EXHIBIT 10.8
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
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THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
is made and entered into effective as of the 30th day of April, 2001 (this
"Amendment"), by and between XXXXXXXXX MOBILE FUELING, INC., a Florida
corporation ("Xxxxxxxxx Mobile"), XXXXXXXXX REALTY, INC., a Florida corporation
("Xxxxxxxxx Realty"), and XXXXXXXXX WEST, INC., a California corporation
("Xxxxxxxxx Xxxx", Xxxxxxxxx Xxxx, Xxxxxxxxx Mobile and Xxxxxxxxx Realty
sometimes hereinafter collectively referred to as "Borrower"), and BANKATLANTIC,
a Federal Savings Bank (hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender have previously entered into that certain
Amended and Restated Loan Agreement dated as of the 25th day of May, 1999, as
amended by First Amendment to Amended and Restated Loan Agreement dated as of
the 22nd day of December, 1999 (collectively, the "Loan Agreement" or the
"Agreement"); and
WHEREAS, the parties hereto wish to amend the Loan Agreement in
accordance with the terms and provisions of, and as provided in, this Amendment.
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. Article 1, Subsection 1.2(f) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(f) "Cash Collateral Account": A cash collateral account
pledged by Borrower in favor of Lender, into which all
collections shall be remitted from a lockbox account into
which Borrower's account debtors remit all payments, which
collections shall be applied against the Loan facility balance
in accordance with the terms and provisions of the Security,
Cash Collateral Account and Lockbox Agreement. The Borrower
shall not have access to the Lockbox or the Cash Collateral
Account.
4. Article 1, Subsection 1.2(i) of the Agreement is hereby amended and
restated so that,
from and after the date hereof, it shall read in its entirety as follows:
(i) "Credit Facility Letter": That certain letter executed by
and between Lender and Borrower dated April 23 2001, and all
amendments thereto, the terms and conditions of which are
hereby incorporated by reference herein, but in the event of
any conflict or discrepancy between the terms of this
Agreement and the Credit Facility Letter, the terms of this
Agreement shall control.
5. Article 1, Subsection 1.2(x) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(x) "Loan Documents": This Agreement, the Revolving Note, the
Security Agreements, the Security, Cash Collateral Account and
Lockbox Agreement, the Term Note, the Subordination Agreement,
the Deed of Trust and all other associated loan documents
executed in connection with the making of the Loan and/or the
Term Loan (and any modification, renewal or extension
thereof).
6. Article 1, Subsection 1.2(y) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(y) "Maturity Date": As to the Loan, the date the Loan becomes
due and payable in full in accordance with the terms and
provisions of the Note.
7. Article 1, Subsection 1.2(z) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(z) "Revolving Note or "Note": That certain Amended and
Restated Master Revolving Promissory Note in the principal
amount of Ten Million and 00/100 Dollars ($10,000,000.00) from
Borrower to Lender dated effective as of April 30, 2001, as
the same may be amended, restated, supplemented or extended
from time to time.
8. Article 1, Subsection 1.2(ff) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(ff) "Security Agreements": Collectively, Security Agreements
dated as of December 30, 1997 executed by each Borrower in
favor of Lender, each as amended and reaffirmed by Amendment
to and Reaffirmation of Security Agreement dated as of May 25,
1999, as amended and reaffirmed by Second Amendment to and
Reaffirmation of Security Agreement dated as of December 22,
1999, as amended and reaffirmed by Third Amendment to and
Reaffirmation of Security Agreement dated as of the 19th day
of April, 2001, as amended and reaffirmed by Fourth Amendment
to and Reaffirmation of Security Agreement dated effective as
of the
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30th day of April, 2001, as each of the same may be amended,
restated, supplemented or extended, from time to time,
securing the Note, the Term Note and all other Indebtedness of
Borrower to Lender, which is a valid first lien on all of the
Borrower's accounts, accounts receivables, inventory, chattel
paper, general intangibles, fixtures, furniture, instruments,
equipment and personal property now owned or hereafter
acquired by Borrower and all proceeds of the foregoing,
subject only to the Permitted Encumbrances (as defined in the
Security Agreements).
9. Article 1, Subsection 1.2(gg) of the Agreement is hereby deleted in
its entirety.
10. Article 1, Subsection 1.2(hh) of the Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in its
entirety as follows:
(hh) "Security, Cash Collateral Account and Lockbox
Agreement". An Amended and Restated Security, Cash Collateral
Account and Lockbox Agreement, dated effective as of April 30,
2001, whereby and whereunder payment of all of Borrower's
Receivables shall be directed to a lockbox maintained with
Lender (the "Lockbox") to flow through the Cash Collateral
Account, and, be applied against the Loan facility balance in
accordance with the terms and provisions of said agreement.
11. Article 1, Subsection 1.2(jj) is hereby added to the Agreement, so
that from and after the date hereof, it shall read in its entirety as follows:
(jj) "Deed of Trust". That certain Deed of Trust, Assignment
of Leases and Rents and Security Agreement dated as of April
19, 2001, executed by Xxxxxxxxx Realty in favor of Lender to
be recorded in the Public Records of Tarrant County, Texas,
together with UCC-1 Financing Statements associated therewith
to be (i) recorded in the Public Records of Tarrant County,
Texas, (ii) filed with the State of Texas and (iii) filed with
the Florida Secretary of State, encumbering certain real
property owned by Xxxxxxxxx Realty located in Tarrant County,
Texas, which secures the Loan and the Term Loan to the extent
of One Hundred Thousand and 00/100 Dollars ($100,000.00).
12. Article 1, Subsection 1.2(kk) is hereby added to the Agreement, so
that from and after the date hereof, it shall read in its entirety as follows:
(kk) "Subordination Agreement". A Subordination of Loans
Agreement subordinating certain convertible subordinated loans
evidenced by convertible subordinated promissory notes
executed by Xxxxxxxxx Mobile in favor of various parties, to
the lien and effect of the Loan in accordance with the terms
and provisions of said Agreement.
13. Article 1, Subsection 1.2(ll) is hereby added to the Agreement, so
that from and after
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the date hereof, it shall read in its entirety as follows:
(ll) "Term Note". That certain Promissory Note in the
principal amount of One Hundred Thousand and 00/100 Dollars
($100,000.00) from Borrower to Lender dated as of April 19,
2001, as the same may be amended, restated, supplemented or
extended from time to time; the loan evidenced thereby
sometimes referred to as the "Term Loan". The Term Loan and
the Loan are cross-defaulted and cross- collateralized.
14. Article 2, Subsection 2.4(c) of the 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, Cash Collateral Account and Lockbox
Agreement, in form and substance satisfactory to Lender and
Lender's Counsel.
15. Article 2, Subsection 2.5 is hereby added to the Agreement, so that
from and after the date hereof, it shall read in its entirety as follows:
2.5 Loan Fee. In connection with the Loan, the fee due and
owing from Borrower shall be two percent (2%) of the amount of
the Loan or the sum of Two Hundred Thousand and 00/100 Dollars
($200,000.00). It is acknowledged that in consideration of the
issuance of the Credit Facility Letter and the reserving of
sufficient funds by Lender from which to make Loan
disbursements, Lender is deemed to have earned the entire Loan
Fee, it being hereby acknowledged and agreed to the Loan Fee
is deemed EARNED and NON-REFUNDABLE. The Loan Fee shall be
payable as follows: the first One Hundred Thousand and 00/100
Dollars ($100,000.00) of the Loan Fee (the "Initial Loan Fee")
shall be payable in six (6) equal monthly installments in the
amount of Sixteen Thousand Six Hundred Sixty- Six and 67/100
Dollars ($16,666.67) commencing on June 1, 2001, with like
payments of Sixteen Thousand Six Hundred Sixty-Six and 67/100
Dollars ($16,666.67) due and payable on like day each month
thereafter until the first One Hundred Thousand and 00/100
Dollars ($100,000.00) has been paid in full. The remainder of
the Loan Fee in the amount of One Hundred Thousand and 00/100
Dollars ($100,000.00), together with any unpaid portion of the
Initial Loan Fee shall be due and payable in full upon the
earlier of maturity or prepayment of the Loan, unless the Loan
is renewed by Lender (in Lender's sole and absolute
discretion) past the Maturity Date in which case the remainder
of the Loan Fee in the amount of One Hundred Thousand and
00/100 Dollars ($100,000.00), together with any unpaid portion
of the Initial Loan Fee shall be due and payable in full upon
the earlier of the new maturity date of the Loan or prepayment
of the Loan, such that the entire Two Hundred Thousand and
00/100 Dollar ($200,000.00) Loan Fee must have been paid in
full or must be paid in full at the earliest of such time as
the Loan matures and is not renewed, the Loan becomes due as a
result of acceleration, or the Loan is paid
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and satisfied in full.
16. Article 8, Section 8.4 of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
8.4 In accordance with the terms and provisions of the
Security, Cash Collateral Account and Lockbox Agreement,
Borrower shall direct all account debtors to remit all
payments to the Lockbox 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 in accordance with the terms and provisions of the
Security, Cash Collateral Account and Lockbox Agreement.
17. Article 8, Section 8.6 of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
8.6 Xxxxxxxxx Mobile shall maintain a net worth of not less
than Two Million Seven Hundred Thousand and 00/100 Dollars
($2,700,000.00) from October 30, 2000 and thereafter, such
requirement to be tested at the end of each quarter of each
fiscal year of Xxxxxxxxx Mobile. The minimum net worth
requirements shall be increased at the end of each quarter in
each fiscal year of Xxxxxxxxx Mobile thereafter in an amount
to be determined by Lender based upon Xxxxxxxxx Mobile's
annual projection for the period in question.
18. Article 8, Section 8.7 of the Agreement is hereby amended and
restated so that, 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 8.0 to 1 at all times during the term of the
Loan, said ratio to be tested at the end of each quarter of
each fiscal year of Xxxxxxxxx Mobile, provided that the
debt-to-worth ratio may be adjusted by Lender at the end of
each quarter in each fiscal year of Xxxxxxxxx Mobile based
upon Xxxxxxxxx Mobile's annual projections for the period in
question.
19. Article 8, Section 8.37 of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
8.37 Borrower does hereby acknowledge that the Security, Cash
Collateral Account and Lockbox Agreement is in full force and
effect.
20. Article 9, Subsection 9(b) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(b) If there occurs any default under any other term of this
Agreement, the Note, the Term Note, the Security, Cash
Collateral Account and Lockbox Agreement, the
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Deed of Trust, any of the Security Agreements or any of the
other Loan Documents relating hereto or thereto subject to any
applicable cure period(s) set forth therein;
21. Article 13, Section 13.14 of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
13.14 In the event of any conflict, inconsistency or ambiguity
between the provisions of this Agreement and the provisions of
the Revolving Note, the Term Note, the Deed of Trust, any of
the Security Agreements, the Security, Cash Collateral Account
and Lockbox Agreement, or any other Loan Documents, the
provisions of this Agreement shall control and prevail.
22. The Borrower represents and warrants to the Lender that (a) each
Borrower has previously furnished Lender with true and correct copies of its
Articles of Incorporation and By-laws, 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
undersigned officer of each Borrower.
23. Cross-Default/Cross-Collateralization. The Loan and the Term Loan
are cross- defaulted and cross-collateralized, such that a default under the
Term Loan shall be and constitute a default under the Loan and a default under
the Loan shall be and constitute a default under the Term Loan, entitling Lender
to exercise all remedies set forth in all Loan Documents; provided, further,
that no Loan Documents shall be released until such time as both the Loan and
the Term Loan are paid and satisfied in full.
24. Waiver and Release. AS A MATERIAL INDUCEMENT FOR THE LENDER TO
EXECUTE THIS AMENDMENT, 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 ALL LIABILITY, CLAIMS, COUNTERCLAIMS, DEFENSES, ACTIONS,
CAUSES OF ACTION, SUITS, CONTROVERSIES, AGREEMENTS, PROMISES 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 ASSIGNS, FOR, UPON OR BY
REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER, THROUGH 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 OF OFFSET AGAINST THE LENDER OR THE OBLIGATION OF
EACH BORROWER TO PAY THE LENDER ALL AMOUNTS OWING UNDER THE NOTE, THE TERM NOTE,
THE LOAN AGREEMENT AND ALL ASSOCIATED
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LOAN DOCUMENTS AS AND WHEN THE SAME BECOME DUE AND PAYABLE. NOTWITHSTANDING THE
ABOVE, THE PARTIES DO HEREBY ACKNOWLEDGE THAT ANY DEPOSIT ACCOUNT(S) OF BORROWER
MAINTAINED WITH LENDER ARE SUBJECT TO THE TERMS AND PROVISIONS OF ANY
AGREEMENT(S) RELATED TO THOSE ACCOUNT(S), PROVIDED HOWEVER, THAT BORROWER IS
UNAWARE OF ANY CLAIMS CONCERNING THOSE ACCOUNT(S) AT THIS TIME.
25. 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.
26. Amended Agreement. THIS AGREEMENT AMENDS THE LOAN AGREEMENT, AND
THE BORROWER ACKNOWLEDGES AND AGREES THAT THE SECURITY INTERESTS, 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, VOLUNTARILY,
INTENTIONALLY, 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 AS AMENDED BY THIS AMENDMENT AND THE
LOAN DOCUMENTS, RELATE.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed effective as of the date first above written.
Signed, sealed and delivered in BORROWER:
the presence of:
XXXXXXXXX MOBILE FUELING, INC., a Florida
corporation
_________________________ By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
_________________________ XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
XXXXXXXXX REALTY, INC., a Florida corporation
_________________________ By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
_________________________ XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
XXXXXXXXX WEST, INC., a California corporation
_________________________ By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
_________________________ XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
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LENDER:
BANKATLANTIC, a Federal Savings Bank
_________________________
By: /s/ Xxxxxxx X. Xxxxx
_________________________ -----------------------------------------
Xxxxxxx X. Xxxxx, Vice President
STATE OF GEORGIA
COUNTY OF ________________
THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a
Notary Public in and for the State of Georgia, this ___ day of __________, 2001,
by XXXXXX X. XXXXXXX, as Vice President of Finance of and on behalf of each of
XXXXXXXXX MOBILE FUELING, INC., a Florida corporation, XXXXXXXXX REALTY, INC., a
Florida corporation, and XXXXXXXXX WEST, INC., a California corporation, who |_|
is personally known to me or |_| produced his driver's license as
identification.
___________________________________________
Notary Public - State and County Aforesaid
Print Name: _______________________________
My Commission Expires: ____________________
Commission Number: ________________________
STATE OF GEORGIA
COUNTY OF ________________
THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a
Notary Public in and for the State of Georgia, this ___ day of __________, 2001,
by XXXXXXX X. XXXXX, as Vice President of and on behalf of BANKATLANTIC, a
Federal Savings Bank, who |_| is personally known to me or |_| produced his
driver's license as identification.
___________________________________________
Notary Public - State and County Aforesaid
Print Name: _______________________________
My Commission Expires: ____________________
Commission Number: ________________________
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