SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
[EXECUTION]
SEVENTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS
SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Seventh Amendment"),
made
and entered into as of the 26th day of September, 2006, by and among Xxxxxxxxx
Mobile Fueling, Inc., a Florida corporation (hereinafter referred to as
"Fueling"), SMF Services, Inc., a Delaware corporation (hereinafter referred
to
as "Services"), H & W Petroleum Company, Inc., a Texas corporation
(hereinafter referred to as "H & W" and, collectively with Fueling and
Services, as "Borrower") and Wachovia Bank, National Association, successor
by
merger to Congress Financial Corporation (Florida) (hereinafter referred to
as
"Lender").
RECITALS
A. On
September 26, 2002, Fueling 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 Fueling.
B. Fueling
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 Fueling and modifying certain defined terms in the
Agreement.
C. Fueling
and Lender executed a Second Amendment to Loan and Security Agreement dated
as
of August 29, 2003 (the “Second Amendment”), (1) permitting Fueling 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. Fueling
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. Fueling,
Services and Lender executed a Fourth Amendment to Loan and Security Agreement
dated as of February 18, 2005 (the "Fourth Amendment"), adding Services 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. Fueling,
Services, H & W and Lender executed a Fifth Amendment to Loan and Security
Agreement dated as of October 1, 2005 (the "Fifth Amendment"), adding H & W
as an additional borrower under the Revolving Loans, extending the term of
the
Agreement, increasing the Maximum Credit amount for the Revolving Loans, adding
certain inventory to the Borrowing Base, decreasing the applicable Interest
Rate, and modifying certain covenants and other terms of the
Agreement.
G. Borrower
and Lender executed a Sixth Amendment to Loan and Security Agreement effective
as of March 31, 2006 (the "Sixth Amendment"), (1) adding (a) an Interest Rate
option based on the London interbank offered rate, and (b) certain leased
Vehicles and Equipment to the Excluded Assets from the Collateral, and (2)
amending the Capital Expenditures covenant of the Agreement.
H. Borrower
and Xxxxxxxxx Realty, Inc., a Florida corporation, have requested that Lender
increase the Maximum Credit amount for the Revolving Loans and modify the
covenant in the Agreement which limits Borrower's loans and advances to other
persons, 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, the Fourth Amendment, the Fifth Amendment and
the Sixth 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, the Fourth Amendment, the Fifth Amendment
and the Sixth Amendment.
3. Borrower
confirms and acknowledges that the balance due Lender under the Revolving Loans
as of the close of business on September 21, 2006 was the principal amount
of
$13,608,844.46 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):
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(a)
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In
Section 1.45, the amount "$25,000,000.00" is substituted in lieu
of the
amount "$20,000,000.00".
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(b)
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At
the end of Section 9.10, a semi-colon is substituted in lieu of the
period
at the end of subsection (g), and subsection (h), reading as follows,
is
added immediately following such
semi-colon:
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(h) loans
and
advances made to customers of Borrower for their purchases of certain
ChevronTexaco equipment utilized with the ChevronTexaco products sold by
Borrower and which qualify for ChevronTexaco's deferred revenue program;
provided, however, that the aggregate outstanding amount of such loans and
advances shall not, at any time, exceed $250,000.00.
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 Seventh
Amendment.
6. The
effectiveness of this Seventh Amendment is subject to satisfactory compliance
with conditions precedent requiring that Lender shall have
received:
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(a)
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all
requisite corporate action and proceedings in connection with this
Seventh
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;
and
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(b)
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such
additional documents, instruments and agreements as are required
hereunder
as well as those which Lender or its counsel may reasonably
request.
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7. As
partial consideration for Lender amending the Agreement as provided above,
Lender has fully earned a nonrefundable facility fee in the amount of
Twenty-Five Thousand Dollars ($25,000) which shall be paid to Lender
simultaneously with the execution of this Seventh Amendment, irrespective of
any
actual further funding under the Revolving Loans.
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 Seventh
Amendment and the related documentation referenced herein, and that no Default
or Event of Default shall have occurred and be continuing. Specifically, (a)
Fueling 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, (b) Services 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, and (c) H &
W represents and warrants that its Articles of Incorporation and Bylaws,
certified on October 1, 2005 were not amended on nor 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 Seventh 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 Seventh Amendment and this provision shall survive payment
in
full of all Obligations and termination of all Financing
Agreements.
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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 Seventh
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.
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 Seventh Amendment, the terms of this Seventh
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 Seventh 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 Seventh 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 Seventh 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
Seventh 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
Seventh 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 SEVENTH 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 SEVENTH AMENDMENT.
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[EXECUTION]
IN
WITNESS WHEREOF, the parties hereto have executed this Seventh 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 | ||
| |
|
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| 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) | ||
| |
|
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| By: | /s/ Xxx Xxxxxxxxx | |
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Name: Xxx Xxxxxxxxx |
||
| Title: Vice President | ||
[EXECUTION]
JOINDER
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 or any future amendment to the Agreement
but, nevertheless, consents to all terms and provisions of the Seventh Amendment
which are applicable to it, and agrees to be bound by and comply with such
terms
and provisions, and (3) acknowledges and confirms that its guarantee in
favor of Lender executed in connection with the 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 guarantee in connection with the Agreement, as modified
by the Seventh Amendment.
| GUARANTOR: | ||
| XXXXXXXXX REALTY, INC., a Florida corporation | ||
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
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Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: President and Chief Executive Officer | ||
