FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
FIFTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Fifth Amendment"), made
and
entered into as of the 1st day of October, 2005, by and among Xxxxxxxxx Mobile
Fueling, Inc., a Florida corporation (hereinafter referred to as "Original
Borrower"), SMF Services, Inc., a Delaware corporation (hereinafter referred
to
as "Second Borrower"), H&W Petroleum Company, Inc., a Texas corporation
(hereinafter referred to as "New Borrower" and, collectively with Original
Borrower and Second Borrower, as "Borrower") and Wachovia Bank, National
Association, successor by merger to Congress Financial Corporation (Florida)
(hereinafter referred to as "Lender").
R E C I
T
A L S:
A. On
September 26, 2002, Original Borrower and Lender entered into a Loan
and
Security Agreement (the "Agreement"), establishing a revolving line of credit
(the "Revolving Loans") by Lender in favor of Original Borrower.
B. Original
Borrower and Lender executed a Consent and First Amendment to Loan and Security
Agreement dated as of March 31, 2003 (the "First Amendment"), consenting
to
certain subordinated debt of Original Borrower and modifying certain defined
terms in the Agreement.
C. Original
Borrower and Lender executed a Second Amendment to Loan and Security Agreement
dated as of August 29, 2003 (the “Second Amendment”), (1) permitting Original
Borrower to incur certain additional secured Indebtedness, and (2) releasing
Lender's security interest in the patents (including the related trade names
utilized in such patents) constituting a portion of the Collateral, subject
to
the terms and conditions stated therein.
D. Original
Borrower and Lender executed a Third Amendment to Loan and Security Agreement
dated as of August 30, 2003 (the "Third Amendment"), modifying certain terms
of
the Agreement in order to reflect that the amount of the additional secured
Indebtedness contemplated by the Second Amendment exceeded the actual amount
thereof.
E. Original
Borrower, Second Borrower and Lender executed a Fourth Amendment to Loan
and
Security Agreement dated as of February 18, 2005 (the "Fourth Amendment"),
adding Second Borrower as an additional borrower under the Revolving Loans,
extending the term of the Agreement, and modifying the applicable Interest
Rate,
the unused line fee and certain covenants of the Agreement.
F. New
Borrower has purchased certain assets from Xxxxxxxxx Distributing Company,
Inc.,
a Texas corporation, (the "Asset Purchase"), Original Borrower desires to
acquire all of the outstanding shares of New Borrower's capital stock (the
"Stock Purchase"), and Original Borrower is incurring certain unsecured and
additional secured Indebtedness (the "Acquisition Financing") in order to
finance the Stock Purchase.
G. Borrower
and Xxxxxxxxx Realty, Inc., a Florida corporation, have requested that Lender
add New Borrower as an additional borrower under the Revolving Loans, increase
the Maximum Credit amount for the Revolving Loans, add certain inventory
to the
Borrowing Base, decrease the applicable Interest Rate, extend the term of
the
Agreement and modify certain covenants of the Agreement, and Lender is agreeable
to same, subject to the terms and conditions hereinafter set forth.
NOW
THEREFORE, in consideration of the mutual covenants of the parties hereto,
and
for other good and valuable consideration, it is agreed as follows:
1. The
foregoing statements are true and correct and are incorporated herein as
if set
forth in full.
2. Unless
otherwise defined herein, all terms used herein shall have the definitions
specified in the Agreement, as modified by the First Amendment, the Second
Amendment, the Third Amendment, and the Fourth Amendment; all references
hereinafter made to the Agreement to include the modifications thereto
effectuated pursuant to the First Amendment, the Second Amendment, the Third
Amendment, and the Fourth Amendment.
3. Borrower
confirms and acknowledges that the balance due Lender under the Revolving
Loans
as of the close of business on October 1, 2005 was the principal amount of
$3,334,535.81 plus accrued interest since the date last paid, all free and
clear
of any defense, set-off or counterclaim.
4. The
Agreement is hereby modified as follows (all references to Sections and
Subsections being the applicable Sections and Subsections of the
Agreement):
(a)
|
The
term "Borrower" shall hereafter refer to Original Borrower, Second
Borrower and New Borrower (as redefined in this Fifth Amendment),
as
co-borrowers (each a
"Co-Borrower").
|
(b)
|
Section
1.6 is amended and restated in its entirety to read as
follows:
|
1.6 "Borrowing
Base" shall mean, at any time, the amount equal to: (a) eighty-five (85%)
percent of the (i) Net Amount of Eligible Accounts and (ii) Unbilled Gallons
Delivered, plus
(b) the
lesser of (i) $3,500,0000 (the "Inventory Loan Limit") or (ii) the lesser
of
sixty-five (65%) percent multiplied by the Value of the Eligible Inventory
of
New Borrower consisting of finished goods or eighty-five (85%) percent of
the
Net Recovery Percentage multiplied by the Value of such Eligible Inventory,
less
(c) any
Reserves. For purposes only of applying the Inventory Loan Limit, Lender
may
treat the then undrawn amounts of outstanding Letter of Credit Accommodations
for the purpose of purchasing Eligible Inventory as Revolving Loans to the
extent Lender is in effect basing the issuance of the Letter of Credit
Accommodations on the Value of the Eligible Inventory being purchased with
such
Letter of Credit Accommodations. In determining the actual amounts of such
Letter of Credit Accommodations to be so treated for purposes of the sublimit,
the outstanding Revolving Loans and Reserves shall be attributed first to
any
components of the lending formulas set forth above that are not subject to
such
sublimit, before being attributed to the components of the lending formulas
subject to such sublimit. The amounts of Eligible Inventory of New Borrower
shall, at Lender’s option, be determined based on the lesser of the amount of
Inventory set forth in the general ledger of New Borrower or the perpetual
inventory record maintained by New Borrower.
2
(c)
|
Section
1.34 shall hereafter additionally reference and include the Information
Certificate of New Borrower dated October 1,
2005.
|
(d)
|
In
Section 1.37, the amount “three-quarters (.75%) percent per annum” is
substituted in lieu of the amount "one and three-quarters (1.75%)
percent
per annum."
|
(e)
|
In
Section 1.45, the amount “$20,000,000.00” is substituted in lieu of the
amount “$10,000,000.00”.
|
(f)
|
The
“Reserves”, as defined in Section 1.58, shall specifically include,
without limitation, (a) the aggregate amount of each Borrower's
accounts
payable owing to Chevron/Texaco at any time, and (b) the Value
of all
Inventory located at premises owned or operated by
Exxon/Mobil.
|
(g)
|
Section
1.69 is amended and restated in its entirety to read as
follows:
|
1.69 “Excluded
Assets” shall mean (i) the Vehicles of Second Borrower acquired from Shank
C&E Investments, L.L.C. (“Shank”) on February 18, 2005 and securing the
January 2005 Indebtedness (hereinafter defined), including future additions,
parts, accessories, attachments, substitutions, repairs, related intangibles
and
improvements and replacements to or of any such Vehicle, (ii) the
Equipment
of
Second Borrower acquired from Shank on February 18, 2005 and securing the
January 2005 Indebtedness, including future additions, parts, accessories,
attachments, substitutions, repairs, related intangibles and improvements
and
replacements to or of any such Equipment, (iii) the intangible assets of
Second
Borrower acquired from Shank on February 18, 2005, securing the January 2005
Indebtedness and listed on Schedule
A
hereto,
(iv) the Vehicles owned by New Borrower on October 1, 2005 and securing the
September 2005 Indebtedness (hereinafter defined), including future additions,
parts, accessories, attachments, substitutions, repairs, related intangibles
and
improvements and replacements to or of any such Vehicle, (v) the Equipment
owned
by New Borrower on October 1, 2005 and securing the September 2005 Indebtedness,
including future additions, parts, accessories, attachments, substitutions,
repairs, related intangibles and improvements and replacements to or of any
such
Equipment, and (vi) any future additions, parts, accessories, attachments,
substitutions, repairs, related intangibles and improvements and replacements
to
or of the Vehicles and Equipment leased by New Borrower on October 1,
2005.
3
(h)
|
The
following defined terms and definitions are added to Section
1:
|
1.70 “Capital
Expenditures” shall mean expenditures made or liabilities
incurred for the acquisition of any fixed assets or improvements,
replacements, substitutions or additions thereto which
have a useful life of more than one year, including the total principal
portion of Indebtedness under Capital Leases.
1.71 “Eligible
Inventory” shall mean Inventory of New Borrower consisting of finished goods
held for resale in the ordinary course of the business of New Borrower which
are
acceptable to Lender based on the criteria set forth below. In general, Eligible
Inventory shall not include (a) work-in-process or raw materials; (b) components
which are not part of finished goods; (c) spare parts for equipment; (d)
packaging and shipping materials; (e) supplies used or consumed in such
Borrower’s business; (f) Inventory at premises other than those owned or leased
and controlled by such Borrower; provided,
that,
(i) as
to locations which are leased by such Borrower, if Lender shall not have
received a Collateral Access Agreement from the owner and lessor with respect
to
such location, duly authorized, executed and delivered by such owner and
lessor
(or Lender shall determine to accept a Collateral Access Agreement that does
not
include all required provisions or provisions in the form otherwise required
by
Lender), Lender may, at its option, establish such Reserves in respect of
amounts at any time due or to become due to the owner and lessor thereof
as
Lender shall determine, and (ii) as to locations owned and operated by a
third
person, if Lender shall not have received a Collateral Access Agreement from
the
owner and operator with respect to such location, duly authorized, executed
and
delivered by such owner and operator (or Lender shall determine to accept
a
Collateral Access Agreement that does not include all required provisions
or
provisions in the form otherwise required by Lender), Lender may, at its
option,
establish such Reserves in respect of amounts at any time due or to become
due
to the owner and operator thereof as Lender shall determine, provided that,
in
addition, if required by Lender, in order for such Inventory at locations
owned
and operated by a third person to be Eligible Inventory, Lender shall have
received: (x) UCC financing statements between the owner and operator, as
consignee or bailee and such Borrower, as consignor or xxxxxx, in form and
substance satisfactory to Lender, which are duly assigned to Lender and (y)
a
written notice to any lender to the owner and operator of the first priority
security interest in such Inventory of Lender; (g) Inventory subject to a
security interest or lien in favor of any Person other than Lender except
those
permitted in this Agreement subject to any liens except those permitted in
this
Agreement that are subject to an intercreditor agreement in form and substance
satisfactory to Lender between the holder of such security interest or lien
and
Lender; (h) xxxx and hold goods; (i) unserviceable, obsolete or slow moving
Inventory; (j) Inventory which is not subject to the first priority, valid
and
perfected security interest of Lender; (k) returned, damaged and/or defective
Inventory; (l) Inventory purchased or sold on consignment, and (m) Inventory
located outside the United States of America. The criteria for Eligible
Inventory set forth above may only be changed and any new criteria for Eligible
Inventory may only be established by Lender in good faith based on either:
(a)
an event, condition or other circumstance arising after the date hereof,
or (b)
an event, condition or other circumstance existing on the date hereof to
the
extent Lender has no written notice thereof from New Borrower prior to the
date
it becomes a Borrower under this Agreement, in either case under clause (a)
or
(b) which adversely affects or could reasonably be expected to adversely
affect
the Inventory in the good faith determination of Lender. Any Inventory which
is
not Eligible Inventory shall nevertheless be part of the
Collateral.
4
1.72 “Net
Recovery Percentage” shall mean the fraction, expressed as a percentage, (a) the
numerator of which is the amount equal to the amount of the recovery in respect
of the Inventory at such time on a “net orderly liquidation value” basis as set
forth in the most recent acceptable appraisal of Inventory received by Lender
in
accordance with Section 7.3, net of operating expenses, liquidation expenses
and
commissions, and (b) the denominator of which is the applicable original
cost of
the aggregate amount of the Inventory subject to such appraisal.
1.73 “Value”
shall mean, as determined by Lender in good faith, with respect to Inventory,
the lower of (a) cost computed on a first-in first-out basis in accordance
with
GAAP or (b) market value, provided,
that,
for
purposes of the calculation of the Borrowing Base, (i) the Value of the
Inventory shall not include: (A) the portion of the value of Inventory equal
to
the profit earned by any Affiliate on the sale thereof to any Borrower or
(B)
write-ups or write-downs in value with respect to currency exchange rates
and
(ii) notwithstanding anything to the contrary contained herein, the cost
of the
Inventory shall be computed in the same manner and consistent with the most
recent appraisal of the Inventory received and accepted by Lender prior to
the
date New Borrower became a Borrower under this Agreement, if any.
5
(i)
|
Section
2.1(c), reading as follows, is added immediately after
Section 2.1(b):
|
(c) Lender
may, in its discretion, from time to time, upon not less than five (5) days
prior notice to any Borrower, reduce the lending formula(s) with respect
to
Eligible Inventory to the extent that Lender determines in good faith that:
(i)
the number of days of the turnover of the Inventory for any period has adversely
changed or (ii) the liquidation value of the Eligible Inventory, or any category
thereof, has decreased, including any decrease attributable to a change in
the
nature, quality or mix of the Inventory. The amount of any decrease in the
lending formulas shall have a reasonable relationship to the event, condition
or
circumstance which is the basis for such decrease as determined by Lender
in
good faith. In determining whether to reduce the lending formula(s), Lender
may
consider events, conditions, contingencies or risks which are also considered
in
determining Eligible Accounts, Eligible Inventory or in establishing
Reserves.
(j)
|
Section
2.2(d) is amended and restated in its entirety to read as
follows:
|
(d) In
addition to being subject to the satisfaction of the applicable conditions
precedent contained in Section 4 hereof and the other terms and conditions
contained herein, no Letter of Credit Accommodations shall be available unless
each of the following conditions precedent have been satisfied in a manner
satisfactory to Lender: (i) Borrower shall have delivered to the proposed
issuer
of such Letter of Credit Accommodation at such times and in such manner as
such
proposed issuer may require, an application in form and substance satisfactory
to such proposed issuer and Lender for the issuance of the Letter of Credit
Accommodation and such other documents as may be required pursuant to the
terms
thereof, and the form and terms of the proposed Letter of Credit Accommodation
shall be satisfactory to Lender and such proposed issuer, (ii) as of the
date of
issuance, no order of any court, arbitrator or other Governmental Authority
shall purport by its terms to enjoin or restrain money center banks generally
from issuing letters of credit of the type and in the amount of the proposed
Letter of Credit Accommodation, and no law, rule or regulation applicable
to
money center banks generally and no request or directive (whether or not
having
the force of law) from any Governmental Authority with jurisdiction over
money
center banks generally shall prohibit, or request that the proposed issuer
of
such Letter of Credit Accommodation refrain from, the issuance of letters
of
credit generally or the issuance of such Letters of Credit Accommodation;
and
(iii) the Excess Availability, prior to giving effect to any Reserves with
respect to such Letter of Credit Accommodations, on the date of the proposed
issuance of any Letter of Credit Accommodations, shall be equal to or greater
than: (A) if the proposed Letter of Credit Accommodation is for the purpose
of
purchasing Eligible Inventory and the documents of title with respect thereto
are consigned to the issuer, the sum of (1) the percentage equal to one hundred
(100%) percent minus the then applicable percentage with respect to Eligible
Inventory set forth in the definition of the term Borrowing Base multiplied
by
the Value of such Eligible Inventory, plus (2) freight, taxes, duty and other
amounts which Lender estimates must be paid in connection with such Inventory
upon arrival and for delivery to one of New Borrower's locations for Eligible
Inventory within the United States of America and (B) if the proposed Letter
of
Credit Accommodation is for any other purpose or the documents of title are
not
consigned to the issuer in connection with a Letter of Credit Accommodation
for
the purpose of purchasing Inventory, an amount equal to one hundred (100%)
percent of the face amount thereof and all other commitments and obligations
made or incurred by Lender with respect thereto. Effective on the issuance
of
each Letter of Credit Accommodation, a Reserve shall be established in the
applicable amount set forth in Section 2.2(d)(iii)(A) or Section
2.2(d)(iii)(B).
6
(k)
|
In
order to secure the Obligations, New Borrower grants to Lender
the
security interest in Collateral pursuant to Section
5.1.
|
(l)
|
Section
7.1(a)(v), reading as follows, is added immediately after Section
7.1(a)(iv):
|
(v) as
soon
as possible after the end of each week (but in any event within three (3)
Business Days after the end thereof), on a weekly basis or more frequently
as
Lender may request, (A) perpetual inventory reports, and (B) inventory reports
by location and category (including identifying Inventory at locations owned
and
operated by third parties or on consignment).
(m)
|
Section
7.3 is amended and restated in its entirety to read as
follows:
|
7.3 Inventory
Covenants.
With
respect to the Inventory: (a) Borrower shall at all times maintain inventory
records reasonably satisfactory to Lender, keeping correct and accurate records
itemizing and describing the kind, type, quality and quantity of Inventory,
Borrower's cost therefor and daily withdrawals therefrom and additions thereto;
(b) New Borrower shall conduct a physical count of the Inventory at least
once
each year, but at any time or times as Lender may request on or after an
Event
of Default, and promptly following such physical inventory shall supply Lender
with a report in the form and with such specificity as may be reasonably
satisfactory to Lender concerning such physical count; (c) New Borrower shall
not remove any Inventory from the locations set forth or permitted herein,
without the prior written consent of Lender, except for sales of Inventory
in
the ordinary course of New Borrower's business and except to move Inventory
directly from one location set forth or permitted herein to another such
location and except for Inventory shipped from the manufacturer thereof to
New
Borrower which is in transit to the locations set forth or permitted herein;
(d)
upon Lender's request, New Borrower shall, at its expense, no more than two
(2)
in any twelve (12) month period, but at any time or times as Lender may request
on or after an Event of Default, deliver or cause to be delivered to Lender
written appraisals as to the Inventory 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; (e) Borrower shall produce,
use,
store and maintain the Inventory with all reasonable care and caution and
in
accordance with applicable standards of any insurance and in conformity with
applicable laws (including the requirements of the Federal Fair Labor Standards
Act of 1938, as amended and all rules, regulations and orders related thereto);
(f) none of the Inventory or other Collateral constitutes farm products or
the
proceeds thereof; (g) Borrower assumes all responsibility and liability arising
from or relating to the production, use, sale or other disposition of the
Inventory; (h) Borrower shall not sell Inventory to any customer on approval,
or
any other basis which entitles the customer to return or may obligate Borrower
to repurchase such Inventory; (i) Borrower shall keep the Inventory in good
and
marketable condition; and (j) Borrower shall not, without prior written notice
to Lender or the specific identification of such Inventory with respect thereto
provided by Borrower to Lender pursuant to Section 7.1(a) hereof, acquire
or
accept any Inventory on consignment or approval.
7
(n)
|
Section
9.9(i), reading as follows, is added immediately after
Section 9.9(h):
|
(i)
Indebtedness of Borrower evidenced by the 10% Senior Secured Notes due August
31, 2010, dated as of September 1, 2005 in the aggregate principal amount
of
$3,000,000 (the "September 2005 Indebtedness") and secured by a security
interest in the Excluded Assets owned by New Borrower, all pursuant to
documentation containing terms satisfactorily subordinating such Indebtedness
to
the Obligations and otherwise acceptable to Lender.
8
(o)
|
Section
9.17 is amended and restated in its entirety to read as
follows:
|
9.17 Capital
Expenditures.
Borrower shall not make Capital Expenditures which in the aggregate exceed
$1,500,000 during fiscal year 2006 or $750,000 during any fiscal year
thereafter.
(p)
|
Section
9.19(f) is amended and restated in its entirety to read as
follows:
|
(f) all
out-of-pocket expenses and costs heretofore and from time to time hereafter
incurred by Lender during the course of periodic field examinations of the
Collateral and Borrower's operations (which, in the absence of an Event of
Default and exclusive of acquisition preliminary examinations and take-over
examinations, shall not exceed three (3) per year), plus a per diem charge
at
the rate of $800 per person per day for Lender's examiners in the field and
office; and
(q)
|
Section
9.21 is amended and restated in its entirety to read as
follows:
|
9.21 Fixed
Charge Coverage Ratio.
Borrower shall not, as of each quarter end in which the Average Excess
Availability is less than $3,000,000 and at all times following the occurrence
of an Event of Default, on a cumulative basis for that fiscal year, permit
the
ratio of (a) EBITDA to (b) Fixed Charges to be less than 1.0 to
1.0.
(r)
|
In
Section 12.1, the "Renewal Date" in subsection (a) is extended
to the date
five (5) years from the date of the
Agreement.
|
5. Each
and
every reference to the Agreement in the other Financing Agreements shall
be
deemed to refer to the Agreement, as modified by this Fifth
Amendment.
6. The
effectiveness of this Fifth Amendment is subject to satisfactory compliance
with
conditions precedent requiring that Lender shall have received:
(a)
|
copies
of the final executed documents (i) evidencing and securing the
10% Senior
Secured Notes due August 31, 2010, and (ii) pertaining to the Asset
Purchase and the Stock Purchase, including, without limitation,
the
subordination agreement in Lender's favor with respect to the Acquisition
Financing, all in form and substance satisfactory to
Lender;
|
(b)
|
satisfactory
results of all Lender's due diligence with respect to the assets
of New
Borrower;
|
9
(c)
|
evidence,
in form and substance satisfactory to Lender, that Lender has valid
perfected and first priority security interests in and liens upon
the
Collateral furnished by New
Borrower;
|
(d)
|
all
requisite corporate action and proceedings in connection with this
Fifth
Amendment and the other Financing Agreements shall be satisfactory
in form
and substance to Lender, and Lender shall have received all information
and copies of all documents, including records of requisite corporate
action and proceedings which Lender may have requested in connection
therewith, such documents where requested by Lender or its counsel
to be
certified by appropriate officers or governmental
authorities;
|
(e)
|
Lender
shall have received, in form and substance satisfactory to Lender,
all
consents, waivers, acknowledgments and other agreements from third
persons
which Lender may deem necessary or desirable in order to permit,
protect
and perfect its security interests in and liens upon the Collateral
furnished by New Borrower or to effectuate the provisions or purposes
of
the Agreement and the other Financing Agreements, including
acknowledgments by lessors, mortgagees and warehousemen of Lender’s
security interests in the Collateral, waivers by such persons of
any
security interests, liens or other claims by such persons to the
Collateral and agreements permitting Lender access to, and the
right to
remain on, the premises to exercise its rights and remedies and
otherwise
deal with the Collateral;
|
(f)
|
Lender
shall have received evidence of insurance and loss payee endorsements
required under the Agreement and under the other Financing Agreements,
in
form and substance satisfactory to Lender, and certificates of
insurance
policies and/or endorse-ments naming Lender as loss
payee;
|
(g)
|
an
executed guarantee agreement from Xxxxxxxxx Realty, Inc. for the
Obligations, in form and substance acceptable to
Lender;
|
(h)
|
current
certificates of good standing for New Borrower from the Secretary
of State
of Texas;
|
(i)
|
current
Articles of Incorporation and certified By-laws for New
Borrower;
|
(j)
|
the
written opinion of counsel for New Borrower, in form and substance
acceptable to Lender; and
|
(k)
|
such
additional documents, instruments and agreements as are required
hereunder
as well as those which Lender or its counsel may reasonably
request.
|
7. As
partial consideration for Lender adding New Borrower as a co-borrower under
the
Revolving Loans, and amending the Agreement as provided above, Lender has
fully
earned a nonrefundable facility fee in the amount of Fifty Thousand Dollars
($50,000) which shall be paid to Lender simultaneously with the execution
of
this Fifth Amendment, irrespective of any actual further funding under the
Revolving Loans.
10
8. Borrower
represents and warrants to Lender that, except as has been otherwise disclosed
to Lender in writing, the representations and warranties contained in the
Agreement and all related loan documentation are true and correct on and
as of
the date hereof (with the same force and effect as if made on and as of the
date
hereof, other than representations and warranties made as of a specific date
which shall be deemed made as of such date) and with respect to this Fifth
Amendment and the related documentation referenced herein, and that no Default
or Event of Default shall have occurred and be continuing. Specifically,
Original Borrower represents and warrants that its Articles of Incorporation
and
Bylaws, certified on September 26, 2002 were not amended on or subsequent
to their aforesaid certification date, other than the July 23, 2003 amendment
to
Articles of Incorporation increasing the number of authorized shares of common
stock from 20,000,000 to 50,000,000 shares, and Second Borrower represents
and
warrants that its Certificate of Incorporation and Bylaws, certified on February
18, 2005 were not amended on or subsequent to their aforesaid certification
date.
9. Borrower
acknowledges and confirms that all Collateral furnished in connection with
the
Agreement, except patents, continue to secure the Obligations and indebtedness
thereunder, as hereby modified.
10. Borrower
and Obligor each hereby release and forever discharge 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, liquidated or unliquidated,
contingent or fixed, determined or undetermined, at law or in equity, which
Borrower or Obligor, had, now has, or may 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 Fifth 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 and Obligor
each acknowledges that this provision is a material inducement for Lender
entering into this Fifth Amendment and this provision shall survive payment
in
full of all Obligations and termination of all Financing
Agreements.
11. Borrower
shall pay all out-of-pocket expenses incurred by Lender in connection with
the
preparation for and closing of the transaction contemplated under this Fifth
Amendment, including, without limitation, the fees and expenses of special
counsel for Lender. In addition, Borrower shall pay any and all taxes (together
with interest and penalties, if any, applicable thereto) and fees, including,
without limitation, documentary stamp taxes, now or hereafter required in
connection with the execution and delivery of the Agreement, as hereby amended,
and all related documents, instruments and agreements.
11
12. Except
as
expressly modified herein, all terms and provisions of the Agreement, and
all
other documents, instruments and agreements executed and/or delivered in
connection with the Agreement, shall remain unchanged and in full force and
effect; provided,
however,
in the
event of any inconsistency, incongruity or conflict between the terms of
the
Agreement and the terms of this Fifth Amendment, the terms of this Fifth
Amendment shall govern and control. No consent of Lender hereunder shall
operate
as a waiver or continuing consent with respect to any instance or event other
than those specified herein. Neither this Fifth Amendment nor
any
earlier waiver or amendment of the Agreement will constitute a novation or
have
the effect of discharging any liability or obligation evidenced by the Agreement
or any related document. This Fifth Amendment shall not be deemed to prejudice
any rights or remedies which Lender may now have or may have in the future
under
or in connection with the Agreement or the Financing Agreements or any of
the
instruments or agreements referred to therein, as the same may be amended,
restated or otherwise modified. This Fifth Amendment is part of the Agreement
and constitutes a Financing Agreement thereunder.
13. All
covenants, agreements, representations and warranties contained herein shall
be
binding upon and inure to the benefit of the parties hereto, their respective
successors and assigns, except that Borrower shall not have the right to
assign
its rights hereunder or any interest herein without the prior written consent
of
Lender.
14. This
Fifth Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which, when so executed,
shall
be deemed to be an original and shall be binding upon all parties, their
successors and assigns, and all of which taken together shall constitute
one and
the same agreement.
15. This
Fifth Amendment shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida, without giving effect
to its
conflict of law principles.
16. LENDER,
BORROWER AND OBLIGOR EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS FIFTH AMENDMENT
OR
THE AGREEMENT AND ANY AGREEMENT, DOCUMENT OR INSTRUMENT EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER ENTERING INTO THIS FIFTH AMENDMENT.
12
IN
WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment the
day
and year first above written.
BORROWER:
XXXXXXXXX
MOBILE FUELING, INC., a Florida corporation
By:/s/Xxxxxxx
X.
Xxxxxxxxx
Name:
Xxxxxxx
X.
Xxxxxxxxx
Title:
President
and Chief Executive
Officer
SMF
SERVICES, INC., a Delaware corporation
By:/s/Xxxxxxx
X.
Xxxxxxxxx
Name:
Xxxxxxx
X.
Xxxxxxxxx
Title:
President
and Chief Executive
Officer
H&W
PETROLEUM COMPANY, INC., a Texas corporation
By:/s/Xxxxxxx
X.
Xxxxxxxxx
Name:
Xxxxxxx
X.
Xxxxxxxxx
Title:
Chief
Executive
Officer
LENDER:
WACHOVIA
BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO CONGRESS FINANCIAL
CORPORATION (FLORIDA)
By:/s/Xxx
Xxxxxxxxx
Name:
Xxx Xxxxxxxxx
Title:
Vice President
|