Contract
Exhibit
10.1
THIS
NOTE
IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT IN FAVOR OF WACHOVIA
BANK, NATIONAL ASSOCIATION.
NOTWITHSTANDING ANY CONTRARY STATEMENT CONTAINED IN THE WITHIN DOCUMENT,
NO
PAYMENT ON ACCOUNT OF ANY OBLIGATION ARISING FROM OR IN CONNECTION WITH THE
WITHIN INSTRUMENT OR ANY RELATED AGREEMENT (WHETHER OF PRINCIPAL, INTEREST
OR
OTHERWISE) SHALL BE MADE, PAID, RECEIVED OR ACCEPTED EXCEPT IN ACCORDANCE
WITH
THE TERMS OF THE SUBORDINATION AGREEMENT. THE PAYMENT OF PRINCIPAL AND INTEREST
ON THIS NOTE IS SUBJECT TO CERTAIN SET-OFF PROVISIONS SET FORTH IN THE AGREEMENT
(DEFINED BELOW). THIS NOTE WAS ORIGINALLY ISSUED ON SEPTEMBER __, 2005 AND
HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
| $_____________ |
Ft.
Lauderdale,
Florida
|
September
__, 2005
SECTION
1. General.
XXXXXXXXX MOBILE FUELING, INC., a Florida corporation (the “Company”),
having an address at 000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, for value received, hereby promises to pay to ________________,
an individual, and [his][her] permitted successors or assigns (the “Holder”),
having an address at ______________________, Texas _______ the principal
sum of
______________ DOLLARS ($_____________), plus accrued interest thereon as
hereinafter provided, as subject to adjustment in accordance with Section
2.4 of
the Agreement (as defined below).
This
Unsecured Deferred Payment Promissory Note (this “Note”)
has
been executed and delivered pursuant to and in accordance with the terms
and
conditions of the Stock Purchase Agreement, dated September ___, 2005, by
and
among the Company, H&W Petroleum Co., Inc. (“H&W”),
and
the stockholders of the Company (the “Agreement”),
and
is subject to the terms and conditions of the Agreement, which are, by this
reference, incorporated herein and made a part hereof. Capitalized terms
used in
this Note without definition shall have the respective meanings set forth
in the
Agreement.
SECTION
2. Interest.
Interest shall accrue on the unpaid principal balance of this Note at a fixed
rate of interest equal to ten percent (10%) per annum (the “Interest
Rate”).
If
all or a portion of (i) the principal amount of this Note or (ii) any
interest payable hereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate of thirteen percent (13%) per annum. Notwithstanding anything to
the
contrary contained herein or in the Agreement in no event shall the amount
payable by the Company as interest or other charges on this Note exceed the
highest lawful rate permissible under any law applicable hereto.
SECTION
3. Payments.
(a) Adjustment
to Amounts Due Under this Note.
The
aggregate amount of principal and accrued interest due under this Note will
be
reduced by the Holder’s pro rata portion of the Adjustment Amount in accordance
with Section 2.4 of the Agreement. In no event shall the
Adjustment Amount reduce below zero the amounts due under this
Note.
(b) Principal
and Interest.
The
principal amount of this Note and all accrued and unpaid interest thereon,
as
adjusted, shall be due and payable on the thirtieth (30th)
day
following the date on which final determination of the Adjustment Amount
is made
in accordance with the Agreement (whether by agreement among the parties,
resolution of an accounting firm, or otherwise) (the “Maturity
Date”).
(c) Manner
of Payment.
Payments of principal and accrued interest under this Note shall be made
on the
Maturity Date, payable in cash by certified check at the Holder’s address
designated above or at such other place as the Holder shall have notified
the
Company in writing, or by wire transfer of immediately available funds to
an
account designated by the Holder in writing, for the entire amount of principal
and accrued interest owing under this Note. If any payment under this Note
shall
be specified to be made on a day which is not a business day, it shall be
made
on the next succeeding day which is a business day. For purposes of this
Note, a
“business day” shall mean any day other than Saturday, Sunday or other day in
which banks are authorized to close in the State of Florida.
(d) Set-off.
After
adjustment of the outstanding principal and accrued interest due on this
Note,
the Company shall have a right to withhold and set-off against any amount
due
hereunder the amount of any claim for damages for breach of the Agreement
to
which the Company may be entitled under the Agreement, including but not
limited
to claims for indemnification pursuant to Article IX of the
Agreement.
SECTION
4. Subordination.
The
Holder acknowledges that the payment of principal and accrued interest on
this
Note are expressly subordinated to the rights and interests of Wachovia Bank,
National Association, successor by merger to Congress Financial Corporation
(Florida) (“Wachovia”),
to
the extent of the existing and future amounts owed by the Company to Wachovia
under the line of credit facility between Wachovia, the Company and SMF
Services, Inc. or to any replacement line of credit facility into which the
Company may subsequently enter requiring that the lender rank in a senior
position to unsecured debt of the Company. The Company and the Holder
acknowledge that this Note is expressly subject to the terms and conditions
of
that certain Subordination Agreement executed effective as of __________,
2005,
by, between and among the Holder, Wachovia, the Company and SMF Services,
Inc.
(the “Subordination
Agreement”).
Upon
request, the Holder agrees to execute and deliver such other documents and
instruments as Wachovia or any senior or commercial lender may reasonably
request to acknowledge and effect the foregoing subordination.
SECTION
5. Events
of Default.
The
existence of any of the following conditions shall constitute an event of
default hereunder (an “Event
of Default”):
(a) The
failure by the Company to pay when due any payment of principal or interest
on
this Note, and such failure continues for thirty (30) days after the Holder
notifies the Company thereof in writing; provided,
however,
that
the exercise of the Company in good faith of its right of set-off pursuant
to
Section 3(c) above, whether or not ultimately determined to be justified,
shall
not constitute an Event of Default;
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(b) If
the
Company (i) shall commence any case or proceeding under any bankruptcy,
insolvency or other similar law or seek reorganization, arrangement,
readjustment of its debts, dissolution, liquidation, winding-up, composition
or
any other relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or any other
similar
act or law, of any jurisdiction, domestic or foreign, now or hereafter existing;
(ii) shall admit the material allegations of any petition or pleading in
connection with any such case or proceeding; (iii) makes an application for,
or
consents or acquiesces to, the appointment of a receiver, conservator, trustee
or similar officer for the Company or for all or a substantial part of the
Company’s property; or (iv) makes a general assignment for the benefit of the
Company’s creditors; or
(c) The
(i) commencement of any case or proceeding against the Company under
any,
bankruptcy, insolvency, or other similar law or seeking reorganization,
arrangement, readjustment of its debts, liquidation, dissolution, winding-up,
composition or any other relief under any bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement, composition, readjustment
of debt or any other similar act or law of any jurisdiction, domestic or
foreign, now or hereafter existing, (ii) appointment of a receiver,
trustee
or similar officer for the Company or for all or a substantial part of the
Company’s property, or (iii) issuance of a warrant of attachment, execution
or similar process against any substantial part of the property of the Company,
and such case, proceeding, receiver, trustee, officer, warrant, execution
or
process shall not be dismissed, bonded or discharged, as applicable, within
one
hundred twenty (120) days of the commencement, appointment or issuance
thereof.
SECTION
6. Rights
and Remedies.
In the
event that one or more Events of Default shall have occurred and be continuing,
the Holder may at its option (subject to the subordination provisions of
Section 4 hereof and any subordination agreements relating thereto)
by
written notice to the Company declare any principal of and the accrued and
unpaid interest on this Note to be immediately due and payable, and thereupon
the same shall become so due and payable, without presentment, demand, protest
or further notice, all of which are hereby waived by the Company. The
Company
agrees
to pay all reasonable costs and expenses incurred by the Holder arising out
of,
or relating to, the enforcement or collection of the indebtedness evidenced
by
this Note, including reasonable attorneys’ fees.
SECTION
7. Waiver.
The
rights and remedies of the Holder under this Note shall be cumulative and
not
alternative. No waiver by the Holder of any right or remedy under this Note
shall be effective unless in a writing signed by the Holder. No course of
dealing or delay on the part of the Holder in exercising any right shall
operate
as a waiver thereof or otherwise prejudice the right of the Holder. Subject
as
aforesaid, no remedy conferred hereby shall be exclusive of any other remedy
referred to herein or now or hereafter available at law, in equity, by statute,
other agreement or instrument, or otherwise.
SECTION
8. Assignment;
Parties in Interest.
This
Note shall bind the Company and its successors and assigns. This Note may
not be
sold, offered for sale, pledged, hypothecated or otherwise encumbered,
transferred or disposed of by the Holder without the prior written consent
of
the Company.
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SECTION
9. Severability.
If any
provision of this Note is held invalid or unenforceable by an court of competent
jurisdiction, the other provisions of this Note will remain in full force
and
effect. Any provision of this Note held invalid or unenforceable only in
party
or degree will remain in full force and effect to the extent not held invalid
or
unenforceable.
SECTION
10. Notices.
All
notices, requests, communications, consents and demands shall be made in
writing
and shall be (i) sent by registered or certified mail, first class,
postage
prepaid, return receipt requested or (ii) delivered by hand, facsimile
transmission or messenger to the Company or to the Holder hereof, as the
case
may be, at their respective addresses set forth at the beginning of this
Note,
or at such other respective addresses as may be furnished in writing to each
other. All such notices, requests communications, consents and demands shall
be
deemed given if mailed, five business days after mailing, and if personally
delivered, the day so delivered.
SECTION
11. Governing
Law.
This
Note shall be governed by, and construed and interpreted in accordance with,
the
laws of the State of Florida without regard to conflicts of laws
principles.
SECTION
12. Submission
to Jurisdiction.
Each of
the Company and the Holder submits to the jurisdiction of any state or federal
court sitting in Broward County, Florida or Xxxxxx County, Texas, in any
action
or proceeding arising out of or relating to this Note and agrees that all
claims
in respect of the action or proceeding may be heard and determined in any
such
court. Each of the Company and the Holder waives any defense of inconvenient
forum to the maintenance of any action or proceeding so brought and waives
any
bond, surety, or other security that might be required of the other party
with
respect thereto.
SECTION
13. WAIVERS
OF JURY TRIAL.
EACH OF
THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL
BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS NOTE AND FOR ANY
COUNTERCLAIM THEREIN.
[Signature
page follows.]
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IN
WITNESS WHEREOF, this Note has been executed and delivered on the date set
forth
at the beginning of this Note by a duly authorized representative of the
Company.
| XXXXXXXXX MOBILE FUELING, INC. | ||
| |
|
|
| By: | ||
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
|
Title:
President and Chief Executive
Officer
|
||
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