Exhibit 10.1
FOURTH MODIFICATION AGREEMENT
DATE: As of June 15, 2023
PARTIES: Borrower: Individually and collectively, EVO HOLDING COMPANY, LLC, a Delaware limited liability company, XXXXXX TRANSPORT, INC., a Maryland corporation, XXXX X. XXXXXX TRUCKING, INC., a Maryland corporation, JOHMAR LEASING COMPANY, LLC, a Maryland limited liability company, and XXXXXX TRANSPORTATION SYSTEMS, INC., a Maryland corporation
Borrower 0000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Address: Phoenix, AZ 85027
Bank: COMMERCE BANK OF ARIZONA, INC., an Arizona corporation
Bank 00000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Address: Scottsdale, AZ 85254
RECITALS:
A.Bank has extended to Borrower a loan (the “Loan”) in the original principal amount of $17,033,000 pursuant to that certain Loan Agreement dated as of December 14, 2020 (as amended, the “Loan Agreement”), and evidenced by that certain Promissory Note dated December 14, 2020 (as amended, the “Note”). The unpaid principal balance of the Loan as of the date hereof is $17,244,181.43.
B.The Loan is secured by, among other things, (i) that certain Security Agreement dated December 14, 2020 (the “Security Agreement”), by Xxxxxxxx, as debtor, for the benefit of Bank, as secured party; (ii) that certain Deed of Trust and Fixture Filing (With Assignment of Rents and Security Agreement) dated February 26, 2021 (the “Maricopa County Deed of Trust”), by Environmental Alternative Fuels, LLC, a Delaware limited liability company (“EAF”), as trustor, for the benefit of Bank, as beneficiary, recorded on March 3, 2021, as Document No. 20210238822, Official Records of Maricopa County, Arizona; (iii) that certain Deed of Trust and Fixture Filing (With Collateral Assignment of Rents and Security Agreement) dated February 26, 2021 (the “Bexar County Deed of Trust”), by EAF, as trustor, for the benefit of Bank, as beneficiary, recorded on March 3, 2021, as Document No. 20210054809, Official Public Records of Bexar County Clerk, Texas; (iv) that certain Deed of Trust and Fixture Filing (With Collateral Assignment of Rents and Security Agreement) dated February 26, 2021 (the “Tarrant County Deed of Trust”), by EAF, as trustor, for the benefit of Bank, as beneficiary, recorded on March 3, 2021, as Document No. D221056790, Official Records of Tarrant County, Texas; and (v) that certain Mortgage and Fixture Filing (With Assignment of Rents and Security Agreement) dated February
26, 2021 (the “Milwaukee County Mortgage”), by EAF, as mortgagor, for the benefit of Bank, as mortgagee, recorded on March 5, 2021, as Document No. 11086756, Official Records of Milwaukee County, Wisconsin (the agreements, documents, and instruments securing the Loan and the Note are referred to individually and collectively as the “Security Documents”).
C.Borrower and Bank have previously modified the Loan Agreement and Note pursuant to the terms of that certain Modification Agreement dated as of December 22, 2020, that certain Second Modification Agreement dated as of December 23, 2020, and that certain Third Modification Agreement dated as of April 19, 2023 (collectively, the “Modification Agreement”). The Note, the Loan Agreement, the Security Documents, any environmental indemnity agreement, and all other agreements, documents, and instruments evidencing, securing, or otherwise relating to the Loan, as modified by the Modification Agreement, are sometimes referred to individually and collectively as the “Loan Documents.”
D.Xxxxxxxx has requested that Bank modify the Loan and the Loan Documents as provided herein. Bank is willing to so modify the Loan and the Loan Documents, subject to the terms and conditions of this Fourth Modification Agreement (this “Agreement”). Except as otherwise provided in this Agreement, all terms defined in the Loan Documents shall have the same meaning when used in this Agreement. Such defined terms are denoted in the Loan Documents and in this Agreement by initial capital letters.
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Bank agree as follows:
Borrower acknowledges the accuracy of the Recitals.
2.MODIFICATION OF LOAN DOCUMENTS.
2.1The Loan Documents are hereby modified as follows:
2.1.1The definition of LIBOR Index set forth in the Loan Agreement is hereby deleted.
2.1.2The Applicable Margin set forth in the Statement of Terms is hereby deleted and replaced with the following:
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Applicable Margin: |
25 basis points per annum. |
2.1.3The definition of Interest Rate set forth in Section 1.1 of the Loan Agreement is hereby deleted and replaced with the following:
“Interest Rate” means the rate of interest equal to the sum of (a) the Applicable Margin plus (b) the Prime Rate. Such interest rate will change once every third month on the fifth day of the month (a “Change Date”) and will be the Prime Rate on the day which is two Banking Days prior to the Change Date.
2.1.4The following definition of Prime Rate is hereby added to Section 1.1 of the Loan Agreement:
“Prime Rate” means the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the United States. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by Bank) or any similar release by the Federal Reserve Board (as determined by Bank).
2.1.5Section 2.1.1(c) of the Loan Agreement is hereby deleted and replaced with the following:
(c) Loan Interest. Interest on the Loan shall accrue from the disbursement thereof at the Interest Rate. The Interest Rate is a variable rate subject to change from time to time based on changes in the Prime Rate. The Interest Rate as determined by application of the Prime Rate is to be strictly interpreted and the Prime Rate is not intended to serve any purpose other than providing an index to determine the Interest Rate. Bank’s Prime Rate may not necessarily be the same as the quoted prime rate offered by any particular institution or service applicable to any interest period. Bank will tell Borrowers the current Prime Rate upon any Borrower’s request. Borrowers understand that Bank may make loans based on other rates as well.
2.1.6Section 2.10 of the Loan Agreement is hereby deleted in its entirety and replaced with “Intentionally Deleted.”
2.1.7The amendments of terms, provisions and definitions applicable to the calculation and accrual of interest on the Loan shall have prospective application from and after July 1, 2023, and shall not affect the calculation of interest that accrued on the Loan prior to the date of this Agreement. Accrual of interest at the modified Interest Rate will commence on July 1, 2023, and the next Change Date with respect to the modified Interest Rate will be September 5, 2023.
2.1.8Bank and Xxxxxxxx acknowledge that, per an email dated May 4, 0000, Xxxx Xxxxxx SPV has waived both the past due and future delivery of financial statements from EVO Holding Company LLC, and Johmar Leasing Company, LLC.
2.2Each of the Loan Documents is modified to provide that it shall be a default or an event of default thereunder if Borrower shall fail to comply with any of the covenants of Borrower herein or if any representation or warranty by Borrower herein is materially incomplete, incorrect, or misleading as of the date hereof.
2.3Each reference in the Loan Documents to any of the Loan Documents shall be a reference to such document as modified herein.
3.RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.
The Loan Documents are ratified and affirmed by Xxxxxxxx and shall remain in full force and effect as modified herein. Any property or rights to or interests in property granted as security in the Loan Documents shall remain as security for the Loan and the obligations of Borrower in the Loan Documents.
4.BORROWER REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Bank:
4.1No default or event of default under any of the Loan Documents as modified herein, nor any event, that, with the giving of notice or the passage of time or both, would be a default or an event of default under the Loan Documents as modified herein has occurred and is continuing, except for any Unmatured Events of Default or Events of Default relating to the obligations described in Section 5.2 of the Loan Agreement.
4.2There has been no material adverse change in the financial condition of Borrower from the most recent financial statement received by Bank.
4.3Each and all representations and warranties of Borrower in the Loan Documents are accurate on the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation or warranty is true and correct as of such specific date), except for any representations and warranties of Borrower in the Loan Documents or Material Contracts that relate to (a) the delivery of financial statements by Guarantor or any of its Subsidiaries as described in Section 5.2 of the Loan Agreement or (b) delivery of notices of changes that have been publicly disclosed by Guarantor or any of its Subsidiaries and filed with the Securities and Exchange Commission and posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX).
4.4Borrower has no claims, counterclaims, defenses, or set‑offs with respect to the Loan or the Loan Documents as modified herein.
4.5The Loan Documents as modified herein are the legal, valid, and binding obligation of Borrower, enforceable against Borrower in accordance with their terms.
4.6Borrower is validly existing under the laws of the State of its formation or organization and has the requisite power and authority to execute and deliver this Agreement and to perform the Loan Documents as modified herein. The execution and delivery of this Agreement and the performance of the Loan Documents as modified herein have been duly authorized by all requisite action by or on behalf of Xxxxxxxx. This Agreement has been duly executed and delivered on behalf of Xxxxxxxx.
4.7No default or event of default in respect of the Junior Obligations (as defined in the Subordination Agreement) or under the Subordination Agreement, nor any event, that, with the giving of notice or the passage of time or both, would be a default or an event of default under the Subordination Agreement has occurred and is continuing, except those that relate to (a) the delivery of financial statements, compliance certificates or insurance reports of the Guarantor or any of its subsidiaries or (b) delivery of notices of changes that have been publicly disclosed by Guarantor or any of its Subsidiaries and filed with the Securities and Exchange Commission and posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX).
4.8The execution, delivery, and performance by Borrower of this Agreement will not conflict with or result in a violation of or a default under the Subordination Agreement. The execution, delivery, and performance by Borrower of this Agreement will not conflict with or result in a violation of or a default under any other subordination or intercreditor agreement entered
into by any other lender with respect to a loan to any Borrower, and no authorization, approval or other action by, and no notice to, any other lender is required for the due execution, delivery and performance by each Borrower of this Agreement.
Borrower covenants with Bank:
5.1Borrower shall execute, deliver, and provide to Bank such additional agreements, documents, and instruments as reasonably required by Bank to effectuate the intent of this Agreement.
5.2Borrower fully, finally, and forever releases and discharges Bank and its successors, assigns, directors, officers, employees, agents, and representatives from any and all actions, causes of action, claims, debts, demands, liabilities, obligations, and suits, of whatever kind or nature, in law or equity, that Borrower has or in the future may have, whether known or unknown, in respect of the Loan, the Loan Documents, or the actions or omissions of Bank in respect of the Loan or the Loan Documents arising from events occurring prior to the date of this Agreement.
5.3Contemporaneously with the execution and delivery of this Agreement, Xxxxxxxx has paid to Bank:
5.3.1All principal and accrued and unpaid interest now due and payable under the Note and all amounts, other than interest and principal, now due and payable by Borrower under the Loan Documents as of the date hereof.
5.3.2All of the internal and external costs and expenses incurred by Bank in connection with this Agreement (including, without limitation, inside and outside attorneys, appraisal, appraisal review, processing, title, filing, and recording costs, expenses, and fees).
6.EXECUTION AND DELIVERY OF AGREEMENT BY BANK.
Bank shall not be bound by this Agreement until each of the following shall have occurred: (a) Bank has executed and delivered this Agreement, (b) Borrower has performed all of the obligations of Borrower under this Agreement to be performed contemporaneously with the execution and delivery of this Agreement, and (c) each Guarantor of the Loan has executed and delivered to Bank a Consent and Agreement of Guarantor(s).
7.ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER.
The Loan Documents as modified herein contain the entire understanding and agreement of Borrower and Bank in respect of the Loan and supersede all prior representations, warranties, agreements, arrangements, and understandings. No provision of the Loan Documents as modified herein may be changed, discharged, supplemented, terminated, or waived except in a writing signed by Bank and Borrower.
The Loan Documents as modified herein shall be binding upon, and inure to the benefit of, Borrower and Bank and their respective successors and assigns.
9.GOVERNING LAW; JURISDICTION; JURY WAIVER.
Each reference in the Loan Documents to any of the Loan Documents shall be a reference to such document as modified by this Agreement. Except as specifically amended by this Agreement, the Loan Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed and this Agreement shall not be considered a novation. Sections 7, 8.9, and 8.10 of the Loan Agreement are hereby incorporated by reference, mutatis mutandis, as if each such Section was set forth in full herein.
10.COUNTERPART EXECUTION.
This Agreement may be executed in one or more counterparts (and in electronic format, including .pdf), each of which shall be deemed an original and all of which together shall constitute one and the same document. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one document.
[Signature Page Follows]
DATED as of the date first above stated.
EVO HOLDING COMPANY, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Secretary
XXXXXX TRANSPORT, INC., a Maryland corporation
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Secretary
XXXX X. XXXXXX TRUCKING, INC., a Maryland corporation
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Secretary
JOHMAR LEASING COMPANY, LLC, a Maryland limited liability company
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Secretary
XXXXXX TRANSPORTATION SYSTEMS, INC., a Maryland corporation
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Secretary
“BORROWER”
Signature Page to Modification Agreement
Signature Page to Modification Agreement
COMMERCE BANK OF ARIZONA, INC., an Arizona corporation
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: SVP
“BANK”
Signature Page to Modification Agreement
CONSENT AND AGREEMENT OF GUARANTOR
With respect to the Fourth Modification Agreement dated as of June 15, 2023 (the “Agreement”), between EVO HOLDING COMPANY, LLC, a Delaware limited liability company, XXXXXX TRANSPORT, INC., a Maryland corporation, XXXX X. XXXXXX TRUCKING, INC., a Maryland corporation, JOHMAR LEASING COMPANY, LLC, a Maryland limited liability company, and XXXXXX TRANSPORTATION SYSTEMS, INC., a Maryland corporation (individually and collectively, “Borrower”), and COMMERCE BANK OF ARIZONA, INC., an Arizona corporation (“Bank”), the undersigned ( “Guarantor”) agree for the benefit of Bank as follows:
1.Guarantor acknowledges (a) receiving a copy of and reading the Agreement, (b) the accuracy of the Recitals in the Agreement, and (c) the effectiveness of that certain Continuing Guaranty of Payment dated as of December 14, 2020 (the “Guaranty”), by the undersigned for the benefit of Bank, as modified herein, and any other agreements, documents, or instruments securing or otherwise relating to the Guaranty, as modified herein. The Guaranty and such other agreements, documents, and instruments, as modified herein, are referred to individually and collectively as the “Guarantor Documents”. All capitalized terms used herein and not otherwise defined shall have the meaning given to such terms in the Agreement.
2.Guarantor consents to the modification of the Loan Documents and all other matters in the Agreement.
3.Guarantor fully, finally, and forever releases and discharges Bank and its successors, assigns, directors, officers, employees, agents, and representatives from any and all actions, causes of action, claims, debts, demands, liabilities, obligations, and suits of whatever kind or nature, in law or equity, that Guarantor has or in the future may have, whether known or unknown, in respect of the Loan, the Loan Documents, the Guarantor Documents, or the actions or omissions of Bank in respect of the Loan, the Loan Documents, or the Guarantor Documents arising from events occurring prior to the date hereof.
4.Guarantor agrees that all references, if any, to the Note, the Loan Agreement, the Deed of Trust, the Security Documents, and the Loan Documents in the Guarantor Documents shall be deemed to refer to such agreements, documents, and instruments as modified by the Agreement.
5.Guarantor reaffirms the Guarantor Documents and agrees that the Guarantor Documents continue in full force and effect and remain unchanged, except as specifically modified by this Consent and Agreement of Guarantor (this “Consent”). Any property or rights to or interests in property granted as security in the Guarantor Documents shall remain as security for the Guaranty and the obligations of Guarantor in the Guaranty.
6.Guarantor is validly existing under the laws of the State of its formation or organization and has the requisite power and authority to execute and deliver this Consent and to perform the Guarantor Documents as modified herein. The execution and delivery of this Consent and the performance of the Guarantor Documents as modified herein have been duly authorized by all requisite action by or on behalf of Guarantor. This Consent has been duly executed and delivered on behalf of Guarantor.
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7.Guarantor represents and warrants that the Loan Documents, as modified by the Agreement, and the Guarantor Documents, as modified by this Consent, are the legal, valid, and binding obligations of Borrower and the undersigned, respectively, enforceable in accordance with their terms against Borrower and the undersigned, respectively.
8.Guarantor represents and warrants that Guarantor has no claims, counterclaims, defenses, or off sets with respect to the enforcement against Guarantor of the Guarantor Documents.
9.Guarantor represents and warrants that there has been no material adverse change in the financial condition of any Guarantor from the most recent financial statement received by Bank.
10.GOVERNING LAW; JURISDICTION. The Guarantor Documents shall be governed by the laws of the State of Arizona, without giving effect to conflict of laws principles. If, notwithstanding this Section 10, at any time the law of any jurisdiction other than the State of Arizona is determined to be applicable to the Guarantor Documents, then to the maximum extent permitted by law, Guarantor expressly waives any and all benefits of the law and rules of such jurisdiction that conflict with any provision of the Guarantor Documents.
11.JURY WAIVER. GUARANTOR WAIVES, AND, BY ACCEPTING THIS CONSENT, BANK SHALL BE DEEMED TO WAIVE, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER THE GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (B) ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THE GUARANTY, AND GUARANTOR AGREES, AND, BY ACCEPTING THE GUARANTY AND THIS CONSENT, BANK SHALL BE DEEMED TO AGREE, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
12.Guarantor agrees that this Consent may be executed in one or more counterparts (and in electronic format, including .pdf), each of which shall be deemed an original and all of which together shall constitute one and the same document. Signature and acknowledgment pages may be detached from the counterparts and attached to a single copy of this Consent to physically form one document.
[Signature Page Follows]
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DATED as of the date of the Agreement.
EVO TRANSPORTATION & ENERGY SERVICES, INC., a Delaware corporation
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Secretary
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