EXHIBIT 10.7
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT is made and entered into as of
the 29th day of May, 1998, by and between XXXXXXXXX MOBILE FUELING, INC., A
Florida corporation, XXXXXXXXX REALTY, INC., a Florida corporation, and
XXXXXXXXX WEST, INC., a California corporation (hereinafter collectively
referred to as "Borrower"), and BANKATLANTIC, a Federal Savings Bank
(hereinafter referred to as "Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender previously entered into that
certain Loan Agreement dated as of December 30, 1997 (the "Loan Agreement");
WHEREAS, the Borrower has requested, and Lender has agreed, to modify
certain financial and other covenants, subject the terms and conditions
contained herein and in the Loan Agreement; and
WHEREAS, the parties hereto wish to amend the Loan Agreement as
provided herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the loans
or extensions of credit heretofore, now or hereafter made or to be made for the
benefit of the Borrower by the Lender, the parties do hereby agree as follows:
1. The Borrower and the Lender agree that the recitals set forth above
are true, correct, and complete, and are hereby incorporated herein.
2. All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement.
3. Subparagraph (C) of Section 2.4 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(C) The Security and Cash Collateral Account Agreement, in
form and substance satisfactory to Lender and Lender's Counsel. It is
acknowledged that on or before February 1, 1999, Borrower and Lender
shall enter into a Security, Cash Collateral and Lockbox Agreement
whereby and wherunder Borrower shall direct all account debtors to
remit all payments to a lockbox to be maintained with and administered
by Lender, with such collections to be deposited into the Cash
Collateral Account, to be applied against the Loan facility balance.
4. Section 8.4 of the Loan Agreement is hereby amended and restated so that,
from and after the date hereof, it shall read in its entirely as follows:
8.4 The Borrower shall maintain the Cash Collateral Account,
into which all payments and other proceeds of Receivables will be
deposited by Borrower. It is acknowledged that on or before February 1,
1999, Borrower and Lender shall enter into a Security, Cash Collateral
and Lockbox Agreement whereby and wherunder Borrower shall direct all
acount debtors to remit all payments to a lockbox to be maintained with
and administered by Lender, with such collections to be deposited into
the Cash Collateral Account, to be applied against the Loan facility
balance.
5. Section 8.5 of the Loan Agreement is hereby amended and restated so
tha, from and after the date hereof, it shall read in its entirety as follows:
8.5 The Borrower shall allow Lender to conduct audits of the
Borrower's books and records (and to make copies and expracts
therefrom), including an audit confirmation of accounts receivable
balances and ownership interest in the inventory, assets and business
properties of Borrower. The above set forth audits, examinations and
inspections shall be conducted not less than one (1) time in each month
in each fiscal year of Borrower. Said audits shall be performed at the
sole cost and expense of Borrower. The current per diem for said audits
is Four Hundred Twenty and 00/100 Dollars ($420.00) per day, plus
expenses, subject to change at any time. The frequency of the foregoing
audits may be adjusted by Lender at any time in Lender's sole
discretion.
6. Section 8.7 of the Loan Agreement is hereby amended and restated so
tha, from and after the date hereof, it shall read in its entirety as follows:
8.7 Xxxxxxxxx Mobile shall maintain a debt to worth ratio of
not more than 3.5 to to 1 through October 31, 1998, such ratio to be
tested at the end of each quarter of each fiscal year of Xxxxxxxxx
Mobile. The debt to worth ratio shall be adjusted at the end of each
quarter in each fiscal year of Xxxxxxxxx Mobile therafter based upon
Xxxxxxxxx Mobile's annual projections for the period in question.
7. Section 8.23 of the Loan Agreement is herebyb amended and restated
so that, from and after the dat hereof, it shall read in its entirety as
follows:
8.23 Each Borrower shall maintain all of its business, company
and depository accounts with Lender during the term of the Loan. Notwithstanding
the foregoing, Borrower shall be entitled to maintain depository accounts with
financial institutions other than Lender in connection with Borrower's
operations in locations outside of the State of Florida. Additionally, Lender
acknowledges that Borrower currently maintains an investment account with Paid
Xxxxxx (the "Xxxxx Xxxxxx Account"). Borrower shall be permitted to keep no more
than Fifty Thousand Dollars ($50,000.00) in the Pain Xxxxxx Account at any time.
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8. Borrower shall, within ten (10) days after the date of this First
Amendment, transfer all funds in excess of Fifty Thousand dollars ($50,000.00)
in the Pain Xxxxxx Account to an account maintained with Lender.
9. The following Section 8.34 is hereby added to the Loan Agreement,
effective from and after the date hereof:
8.34 Borrower shall take all actions necessary to assure that
Borrower's computer based systems are able to operate and effectively process
data including dates on and after January 1, 2000. At the request of Lender,
Borrower shall provide Lender assurance acceptable to Lender of Borrower's Year
2000 compatibility. Borrower hereby covenantc and agrees that all of Borrower's
information systems, including without limitation all computer hardward and
software, networks, databases, and all other electronic date storage, retrieval
and computation hardward, software and devices of any kind (collectively, the
"Information Systems"), have been updated and modified and/or will be updated
and modified by such date as shall be determined by Lender in its sole and
absolute discretion, to accommodate and conform to the Year 2000 date change,
and are, and/or will be by such date as shall be determined by Lender in its
sole and absolute discretion, in full compliance with any and all federal, state
and local laws, regulations and ordinances relating to the same, whether now in
effect, or hereafter enacted (collectively, the "Information System Laws").
Borrower hereby agrees, unconditionally, absolutely, and
irrevocably, to indemnify, defend, and hold harmless Lender, its affiliates,
successors, assigns, and the officers, directors, employees, and agents of
Lender againsta and in respect of any loss, liability, cost, injury, expense, or
damage of any and every kind whatsoever (including without limitaiton, court
costs and attorneys' fees and expenses) which at any time or from time to time
may be suffered or incurred, directly or indirectly, in connection with, modify
its Informaiton Systems to accommodate and conform to the Year 2000 date change
and/or fully comply with all Information System Laws including, without
limitation, any losses, liabilities, damages, injuries, costs, expenses, or
claims asserted or arising under the Information System Laws, whether now know
or unknown.
10. Borrower represents and warrants to the Lender that (a) each
Borrower have previously furnished Lender with true and correct copies of its
Articles of Incorporation and Bylaws, and all amendments thereto through the
date hereof, as in effect on the date hereof, and (b) the Board of Directors of
each Borrower has approved this Amendment and the execution hereof by the
undesigned officer of each Borrower.
11. WAIVER AND RELEASE. AS A MATERIAL INDUCEMENT FOR THE LENDER TO
EXECUTE THIS AGREEMENT, EACH BORROWER DOES HEREBY RELEASE, WAIVE, DISCHARGE,
COVENANT NOT TO XXX, ACQUIT, SATISFY AND FOREVER DISCHARGE THE LENDER, ITS
OFFICERS, DIRECTORS EMPLOYEES, ATTORNEYS AND AGENTS AND ITS AFFILIATES AND
ASSIGNS FROM ANY AND DEMAND WHATSOEVER IN LAW OR IN EQUITY WHICH EACH BORROWER
EVER HAD, NOW HAS, OR WHICH ANY PERSONAL REPRESENTATIVE, SUCCESSOR, HEIR OR
ASSIGN OF EACH BORROWER HEREAFTER CAN, SHALL OR MAY HAVE AGAINST THE LENDER, ITS
OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, AND ITS AFFILIATES AND
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ASSIGNS, FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER,
THROUGHOUT THE DATE HEREOF. EACH BORROWER FURTHER EXPRESSLY COVENANTS WITH AND
WARRANTS UNTO THE LENDER AND ITS AFFILIATES AND ASSIGNS, THAT THERE EXIST NO
CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OR OFFSET AGAINST
THE LENDER OR THE OBLIGATION OF EACH BORROWER TO PAY THE LENDER ALL AMOUNTS
OWNING UNDER THE NOTE, THE OVERADVANCE NOTE, THE LOAN AGREEMENT AND ALL
ASSOCIATED LOAN DOCUMENTS AS AND WHEN THE SAME BECOME DUE AND PAYABLE.
12. REAFFIRMATION BY BORROWER. THE BORROWER ACKNOWLEDGES AND REAFFIRMS
THAT ALL WARRANTIES, REPRESENTATIONS, AFFIRMATIVE COVENANTS AND NEGATIVE
COVENANTS SET FORTH IN THE LOAN AGREEMENT REMAIN IN FULL FORCE AND EFFECT ON THE
DATE HEREOF AS IF MADE ON THE DATE HEREOF.
13. AMENDED AGREEMENT. THIS AGREEMENT AMENDS THE LOAN AGREEMENT, AND
THE BORROWER ACKNOWLEDGES AND AGREES THAT THE SECURITY INTEREST, RIGHTS DUTIES,
AND OBLIGATIONS OF THE BORROWER AND THE LENDER CREATED BY THE LOAN AGREEMENT ARE
NOT EXTINGUISHED, BUT ARE REAFFIRMED AND REMAIN IN FULL FORCE AND EFFECT AS
PROVIDED IN THE LOAN AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS
AND PROVISIONS OF THE LOAN AGREEMENT AND THE TERMS AND PROVISIONS OF THIS
AMENDMENT, THE TERMS AND PROVISIONS OF THIS AMENDMENT SHALL CONTROL AND PREVAIL.
INTENTIONALLY LEFT BLANK
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WAIVER OF JURY TRIAL. THE PARTIES DO HEREBY MUTUALLY, KNOWINGLY AND
WILLINGLY WAIVE THEIR RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS MADE AMONG
THEM, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL CLAIMS DEFENSES, COUNTERCLAIMS, CROSS-CLAIMS, THIRD
PARTY CLAIMS AND INTERVENOR'S CLAIMS, WHETHER ARISING FROM OR RELATED TO THE
NEGOTIATION, EXECUTION AND PERFORMANCE OF THE TRANSACTIONS TO WHICH THE LOAN
AGREEMENT AND THE LOAN DOCUMENTS RELATE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Signed, Sealed and delivered in BORROWER:
the presence of:
XXXXXXXXX MOBILE FUELING, INC., a Florida
corporation
/S/ XXXXX XXXXXX By: /S/ XXXXXX X. XXXXXXX
XXXXXX X. XXXXXXX,
Vice President of Finance
/S/ XXXXX XXXXX (Corporate Seal)
XXXXXXXXX REALTY, INC.,
a Florida corporation
/S/ XXXXX XXXXXX By: /S/ XXXXXX X. XXXXXXX
/S/ XXXXX XXXXX XXXXXX X. XXXXXXX,
Vice President of Finance
(Corporate Seal)
XXXXXXXXX WEST, INC.,
a Florida corporation
/S/ XXXXX XXXXXX By: /S/ XXXXXX X. XXXXXXX
/S/ XXXXX XXXXX XXXXXX X. XXXXXXX,
Vice President of Finance
(Corporate Seal)
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