Excess Availability. Borrower shall maintain at all times Excess Availability as determined by Lender in an amount not less than $750,000. (f) Schedule A to the Loan Agreement is deleted in its entirety and replaced with Schedule A attached hereto. 5. Each and every reference to the Loan Agreement in the other Financing Agreements shall be deemed to refer to the Loan Agreement, as modified by this Tenth Amendment. 6. The effectiveness of the amendments contained in Section 4 and Section 5 of this Tenth Amendment is subject to satisfactory compliance with conditions precedent requiring that Lender shall have received: (a) copies of the final executed documents evidencing or securing the 11½% Senior Secured Convertible Notes due December 31, 2009, made by SMF in favor of certain noteholders with American National Bank as the indenture trustee (the "2007 Offering"), all in form and substance satisfactory to Lender; (b) all requisite corporate action and proceedings in connection with this Tenth 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 or its counsel may have requested in connection therewith, such documents, where requested to be certified by appropriate corporate officers or governmental authorities; and (c) such additional documents, instruments and agreements as are required hereunder as well as those which Lender or its counsel may reasonably request. 7. Notwithstanding any other provision of the Loan Agreement or the Prior Amendments, Lender agrees that the proceeds of the 2007 Offering shall be used first by Borrower to repay the Prior Indebtedness, including any unpaid principal, pre-payment penalties and accrued interest thereon. 8. Lender hereby waives any right under Article III of the Indenture for the January 2005 Indebtedness and under Article III of the Indenture for the September 2005 Indebtedness to require the full forty five (45) days notice of the redemption of the January 2005 Indebtedness and the September 2005 Indebtedness, respectively, with the proceeds of the 2007 Offering. 9. Borrower represents and warrants to Lender that, except as has been otherwise disclosed to Lender in writing, the representations and warranties contained in the Loan 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 Tenth Amendment and the related documentation referenced herein, and that no Default or Event of Default shall have occurred and be continuing. Specifically, (a) SMF represents and warrants that its Certificate of Incorporation and Bylaws, certified on February 14, 2007, were not amended on or subsequent to their aforesaid certification date, (b) SSI 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. 10. Borrower acknowledges and confirms that all Collateral furnished in connection with the Loan Agreement, except the Excluded Assets, continues to secure the Obligations and indebtedness thereunder, and the security interests and liens granted by the Borrower in the Collateral other than the Excluded Assets to Lender to secure the Obligations are duly perfected, first priority security interests and liens. 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 Tenth Amendment, including, without limitation, the reasonable 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 Loan Agreement, as hereby amended, and all related documents, instruments and agreements. 12. Except as expressly modified herein, all terms and provisions of the Loan Agreement, and all other documents, instruments and agreements executed and/or delivered in connection with the Loan Agreement, shall remain unchanged and in full force and effect; 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 Tenth Amendment nor any earlier waiver or amendment of the Loan Agreement will constitute a novation or have the effect of discharging any liability or obligation evidenced by the Loan Agreement or any other Financing Agreements. This Tenth 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 Loan 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 Tenth Amendment is part of the Loan 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 Tenth 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. Any manually-executed signature page to this Tenth Amendment delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature hereto. 15. Borrower agrees to take such further actions as Lender shall reasonably request from time to time in connection herewith to evidence or give effect to the amendments set forth herein or any of the transactions contemplated hereby. 16. This Tenth 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. 17. BORROWER HEREBY RELEASES AND FOREVER DISCHARGES 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, 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 TENTH 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 ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS TENTH AMENDMENT AND THIS PROVISION SHALL SURVIVE PAYMENT IN FULL OF ALL OBLIGATIONS AND TERMINATION OF ALL FINANCING AGREEMENTS. 18. LENDER AND BORROWER 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 TENTH AMENDMENT OR THE LOAN 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 TENTH AMENDMENT.
Appears in 1 contract
Excess Availability. Borrower shall maintain at all times Excess Availability as determined by Lender in an amount not less than than: (a) at all times on or before November 22, 2007, $750,000, (b) at all times during the period beginning on November 23, 2007 and ending on December 30, 2007, $500,000, and (c) at all times on and after December 31, 2007, $750,000.
(f) Schedule A to 4. Borrower hereby ratifies and reaffirms the Loan Agreement is deleted in its entirety Obligations, each of the Financing Agreements and replaced with Schedule A attached heretoall of Borrower's covenants, duties, indebtedness and liabilities under the Financing Agreements.
5. Each Borrower acknowledges and every reference stipulates, to induce Lender to enter into this Amendment, that the Loan Agreement in the other Financing Agreements shall be deemed to refer to the Loan Agreement, as modified by this Tenth Amendment.
6. The effectiveness of the amendments contained in Section 4 and Section 5 of this Tenth Amendment is subject to satisfactory compliance with conditions precedent requiring that Lender shall have received:
(a) copies of the final executed documents evidencing or securing the 11½% Senior Secured Convertible Notes due December 31, 2009, made by SMF in favor of certain noteholders with American National Bank as the indenture trustee (the "2007 Offering"), all in form and substance satisfactory to Lender;
(b) all requisite corporate action and proceedings in connection with this Tenth Amendment and the other Financing Agreements shall be satisfactory executed by Borrower are legal, valid and binding obligations of Borrower that are enforceable against Borrower in form and substance to Lender, and Lender shall have received accordance with the terms thereof; all information and copies of all documents, including records of requisite corporate action and proceedings which Lender or its counsel may have requested in connection therewith, such documents, where requested to be certified by appropriate corporate officers or governmental authorities; and
(c) such additional documents, instruments and agreements as are required hereunder as well as those which Lender or its counsel may reasonably request.
7. Notwithstanding any other provision of the Loan Agreement Obligations are owing and payable without defense, offset or counterclaim (and to the Prior Amendmentsextent there exists any such defense, Lender agrees that the proceeds of the 2007 Offering shall be used first by Borrower to repay the Prior Indebtedness, including any unpaid principal, pre-payment penalties and accrued interest thereon.
8. Lender hereby waives any right under Article III of the Indenture for the January 2005 Indebtedness and under Article III of the Indenture for the September 2005 Indebtedness to require the full forty five (45) days notice of the redemption of the January 2005 Indebtedness and the September 2005 Indebtedness, respectively, with the proceeds of the 2007 Offering.
9. Borrower represents and warrants to Lender that, except as has been otherwise disclosed to Lender in writing, the representations and warranties contained in the Loan Agreement and all related loan documentation are true and correct offset or counterclaim 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 Tenth Amendment and the related documentation referenced herein, and that no Default or Event of Default shall have occurred and be continuing. Specifically, (a) SMF represents and warrants that its Certificate of Incorporation and Bylaws, certified on February 14, 2007, were not amended on or subsequent to their aforesaid certification date, (b) SSI 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.
10. Borrower acknowledges and confirms that all Collateral furnished in connection with the Loan Agreement, except the Excluded Assets, continues to secure the Obligations and indebtedness thereunder, same is hereby waived by Borrower); and the security interests and liens granted by the Borrower in the Collateral other than the Excluded Assets to favor of Lender to secure the Obligations are duly perfected, first priority security interests and liens.
116. Borrower represents and warrants to Lender, to induce Lender to enter into this Amendment, that no Default or Event of Default exists on the date hereof; the execution, delivery and performance of this Amendment have been duly authorized by all requisite corporate action on the part of Borrower and this Amendment has been duly executed and delivered by Borrower; and except as may have been disclosed in writing by Borrower to Lender prior to the date hereof, all of the representations and warranties made by Borrower in the Loan Agreement are true and correct on and as of the date hereof.
7. In consideration of Lender's willingness to enter into this Amendment, Borrower hereby agrees to pay to Lender a nonrefundable amendment fee (the "Amendment Fee") in the amount of five thousand dollars ($5,000) in immediately available funds on the date hereof, which shall pay be fully earned on the date hereof. Additionally, to induce Lender to enter into this Amendment and grant the accommodations set forth herein, Borrower agrees to pay, on demand, all out-of-pocket costs and expenses incurred by Lender in connection with the preparation for preparation, negotiation and closing execution of the transaction contemplated under this Tenth AmendmentAmendment and any other Financing Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including, without limitation, the reasonable costs and fees of Lender's legal counsel and any taxes or expenses of special counsel for Lender. In addition, Borrower shall pay any and all taxes (together associated with interest and penalties, if any, applicable thereto) and fees, including, without limitation, documentary stamp taxes, now or hereafter required incurred in connection with any instrument or agreement referred to herein or contemplated hereby.
8. The effectiveness of the execution amendments to the Loan Agreement set forth in this Amendment is subject to the satisfaction of each of the following conditions precedent, in each case in form and delivery substance satisfactory to Lender:
(a) Lender shall have received duly executed and delivered counterparts of this Amendment from Borrower and Guarantor;
(b) Lender shall have received full payment of the Amendment Fee and the other amounts described in the preceding paragraph;
(c) Borrower shall have received all of the proceeds of the Subordinated Debt contemplated by Section 2 hereof, and Lender shall have received a fully-executed original counterpart of each Subordination Agreement contemplated by Section 2 of this Amendment with respect to such Subordinated Debt; and
(d) no Default or Event of Default shall exist or occur on the date hereof.
9. Upon the effectiveness of the amendments set forth in this Amendment, each reference in the Loan Agreement to "this Agreement," "hereunder," or words of like import shall mean and be a reference to the Loan Agreement, as hereby amended, and all related documents, instruments and agreementsamended by this Amendment.
12. Except as expressly modified herein, all terms and provisions of the Loan Agreement, and all other documents, instruments and agreements executed and/or delivered in connection with the Loan Agreement, shall remain unchanged and in full force and effect; 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 Tenth Amendment nor any earlier waiver or amendment of the Loan Agreement will constitute a novation or have the effect of discharging any liability or obligation evidenced by the Loan Agreement or any other Financing Agreements10. This Tenth 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 Loan 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 Tenth Amendment is part of the Loan 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, hereto and their respective successors and assigns.
11. This Amendment shall be governed by and construed in accordance with the internal laws of the State of Florida, except that Borrower without giving effect to its conflict of laws principles.
12. Except as otherwise expressly provided in this Amendment, nothing herein shall not have be deemed to amend or modify any provision of the right to assign its rights hereunder Loan Agreement or any interest of the other Financing Agreements, each of which shall remain in full force and effect. This Amendment is not intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the Loan Agreement as herein without the prior written consent of Lendermodified shall continue in full force and effect.
1413. This Tenth Amendment may be executed in any number of counterparts and by different parties hereto in to this Amendment on separate counterparts, each of which, when so executed, shall be deemed to be an original and shall be binding upon original, but all parties, their successors and assigns, and all of which taken together such counterparts shall constitute one and the same agreement. Any manually-executed signature page to this Tenth Amendment delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature page hereto. signatures commence on following page.
15. Borrower agrees to take such further actions as Lender shall reasonably request from time to time in connection herewith to evidence or give effect to ] To the amendments set forth herein or any of the transactions contemplated hereby.
16. This Tenth Amendment shall be governed by, and construed and interpreted in accordance withfullest extent permitted by applicable law, the laws parties hereto each hereby waives the right to trial by jury in any action, suit, counterclaim or proceeding arising out of the State of Florida, without giving effect or related to its conflict of law principlesthis Amendment.
17. BORROWER HEREBY RELEASES AND FOREVER DISCHARGES 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, 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 TENTH 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 ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS TENTH AMENDMENT AND THIS PROVISION SHALL SURVIVE PAYMENT IN FULL OF ALL OBLIGATIONS AND TERMINATION OF ALL FINANCING AGREEMENTS.
18. LENDER AND BORROWER 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 TENTH AMENDMENT OR THE LOAN 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 TENTH AMENDMENT.
Appears in 1 contract
Excess Availability. Borrower shall maintain shall, at all times times, maintain Excess Availability Availability, as determined by Lender Lender, in an amount not less than $750,000500,000.00.
(f) Schedule A to the Loan Agreement Section 12.1(c) is deleted in its entirety and replaced with Schedule A attached heretoentirety.
5. Each and every reference to the Loan Agreement in the other Financing Agreements shall be deemed to refer to the Loan Agreement, as modified by this Tenth Second Amendment.
6. The effectiveness of the amendments contained in Section 4 and Section 5 of this Tenth Second Amendment is subject to satisfactory compliance with conditions precedent requiring that Lender shall have receivedreceived from Borrower:
(a) copies of the final executed documents evidencing or and securing the 11½% Senior Secured Convertible Notes due December 31, 2009, made by SMF in favor of certain noteholders with American National Bank as the indenture trustee (the "2007 Offering"), all August 2003 Indebtedness in form and substance satisfactory to Lender;
(b) all requisite corporate action and proceedings in connection with this Tenth a copy of the Amendment and the other Financing Agreements shall be satisfactory in form and substance to LenderArticles (hereinafter defined), and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender or its counsel may have requested in connection therewith, such documents, where requested to be certified by appropriate corporate officers or governmental authoritiesthe Florida Secretary of State; and
(c) such additional documents, instruments and agreements as are required hereunder as well as those which Lender or its counsel may reasonably request.
7. Notwithstanding any other provision of the Loan Agreement or the Prior Amendments, Lender agrees that the proceeds of the 2007 Offering shall be used first by Borrower to repay the Prior Indebtedness, including any unpaid principal, pre-payment penalties and accrued interest thereon.
8. Lender hereby waives any right under Article III of the Indenture for the January 2005 Indebtedness and under Article III of the Indenture for the September 2005 Indebtedness to require the full forty five (45) days notice of the redemption of the January 2005 Indebtedness and the September 2005 Indebtedness, respectively, with the proceeds of the 2007 Offering.
9. Borrower represents and warrants to Lender that, except as has been otherwise disclosed to Lender in writing, the representations and warranties contained in the Loan 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 Tenth Second Amendment and the related documentation referenced herein, and that no Default or Event of Default shall have occurred and be continuing. Specifically, (a) SMF represents and warrants that its Certificate of Incorporation and Bylaws, certified on February 14, 2007, were not amended on or subsequent to their aforesaid certification date, (b) SSI 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 Borrower represents and warrants that its Articles of Incorporation and Bylaws, certified on October 1September 26, 2005, 2002 were not amended on nor 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 (the "Amendment to Articles").
108. Borrower acknowledges and confirms that all Collateral furnished in connection with the Loan Agreement, except the Excluded Assetspatents, continues continue to secure the Obligations and indebtedness thereunder, as hereby modified. Lender acknowledges and the agrees that (a) it does not have a security interests and liens granted by the Borrower interest in the Collateral other than Vehicles or Borrower's patents, and (b) it shall not, as a result of receiving proceeds of the Excluded Assets August 2003 Indebtedness towards reduction of the outstanding Obligations (the "Paydown Amount"), either (i) prohibit subsequent Revolving Loans reborrowing the Paydown Amount (subject to the terms of the Agreement), or (ii) require a security interest in any Vehicle(s) which may be acquired with the proceeds of such Revolving Loan(s).
9. 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 secure 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 Second 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 are duly perfected, first priority security interests or the Financing Agreements. Borrower and liensObligor each acknowledges that this provision is a material inducement for Lender entering into this Second Amendment and this provision shall survive payment in full of all Obligations and termination of all Financing Agreements.
1110. 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 Tenth Second Amendment, including, without limitation, the reasonable 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 Loan Agreement, as hereby amended, and all related documents, instruments and agreements.
1211. Except as expressly modified herein, all terms and provisions of the Loan Agreement, and all other documents, instruments and agreements executed and/or delivered in connection with the Loan Agreement, shall remain unchanged and in full force and effect; no PROVIDED, HOWEVER, in the event of any inconsistency, incongruity or conflict between the terms of the Agreement and the terms of this Second Amendment, the terms of this Second 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 Tenth Second Amendment nor any earlier waiver or amendment of the Loan Agreement will constitute a novation or have the effect of discharging any liability or obligation evidenced by the Loan Agreement or any other Financing Agreementsrelated document. This Tenth Second 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 Loan 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 Tenth Second Amendment is part of the Loan Agreement and constitutes a Financing Agreement thereunder.
1312. 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.
1413. This Tenth Second 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. Any manually-executed signature page to this Tenth Amendment delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature hereto.
15. Borrower agrees to take such further actions as Lender shall reasonably request from time to time in connection herewith to evidence or give effect to the amendments set forth herein or any of the transactions contemplated hereby.
1614. This Tenth Second 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.
17. BORROWER HEREBY RELEASES AND FOREVER DISCHARGES 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, 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 TENTH 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 ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS TENTH AMENDMENT AND THIS PROVISION SHALL SURVIVE PAYMENT IN FULL OF ALL OBLIGATIONS AND TERMINATION OF ALL FINANCING AGREEMENTS.
18. LENDER AND BORROWER 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 TENTH AMENDMENT OR THE LOAN 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 TENTH AMENDMENT.
Appears in 1 contract
Sources: Loan and Security Agreement (Streicher Mobile Fueling Inc)
Excess Availability. Borrower shall maintain at all times Excess Availability as determined by Lender in an amount not less than than: (a) at all times during the period beginning on February 15, 2007 and ending on July 15, 2007, $750,000, and (b) at all times on and after July 16, 2007, $2,000,000.
(f) Schedule A to the Loan Agreement is deleted in its entirety and replaced with Schedule A attached hereto.
56. Each and every reference to the Loan Agreement in the other Financing Agreements shall be deemed to refer to the Loan Agreement, as modified by this Tenth Ninth Amendment.
67. Reference is made to that certain Subordination Agreement dated January 21, 2003, by and among Active Investors III and C. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, Lender, as successor by merger to Congress Financial Corporation (Florida), and SMF, as successor by merger to ▇▇▇▇▇▇▇▇▇ Mobile Fueling, Inc. (the "Subordination Agreement") and to each of the other agreements, instruments or documents executed in connection therewith or which incorporate the terms thereof by reference thereto (collectively, the "Other Agreements"). Lender acknowledges that, notwithstanding provisions in the Subordination Agreement and the Other Agreements prohibiting principal payments on the Subordinated Debt (as defined in the Subordination Agreement), Lender has consented to each principal payment made by Borrower and disclosed to Lender prior to the date hereof in respect of the Subordinated Debt. Lender agrees that, notwithstanding anything to the contrary contained in the Subordination Agreement or the Other Agreements, Lender consents to one or more principal payments to be made by Borrower on or prior to February 28, 2007 in respect of such Subordinated Debt, in the amounts and at the times specified in the Subordinated Debt documents as in effect on the date hereof, so long as no Default or Event of Default exists under the Loan Agreement on the date of any such payment or would exist as a result of any such payment, and Borrower agrees that, based upon such consent, Borrower is authorized to make such principal payments notwithstanding prohibitions on such payments contained in the Subordination Agreement and the Other Agreements.
8. The effectiveness of the amendments contained in Section 4 and Section 5 of this Tenth Ninth Amendment is subject to satisfactory compliance with conditions precedent requiring that Lender shall have received:
(a) copies of the final executed documents evidencing or securing the 11½% Senior Secured Convertible Notes due December 31, 2009, made by SMF in favor of certain noteholders with American National Bank as the indenture trustee (the "2007 Offering"), all in form and substance satisfactory to Lender;
(b) all requisite corporate action and proceedings in connection with this Tenth Ninth 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 or its counsel may have requested in connection therewith, such documents, where requested to be certified by appropriate corporate officers or governmental authorities;
(b) copies of such current certified good standing, organizational and authorizing documents for SMF as Lender may reasonably request in connection with this Ninth Amendment; and
(c) such additional documents, instruments and agreements as are required hereunder as well as those which Lender or its counsel may reasonably request.
79. Notwithstanding any other provision of As partial consideration for Lender's agreement to amend the Loan Agreement or the Prior Amendmentsas provided above, Lender agrees that has fully earned a nonrefundable facility fee in the proceeds amount of the 2007 Offering forty-five thousand dollars ($45,000), which shall be used first by Borrower paid to repay Lender simultaneously with the Prior Indebtednessexecution of this Ninth Amendment and upon the effectiveness thereof, including irrespective of any unpaid principal, pre-payment penalties and accrued interest thereonactual further funding under the Revolving Loans.
8. Lender hereby waives any right under Article III of the Indenture for the January 2005 Indebtedness and under Article III of the Indenture for the September 2005 Indebtedness to require the full forty five (45) days notice of the redemption of the January 2005 Indebtedness and the September 2005 Indebtedness, respectively, with the proceeds of the 2007 Offering.
910. Borrower represents and warrants to Lender that, except as has been otherwise disclosed to Lender in writing, the representations and warranties contained in the Loan 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 Tenth Ninth Amendment and the related documentation referenced herein, and that no Default or Event of Default shall have occurred and be continuing. Specifically, (a) SMF represents and warrants that its Certificate of Incorporation and Bylaws, certified on February 14, 2007, were not amended on or subsequent to their aforesaid certification date, (b) SSI 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.
1011. Borrower acknowledges and confirms that all Collateral furnished in connection with the Loan Agreement, except the Excluded Assetspatents, continues continue to secure the Obligations and indebtedness thereunder, as hereby modified.
12. Borrower hereby releases and forever discharges 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 security interests "Lender Releasees"), of and liens granted 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, 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 Borrower in date of this Ninth Amendment, whether arising out of, related to or pertaining to the Collateral other than Obligations, the Excluded Assets to Lender to secure Financing Agreements, or otherwise, including, without limitation, the negotiation, closing, administration, and funding of the Obligations are duly perfected, first priority security interests or the Financing Agreements. Borrower acknowledges that this provision is a material inducement for Lender entering into this Ninth Amendment and liensthis provision shall survive payment in full of all Obligations and termination of all Financing Agreements.
1113. 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 Tenth Ninth Amendment, including, without limitation, the reasonable 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 Loan Agreement, as hereby amended, and all related documents, instruments and agreements.
1214. Except as expressly modified herein, all terms and provisions of the Loan Agreement, and all other documents, instruments and agreements executed and/or delivered in connection with the Loan Agreement, shall remain unchanged and in full force and effect; no provided, however, in the event of any inconsistency, incongruity or conflict between the terms of the Loan Agreement and the terms of this Ninth Amendment, the terms of this Ninth 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 Tenth Ninth Amendment nor any earlier waiver or amendment of the Loan Agreement will constitute a novation or have the effect of discharging any liability or obligation evidenced by the Loan Agreement or any other Financing Agreementsrelated document. This Tenth Ninth 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 Loan 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 Tenth Ninth Amendment is part of the Loan Agreement and constitutes a Financing Agreement thereunder.
1315. 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.
1416. This Tenth Ninth 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. Any manually-executed signature page to this Tenth Amendment delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature hereto.
15. Borrower agrees to take such further actions as Lender shall reasonably request from time to time in connection herewith to evidence or give effect to the amendments set forth herein or any of the transactions contemplated hereby.
1617. This Tenth Ninth 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.
17. BORROWER HEREBY RELEASES AND FOREVER DISCHARGES 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, 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 TENTH 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 ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS TENTH AMENDMENT AND THIS PROVISION SHALL SURVIVE PAYMENT IN FULL OF ALL OBLIGATIONS AND TERMINATION OF ALL FINANCING AGREEMENTS.
18. LENDER AND BORROWER 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 TENTH NINTH AMENDMENT OR THE LOAN 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 TENTH NINTH AMENDMENT.
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Excess Availability. Borrower shall maintain at all times Excess Availability as determined by Lender in an amount not less than than: (a) at all times on or before November 22, 2007, $750,000, (b) at all times during the period beginning on November 23, 2007, and ending on December 30, 2007, $500,000, (c) at all times on and after December 31, 2007 (other than during any Reprieve Period), $750,000, and (d) during any Reprieve Period, $500,000.
(f) Schedule A to By extending the "Renewal Date" set forth in Section 12.1(a) of the Loan Agreement is deleted in its entirety and replaced with Schedule A attached heretofrom June 30, 2008, to December 31, 2008.
53. Each Borrower hereby ratifies and every reference reaffirms the Obligations, each of the Financing Agreements and all of Borrower's covenants, duties, indebtedness and liabilities under the Financing Agreements.
4. Borrower hereby acknowledges and stipulates, to induce Lender to enter into this Amendment, that the Loan Agreement in the other Financing Agreements shall be deemed to refer to the Loan Agreement, as modified by this Tenth Amendment.
6. The effectiveness of the amendments contained in Section 4 and Section 5 of this Tenth Amendment is subject to satisfactory compliance with conditions precedent requiring that Lender shall have received:
(a) copies of the final executed documents evidencing or securing the 11½% Senior Secured Convertible Notes due December 31, 2009, made by SMF in favor of certain noteholders with American National Bank as the indenture trustee (the "2007 Offering"), all in form and substance satisfactory to Lender;
(b) all requisite corporate action and proceedings in connection with this Tenth Amendment and the other Financing Agreements shall be satisfactory executed by Borrower are legal, valid and binding obligations of Borrower that are enforceable against Borrower in form and substance to Lender, and Lender shall have received accordance with the terms thereof; all information and copies of all documents, including records of requisite corporate action and proceedings which Lender or its counsel may have requested in connection therewith, such documents, where requested to be certified by appropriate corporate officers or governmental authorities; and
(c) such additional documents, instruments and agreements as are required hereunder as well as those which Lender or its counsel may reasonably request.
7. Notwithstanding any other provision of the Loan Agreement Obligations are owing and payable without defense, offset or counterclaim (and to the Prior Amendmentsextent there exists any such defense, Lender agrees that the proceeds of the 2007 Offering shall be used first by Borrower to repay the Prior Indebtedness, including any unpaid principal, pre-payment penalties and accrued interest thereon.
8. Lender hereby waives any right under Article III of the Indenture for the January 2005 Indebtedness and under Article III of the Indenture for the September 2005 Indebtedness to require the full forty five (45) days notice of the redemption of the January 2005 Indebtedness and the September 2005 Indebtedness, respectively, with the proceeds of the 2007 Offering.
9. Borrower represents and warrants to Lender that, except as has been otherwise disclosed to Lender in writing, the representations and warranties contained in the Loan Agreement and all related loan documentation are true and correct offset or counterclaim 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 Tenth Amendment and the related documentation referenced herein, and that no Default or Event of Default shall have occurred and be continuing. Specifically, (a) SMF represents and warrants that its Certificate of Incorporation and Bylaws, certified on February 14, 2007, were not amended on or subsequent to their aforesaid certification date, (b) SSI 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.
10. Borrower acknowledges and confirms that all Collateral furnished in connection with the Loan Agreement, except the Excluded Assets, continues to secure the Obligations and indebtedness thereunder, same is hereby waived by Borrower); and the security interests and liens granted by the Borrower in the Collateral other than the Excluded Assets to favor of Lender to secure the Obligations are duly perfected, first priority security interests and liens.
115. Borrower represents and warrants to Lender, to induce Lender to enter into this Amendment, that no Default or Event of Default exists on the date hereof; the execution, delivery and performance of this Amendment have been duly authorized by all requisite corporate action on the part of Borrower and this Amendment has been duly executed and delivered by Borrower; and except as may have been disclosed in writing by Borrower to Lender prior to the date hereof, all of the representations and warranties made by Borrower in the Loan Agreement are true and correct on and as of the date hereof.
6. In consideration of Lender's willingness to enter into this Amendment, Borrower hereby agrees to pay to Lender a nonrefundable amendment fee (the "Amendment Fee") in the amount of sixty two thousand five hundred dollars ($62,500), which Amendment Fee shall pay be fully earned on the date hereof and shall be payable in three installments as follows: (a) twenty two thousand five hundred dollars ($22,500) in immediately available funds on ▇▇▇▇▇ ▇, ▇▇▇▇, (▇) twenty thousand dollars ($20,000) in immediately available funds on April 1, 2008, and (c) twenty thousand dollars ($20,000) in immediately available funds on May 1, 2008. Additionally, to induce Lender to enter into this Amendment and grant the accommodations set forth herein, Borrower hereby agrees to pay, on demand, all out-of-pocket costs and expenses incurred by Lender in connection with the preparation for preparation, negotiation and closing execution of the transaction contemplated under this Tenth AmendmentAmendment and any other Financing Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including, without limitation, the reasonable costs and fees of Lender's legal counsel and any taxes or expenses of special counsel for Lender. In addition, Borrower shall pay any and all taxes (together associated with interest and penalties, if any, applicable thereto) and fees, including, without limitation, documentary stamp taxes, now or hereafter required incurred in connection with any instrument or agreement referred to herein or contemplated hereby.
7. The effectiveness of the execution amendments to the Loan Agreement set forth in this Amendment is subject to the satisfaction of each of the following conditions precedent, in each case in form and delivery substance satisfactory to Lender:
(a) Lender shall have received duly executed and delivered counterparts of this Amendment from Borrower and Guarantor;
(b) Lender shall have received full payment of the first installment of the Amendment Fee on the date such installment is payable;
(c) SMF shall have received gross cash proceeds from the issuance of Series A Preferred Stock (as defined in that certain letter agreement, of even date herewith, regarding Lender's consent to the issuance of such stock (the "Consent Letter")) in an amount not less than $500,000, and the holders of not less than $2,000,000 in principal amount of November 2007 Subordinated Debt (as defined in the Consent Letter) shall have exchanged such Subordinated Debt for Series A Preferred Stock of SMF, all as contemplated by the Consent Letter; and
(d) no Default or Event of Default shall exist or occur on the date hereof.
8. Upon the effectiveness of the amendments set forth in this Amendment, each reference in the Loan Agreement to "this Agreement," "hereunder," or words of like import shall mean and be a reference to the Loan Agreement, as hereby amended, and all related documents, instruments and agreementsamended by this Amendment.
12. Except as expressly modified herein, all terms and provisions of the Loan Agreement, and all other documents, instruments and agreements executed and/or delivered in connection with the Loan Agreement, shall remain unchanged and in full force and effect; 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 Tenth Amendment nor any earlier waiver or amendment of the Loan Agreement will constitute a novation or have the effect of discharging any liability or obligation evidenced by the Loan Agreement or any other Financing Agreements9. This Tenth 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 Loan 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 Tenth Amendment is part of the Loan 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, hereto and their respective successors and assigns.
10. This Amendment shall be governed by and construed in accordance with the internal laws of the State of Florida, except that Borrower without giving effect to its conflict of laws principles.
11. Except as otherwise expressly provided in this Amendment, nothing herein shall not have be deemed to amend or modify any provision of the right to assign its rights hereunder Loan Agreement or any interest of the other Financing Agreements, each of which shall remain in full force and effect. This Amendment is not intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the Loan Agreement as herein without the prior written consent of Lendermodified shall continue in full force and effect.
1412. This Tenth Amendment may be executed in any number of counterparts and by different parties hereto in to this Amendment on separate counterparts, each of which, when so executed, shall be deemed to be an original and shall be binding upon original, but all parties, their successors and assigns, and all of which taken together such counterparts shall constitute one and the same agreement. Any manually-executed signature page to this Tenth Amendment delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature page hereto.
1513. Borrower agrees hereby releases and forever discharges 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 take such further actions as the "Lender shall reasonably request Releasees"), of and from all actions, agreements, damages, judgments, claims, counterclaims, and demands whatsoever, whether liquidated or unliquidated, contingent or fixed, determined or undetermined, at law or in equity, which Borrower had, now has, or may at any time to time in connection herewith to evidence or give effect to have against the amendments set forth herein Lender Releasees, or any of them, for, upon or by reason of any matter, cause or thing whatsoever to the transactions contemplated hereby.
16. This Tenth Amendment shall be governed bydate of this Amendment, and construed and interpreted in accordance withwhether arising out of, related to or pertaining to the Obligations, the laws Financing Agreements or otherwise, including, without limitation, the negotiation, closing, administration and funding of the State Obligations or the Financing Agreements. Borrower acknowledges that this provision is a material inducement for Lender entering into this Amendment and that this provision shall survive the payment in full of Florida, without giving effect to its conflict all Obligations and the termination of law principlesall Financing Agreements.
17. BORROWER HEREBY RELEASES AND FOREVER DISCHARGES 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, 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 TENTH 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 ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS TENTH AMENDMENT AND THIS PROVISION SHALL SURVIVE PAYMENT IN FULL OF ALL OBLIGATIONS AND TERMINATION OF ALL FINANCING AGREEMENTS.
18. LENDER AND BORROWER 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 TENTH AMENDMENT OR THE LOAN 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 TENTH AMENDMENT.
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