 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 $250,000 at all
times.
(ii) By
deleting the first sentence of Section 12.1(a) of
the Loan Agreement and by substituting in lieu thereof the
following:
(a) This
Agreement and the other Financing Agreements shall become effective as of the
date set forth on the first page hereof and shall continue in full force and
effect, unless sooner terminated pursuant to the terms hereof, for a term ending
on July 1, 2012 (the "Renewal Date").
(jj) By
deleting Schedule
A to the Loan Agreement in its entirety.
3. Borrower
hereby reaffirms the grant of, and hereby grants, the security interest in
property described in and pursuant to the Loan Agreement. As security
for the prompt payment and performance of all of the Obligations, Borrower
hereby grants and re-grants to Lender a continuing security interest in, and
lien upon all, and right of setoff against, and hereby assigns and re-assigns to
Lender as security, all personal and real property and fixtures, and interests
in real and personal property and fixtures, of Borrower, whether now owned or
hereafter acquired or existing, and wherever located, including, without
limitation:
-13-
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(a)
|
all
Accounts;
|
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(b)
|
all
general intangibles, including, without limitation, all Intellectual
Property (including, without limitation, all patents, patent rights and
patent applications);
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|
(c)
|
all
goods, including, without limitation, Inventory and Equipment (including,
without limitation, all Vehicles);
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|
(d)
|
all
Real Property and fixtures;
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|
(e)
|
all
chattel paper (including, without limitation, all tangible and electronic
chattel paper);
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|
(f)
|
all
instruments (including, without limitation, all promissory
notes);
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|
(g)
|
all
documents;
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(h)
|
all
deposit accounts;
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(i)
|
all
letters of credit, banker's acceptances and similar instruments and
including all letter-of-credit
rights;
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(j)
|
all
supporting obligations and all present and future liens, security
interests, rights, remedies, title and interest in, to and in respect of
Receivables and other Collateral, including, without limitation
(i) rights and remedies under or relating to guaranties, contracts of
suretyship, letters of credit and credit and other insurance related to
the Collateral, (ii) rights of stoppage in transit, replevin,
repossession, reclamation and other rights and remedies of an unpaid
vendor, lienor or secured party, (iii) goods described in invoices,
documents, contracts or instruments with respect to, or otherwise
representing or evidencing, Receivables or other Collateral, including,
without limitation, returned, repossessed and reclaimed goods, and
(iv) deposits by and property of account debtors or other persons
securing the obligations of account
debtors;
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(k)
|
all
(i) investment property (including, without limitation, securities,
whether certificated or uncertificated, securities accounts, security
entitlements, commodity contracts or commodity accounts) and
(ii) monies, credit balances, deposits and other property of Borrower
now or hereafter held or received by or in transit to Lender or its
Affiliates or at any other depository or other institution from or for the
account of Borrower, whether for safekeeping, pledge, custody,
transmission, collection or
otherwise;
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(l)
|
all
commercial tort claims, including, without limitation, those disclosed to
Lender in writing;
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(m)
|
to
the extent not otherwise described above, all
Receivables;
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(n)
|
all
Records; and
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-14-
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(o)
|
all
products and proceeds of the foregoing, in any form, including, without
limitation, insurance proceeds and all claims against third parties for
loss or damage to or destruction of or other involuntary conversion of any
kind or nature of any or all of the other
Collateral.
|
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 that 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, each 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 and commitment fee (the "Amendment Fee") in the amount
of seventy-five thousand dollars ($75,000) 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 or
delivered 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. Without limiting the generality of the foregoing, Borrower
hereby agrees to pay, or to reimburse Lender for the payment of, all title
application fees and other costs associated with the notation of Lender's
security interest upon certificates of title with respect to Borrower's
Vehicles, and any documentary stamps, intangibles recording taxes or other
amounts required to be paid by Borrower or Lender in connection with this
Amendment, the Term Note or any other agreement, instrument or document executed
or delivered in connection therewith or the transactions contemplated
thereby.
8. The
effectiveness of each 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:
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|
(a)
|
Lender
shall have received duly executed and delivered counterparts of this Amendment and the
attached Acknowledgment
and Agreement of Guarantor from Borrower and Guarantor,
respectively;
|
-15-
|
|
(b)
|
Lender
shall have received duly executed and delivered Closing and Incumbency
Certificates from Borrower and Guarantor, together with a certified
copy of the articles of
incorporation, bylaws and resolutions of the board
of directors of Borrower and Guarantor, and certificates of good
standing issued as of a recent date by each state in which Borrower
and Guarantor, respectively, are required to be qualified in order to
operate their businesses as currently
conducted;
|
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(c)
|
Lender
shall have received an original counterpart of the Term Note, duly executed
and delivered by Borrower;
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(d)
|
Lender
shall have received an original counterpart of a Trademark Security
Agreement, Patent Security Agreement, deposit account control agreements
and all other security
documents required by Lender in connection herewith, each in form
and substance satisfactory to
Lender;
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(e)
|
Lender
shall have received from Borrower and Guarantor an updated Information
Certificate;
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(f)
|
Lender
shall have received and reviewed the results of lien searches with
respect to Borrower, Guarantor and their respective assets, and Lender
shall be satisfied that, after giving effect to the transactions
contemplated hereby, the Collateral shall not be encumbered by any
security interests, liens or other encumbrances other than as permitted by
Section 9.8
of the Loan Agreement, after giving effect to this
Amendment;
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(g)
|
Lender
shall have received, with respect to the Outside Investor Subordinated
Debt, copies of each agreement, instrument or document executed or
delivered by Borrower or the holders of the Outside Investor Subordinated
Debt in connection with the incurrence of, or otherwise evidencing, such
Indebtedness, and a duly executed and delivered Debt Subordination
Agreement from the holders of the Outside Investor Subordinated
Debt, in form and substance satisfactory to Lender in its
discretion;
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(h)
|
Lender
shall have received a duly executed and delivered payoff letter from
American National Bank, as indenture trustee, in form and substance
satisfactory to Lender, which shall, among other things, provide evidence
that, after giving effect to the consummation of this Amendment, all of
the Indebtedness of Borrower listed on Exhibit B
attached hereto shall have been satisfied and repaid in full, all liens,
security interests and other encumbrances securing such Indebtedness shall
have been released and terminated of record, and Lender shall have
reviewed and found satisfactory in all respects the capital structure of
Borrower and Guarantor after giving effect to the transactions
contemplated hereby;
|
-16-
|
|
(i)
|
Lender
shall have received original certificates of title
with respect to all Collateral consisting of Equipment the ownership of
which is evidenced by such a certificate, which shall bear all signatures
required to release the interest of the holder of any liens noted thereon,
or Lender shall be satisfied that, simultaneously with the consummation of
the transactions contemplated by this Amendment, the holder of any such
liens will execute any such releases and deliver the original certificates
of title to Lender, and Lender shall have received from Borrower duly
executed title
applications and lien notation forms with respect to each such
certificate of title, each in form and substance satisfactory to
Lender;
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(j)
|
Lender
shall have received a duly executed and delivered UCC pre-filing authorization
letter from Borrower and Guarantor, authorizing Lender to file
UCC-1 financing statements with respect to all or any portion of the
personal property of Borrower and Guarantor, and Lender shall have
received evidence of the filing of such financing statements in the
applicable recording offices with respect
thereto;
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|
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(k)
|
Lender
shall have received from counsel for Borrower and Guarantor a duly
executed and delivered opinion letter as to
such matters as Lender requires, which shall be in form and substance
satisfactory to Lender and its
counsel;
|
|
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(l)
|
Lender
shall have received from Borrower a duly executed and delivered post-closing letter as
to such matters as Lender requires, which shall be in form and substance
satisfactory to Lender and its
counsel;
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(m)
|
Lender
shall have received such other documents, instruments and agreements as
Lender requires, including, without limitation, any items listed on the
Schedule of Closing
Documents circulated by Lender's counsel in connection herewith,
all of which shall be in form and substance satisfactory to
Lender;
|
|
|
(n)
|
Lender
shall have received full payment of the Amendment Fee;
and
|
|
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(o)
|
no
Default or Event of Default
shall exist or occur on the date
hereof.
|
9. 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.
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.
-17-
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. 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.
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.
[Remainder of page intentionally left
blank - signatures commence on following page]
-18-
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
|
|
|
"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
|
||
Eighteenth
Amendment to Loan and Security Agreement
ACKNOWLEDGMENT AND AGREEMENT
OF GUARANTOR
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
|
||
EXHIBIT
A
Form of Term
Note
[See
attached]
EXHIBIT
B
Indebtedness to be Satisfied
and Repaid in Full
[See
attached]
