SUBORDINATION AGREEMENT
THIS
SUBORDINATION AGREEMENT executed effective as of the 1st day of October, 2005,
by, between and among XXXXXX XXXXX XXXXXX, XXXX XXX XXXXXX, XXXXXX XXXXXXXXX,
XXXXXXX X. XXXXXXXXX XX, X. X. XXXXXXXXX TESTAMENTARY TRUST, XXXXXXXXX
DISTRIBUTING COMPANY, INC., a Texas corporation and W & H INTERESTS ("Loan
Holders"), WACHOVIA BANK, NATIONAL ASSOCIATION, successor by merger to CONGRESS
FINANCIAL CORPORATION (FLORIDA) ("Lender"), and XXXXXXXXX MOBILE FUELING, INC.,
a Florida corporation ("Obligor").
WITNESSETH:
WHEREAS,
the Lender and Obligor have entered into that certain Loan and Security
Agreement dated September 26, 2002, as amended, and certain other loan documents
in connection therewith (collectively, the "Loan Documents") which provide
to
Lender a first priority security interest in certain assets of Obligor whether
now owned or hereafter acquired, and provides for the extending by Lender to
Obligor of a loan and/or loans up to the maximum limit of Twenty Million and
00/100 Dollars ($20,000,000) (collectively the "Loan" or the "Loans");
and
WHEREAS,
Obligor, the Loan Holders and H&W Petroleum Company, Inc. ("H&W") have
entered into that certain Stock Purchase Agreement dated September 7, 2005
(the
"SPA") which provides for Obligor's purchase of all of the outstanding shares
of
H&W's capital stock from the Loan Holders, and provides for payment of a
portion of the purchase price for such stock by Obligor's delivery of a
promissory note (the "Note") (the loan evidenced by the Note, and the
obligations and agreements of Obligor in accordance with the terms of the SPA
and any related documents, together with any present or future indebtedness
or
obligations of Obligor to Loan Holders of every kind and description, direct
or
contingent, due or not due, original, renewed or extended and whether now in
existence or hereafter arising in connection with the Note or the SPA
hereinafter collectively referred to as the "Subordinated Debt");
and
WHEREAS,
Obligor has requested that Lender consent to the Subordinated Debt and add
H&W as a co-borrower under the Loans and Loan Documents, providing to Lender
a first priority security interest (together with the security interest granted
to Lender by Obligor, hereinafter collectively referred to as "Lender's Security
Interest") in
the
property
of
H&W which is encumbered by the Loan Documents (together with the collateral
provided to Lender by Obligor, hereinafter collectively referred to as the
"Collateral"; and
WHEREAS,
as creditors of the Obligor, the Loan Holders will benefit as a result of the
Lender continuing to make the Loans available to Obligor and making the Loans
available to H&W;
and
WHEREAS,
the Loan Holders acknowledge that the Lender is willing to continue to make
the
Loans available to Obligor and to make the Loans available to H&W only on
the condition that the Note and the Subordinated Debt be subordinate and
inferior to the Loan, and to all other indebtedness of Obligor to Lender,
whether now in existence or hereafter created; and
WHEREAS,
the Loan Holders have agreed to subordinate the Note and Subordinated Debt
to
the lien and effect of the Loan and Lender's Security Interest and all security
instruments securing the Loan, and all other indebtedness of Obligor to Lender
of every kind and description, direct or contingent, due or not due, secured
or
unsecured, original, renewed or extended, whether now in existence or hereafter
arising; and
WHEREAS,
the Loan Holders acknowledge that Lender would not continue the Loans to Obligor
or effectuate the Loans to H&W without the execution of this Agreement by
the Loan Holders; and
NOW,
THEREFORE, in consideration of, and as an inducement to Lender to continue
to
make the Loans to Obligor and make the Loans to H&W, the Loan Holders,
Lender and Obligor do hereby agree as follows:
1. The
facts
as set forth above are true and correct and are incorporated herein by reference
(except that the Loan Holders have no knowledge, and accordingly make no
representation, as to the accuracy of the facts stated in the first
(1st)
and
third (3rd)
recitals set forth above).
2. Each
of
the Loan Holders and Obligor (severally and not jointly) do hereby warrant
and
represent that the SPA and
the
Note specify
the only
indebtedness and obligations which are due, owing or contemplated from Obligor
to the Loan Holders, or any of them.
3. Each
of
the Loan Holders do hereby unconditionally subordinate the Note and the
Subordinated Debt to the Loan and all other present and future debts and
obligations of the Obligor to Lender, said indebtedness including all
obligations of the Obligor to Lender of every kind and description, direct
or
contingent, due or not due, secured or unsecured, original, renewed or extended,
whether now in existence or hereafter arising, and to the lien and effect of
Lender's Security Interest in and to the Collateral and to all Loan Documents
and all other debts and obligations of the Obligor to Lender.
4. Each
of
the Loan Holders and Obligor (severally and not jointly) do hereby warrant,
represent and agree that no payment (principal, interest or any other payment)
shall be made, permitted or accepted under the Note or Subordinated Debt (or
under any other document or agreement) during the term of the Loan, unless
such
payment(s) have been approved in advance by the Lender. If any payment is made
to any of the Loan Holders in payment of the Note or the Subordinated Debt
or
otherwise, or if any security or proceeds thereof is received on account of
the
Note or the Subordinated Debt contrary to the terms of this Agreement, Obligor
agrees that the same shall be and constitute an Event of Default. Each of the
Loan Holders acknowledges that (i)
upon
the occurrence of an Event of Default, Lender shall be entitled to immediately
exercise all remedies provided to Lender in connection with the Collateral
and
under the Loan Documents, and (ii) following the occurrence of such Event of
Default and so long as the same shall be continuing, (A) each and every amount
paid by or on behalf of Obligor to any Loan Holder(s) or items received by
any
Loan Holder(s) (from Obligor or from an individual or an entity on behalf of
Obligor) from and after such occurrence shall be forthwith paid by the Loan
Holders to Lender, in precisely the form received (except for the Loan Holders'
endorsements, where necessary), to be credited and applied, in Lender's sole
discretion, upon any indebtedness (principal and/or interest and/or otherwise
as
Lender may elect, in its sole discretion) then owing to Lender by Obligor,
and,
whether matured or unmatured, and, until so delivered, the same shall be held
in
trust by the Loan Holders as the property of Lender; and (B) in the event of
a
failure of any Loan Holder(s) to endorse any instrument for the payment of
monies so received by any Loan Holder(s) payable to such Loan Holder's order,
Lender, or any officer or employee of Lender, is hereby irrevocably constituted
and appointed attorney-in-fact (coupled with an interest) for such Loan
Holder(s), with full power to make any such endorsement and with full power
of
substitution.
2
5. Each
of
the Loan Holders agrees that it will not exercise any collection rights with
respect to the Note or Subordinated Debt, will not take possession of, sell
or
dispose of, or otherwise deal with any Collateral, and will not exercise or
enforce any right or remedy which may be available to it with respect to the
Note or Subordinated Debt upon default of Obligor under the Loan or any other
indebtedness of Obligor to Lender or under the Subordinated Debt until such
time
as the Loan, as the same may be modified from time to time, including all
principal, interest and other charges associated therewith, has been paid in
full and no other debts or obligations are due and owing from Obligor to Lender.
Each of the Loan Holders agrees to promptly notify Lender, in writing, by
certified mail, return receipt-requested, of any default by Obligor under the
Note or Subordinated Debt.
6. Upon
any
distribution of the assets or readjustment of indebtedness of Obligor whether
by
reason of reorganization, liquidation, dissolution, bankruptcy, receivership,
assignment for the benefit of creditors, or any other action or proceeding
involving the readjustment of all or any part of the Subordinated Debt or the
application of the assets of Obligor to the payment or liquidation thereof,
either in whole or in part, Lender shall be entitled to receive payment in
full
of any and all indebtedness under the Loan or otherwise then owing to Lender
by
Obligor prior to the payment of all or any of the Subordinated
Debt.
7. Each
of
the Loan Holders agrees that it shall not transfer, assign, encumber,
hypothecate or subordinate, at anytime while this Agreement remains in effect,
any right, claim or interest of any kind in or to any of the Subordinated Debt,
either principal or interest or otherwise, unless such transfer, encumbrance,
hypothecation or subordination is made upon prior written notice to Lender,
subject to this Subordination Agreement, and the transferee or recipient has
expressly assumed the covenants and obligations contained herein; and provided
further that there shall promptly be placed on the Note a legend reciting that
the same is subject to this Agreement.
8. Each
of
the Loan Holders acknowledges that Lender may, at any time, in its discretion,
renew or extend the time of payment of all or any portion of the Loan, or any
other existing or future indebtedness or obligations of Obligor to Lender and/or
waive or delay in enforcing any rights or release any collateral relative
thereto at any time(s) and, in reference thereto, to modify or amend the Loan
Documents and/or make and enter into such agreement(s), compromise(s) and other
indulgence(s), as Lender may deem proper or desirable, without notice to or
further assent of any of the Loan Holders, all without in any manner impairing
or affecting this Agreement or any of Lender's rights hereunder.
3
9. Each
of
the Loan Holders hereby agrees that it will render to Lender, upon demand,
from
time to time, a statement of the account of the Loan Holders with Obligor.
Obligor agrees to duly comply with and conform with each and every term of
this
Agreement, on its part required to be performed.
10. All
notices, demands and communications given or made hereunder or pursuant hereto
shall be in writing and shall be hand delivered, delivered by recognized
expedited carrier, or mailed by registered or certified mail with postage
prepaid, addressed in each case as follows and shall be deemed to have been
given or made when so mailed:
To Loan Holders: |
E.
Xxxxx Xxxxxx
|
c/o
H&W Petroleum Company, Inc.
0000
Xxxxxxxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
Facsimile
No.: (000) 000-0000
To Lender: | WACHOVIA BANK, NATIONAL ASSOCIATION |
000
Xxxx
Xxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxxx
Xxxxxxxxxx, XX 00000
Attention:
Portfolio Manager
To Obligor: | XXXXXXXXX MOBILE FUELING, INC. |
000
Xxxx
Xxxxxxx Xxxxx Xxxx
Xxxxx
000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxxxxxxx, President
or
to
such other address or to such other person as any party shall designate to
the
others for such purposes in the manner hereinabove set forth.
11. This
Agreement may be signed in multiple counterparts, and each such counterpart
shall have the same binding force and effect as if it were signed by all parties
hereto.
12. This
Agreement shall be governed by the laws of the State of Florida. The terms
of
this Agreement cannot be waived, changed or terminated, except by a written
document signed by Lender. This Agreement shall be binding upon the undersigned
and their successors and assigns and shall inure to the benefit of and shall
be
enforceable by Lender, and any participants, successors or assigns of
Lender.
4
13. WAIVER
OF
JURY TRIAL. OBLIGOR, EACH LOAN HOLDER AND LENDER HEREBY MUTUALLY, KNOWINGLY,
WILLINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE THEIR RIGHT TO TRIAL BY JURY
AND
NO PARTY NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE
PARTIES (ALL OF WHOM ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE "PARTIES")
SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
LITIGATION PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE LOAN
DOCUMENTS OR ANY INSTRUMENT EVIDENCING, SECURING OR RELATING TO THIS AGREEMENT
OR THE LOAN DOCUMENTS, THE INDEBTEDNESS OR OTHER OBLIGATIONS REFERRED TO HEREIN
OR ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR THE
INDEBTEDNESS REFERRED TO HEREIN OR ANY COURSE OF ACTION, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS RELATING TO THE LOAN OR TO
THIS
AGREEMENT. THE PARTIES ALSO WAIVE ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH
A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS
NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
THE
PARTIES. THE WAIVER CONTAINED HEREIN IS IRREVOCABLE, CONSTITUTES A KNOWING
AND
VOLUNTARY WAIVER, AND SHALL BE SUBJECT TO NO EXCEPTIONS. LENDER HAS IN NO WAY
AGREED WITH OR REPRESENTED TO THE LOAN HOLDERS OR ANY OTHER PARTY THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
IN
WITNESS WHEREOF, the undersigned have executed this Subordination Agreement
as
of the date first written above.
LOAN
HOLDERS:
/s/
Xxxxxx Xxxxx
Xxxxxx
XXXXXX
XXXXX XXXXXX
/s/
Xxxx Xxx
Xxxxxx
XXXX
XXX
XXXXXX
/s/
Xxxxxx
Xxxxxxxxx
XXXXXX
XXXXXXXXX
/s/
Xxxxxxx X. Xxxxxxxxx
XX
XXXXXXX
X. XXXXXXXXX XX
XXXX
XXXXXXXXX XXXXXXXXX
By:
/s/
Xxxx Xxx
Xxxxxx
Xxxx Xxx Xxxxxx, her attorney-in-fact
5
X.
X.
XXXXXXXXX TESTAMENTARY TRUST
By:
/s/
Xxxxxxx X. Xxxxxxxxx
XX
Name:
Xxxxxxx X. Xxxxxxxxx XX
Title:
Trustee
By:
/s/
Xxxxxx
Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title:
Trustee
By:
/s/
Xxxx Xxx
Xxxxxx
Name:
Xxxx Xxx Xxxxxx
Title:
Trustee
XXXXXXXXX
DISTRIBUTING COMPANY, INC.
By:
/s/
Xxxxxxx X. Xxxxxxxxx
XX
Name:
Xxxxxxx X. Xxxxxxxxx XX
Title:
President
W
&
H
INTERESTS
By:
/s/
X.X.
Xxxxxx
Name:
X.X. Xxxxxx
Title:
Partner
6
STATE OF TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxxxx Xxxxx Xxxxxx, who ý
is
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxx Xxx Xxxxxx, who ý
is
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxxxx Xxxxxxxxx, who ý
is
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
0
XXXXX
XX
XXXXX
XXXXXX
XX
XXXXXX
The
foregoing instrument was acknowledged before me this 1st
day of
Oct, 2005, by Xxxxxxx X. Xxxxxxxxx XX, who ý
is
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxx Xxx Xxxxxx, who ý
is
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxxxxx X. Xxxxxxxxx XX, Xxxxxx Xxxxxxxxx, Xxxx Xxx Xxxxxx on behalf of X.X.
Xxxxxxxxx Testamentary Trust, who ois
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
0
XXXXX
XX
XXXXX
XXXXXX
XX
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxxxxx X. Xxxxxxxxx, who ý
is
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
X.X. Xxxxxx, who ý
is
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
9
LENDER:
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
|
|
|
By:
/s/
Name:
Title:
|
STATE
OF
COUNTY
OF
The
foregoing instrument was acknowledged before me this ___ day of ________, 2005,
by _________________________, as ____________________ of and on behalf of
WACHOVIA BANK, NATIONAL ASSOCIATION, who ois
personally known to me or oproduced
his/her driver's license as identification.
/s/
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
OBLIGOR: | XXXXXXXXX MOBILE FUELING, INC. |
|
|
By:
/s/Xxxxxxx
X.
Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
President
and Chief Executive Officer
|
STATE
OF
Texas
COUNTY
OF
Xxxxxx
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
XXXXXXX X. XXXXXXXXX, as President and Chief Executive Officer of and on behalf
of XXXXXXXXX MOBILE FUELING, INC., a Florida corporation, who ois
personally known to me or oproduced
his/her driver's license as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
10
JOINDER
OF LOAN HOLDER OWNERS
The
undersigned owners of Xxxxxxxxx Distributing Company, Inc. of the Loan Holders
hereby agree that, to the extent that any of the indebtedness and obligations
under the Note or other Subordinated Debt is or becomes owed to them, or any
of
them, such indebtedness and obligations are and shall be subordinated to the
Loan and other debts and obligations of Obligor to Lender, all in the same
manner and subject to the same terms as apply, pursuant to this Subordination
Agreement, to the Note and other Subordinated Debt owing to the Loan
Holders.
/s/Xxxxxx
Xxxxxxxxx
/s/Xxxxxxx
X. Xxxxxxxxx
XX
|
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxxxx Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx XX, Xxxx Xxx Xxxxxx, who oare
personally known to me or oproduced
their driver’s licenses as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
11
JOINDER
OF LOAN HOLDER OWNERS
The
undersigned owners of W & H Interests of the Loan Holders hereby agree that,
to the extent that any of the indebtedness and obligations under the Note or
other Subordinated Debt is or becomes owed to them, or any of them, such
indebtedness and obligations are and shall be subordinated to the Loan and
other
debts and obligations of Obligor to Lender, all in the same manner and subject
to the same terms as apply, pursuant to this Subordination Agreement, to the
Note and other Subordinated Debt owing to the Loan Holders.
/s/Xxxxxx
Xxxxxxxxx
/s/Xxxxxxx
X. Xxxxxxxxx
XX
/s/X.X.
Xxxxxx
/s/Xxxx
Xxx
Xxxxxx
|
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
The
foregoing instrument was acknowledged before me this 1st day of Oct, 2005,
by
Xxxxxx Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx XX, X.X. Xxxxxx, Xxxx Xxx Xxxxxx, who
ý
are
personally known to me or oproduced
their driver’s licenses as identification.
/s/Xxxxxxxx
Xxxxxxxx
NOTARY
PUBLIC-State and County Aforesaid
Print/Type/Stamp
Name:
Commission
Expiration Date:
Notary
Seal:
|
12