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Amended And Restated Note Agreement

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Sectors: Energy
Governing Law: Colorado , View Colorado State Laws
Effective Date: November 30, 2007
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Exhibit 10.33





AMENDED AND RESTATED NOTE AGREEMENT





DATED AS OF



NOVEMBER 30, 2007





AMONG



TRANSMONTAIGNE PRODUCT SERVICES INC.



ALL AMERICAN PLAZAS, INC.,



ABLE ENERGY, INC.



AND



ALL AMERICAN PROPERTIES, INC.








AMENDED AND RESTATED NOTE AGREEMENT



This Amended and Restated Note Agreement (" Agreement ") is made and entered into as of November 30, 2007 (the " Effective Date "), by and among TransMontaigne Product Services Inc., a Delaware corporation ("TPSI"), All American Plazas, Inc., a Delaware corporation ("Plazas"), Able Energy Inc., a Delaware corporation ("Able"), All American Properties, Inc., a Pennsylvania corporation formerly known as "All American Plazas, Inc." "( Properties " and, together with Plazas and Able, the " All American Entities ") and the Mortgagors identified on the signature page hereto.



RECITALS



A. TPSI, as supplier, and Properties, as purchaser, have previously entered into a Diesel Fuel Sales Agreement, dated December 14, 2005, as amended by (i) Amendment No. 1 dated May 1, 2006, (ii) Amendment No. 2 dated November 15, 2006, (iii) Amendment No. 3 dated November 27, 2006, (iv) Amendment No. 4 dated February 1, 2007, (v) Amendment No. 5 dated March 1, 2007, and (vi) Amendment No. 6 dated April 1, 2007 (the "Prior Supply Agreement") pursuant to which TPSI agreed to supply and sell refined petroleum products to Properties, and Properties agreed to purchase and resell the same at various retail truck stop plaza locations owned and operated by Properties, all upon the terms and for the consideration set forth in the Prior Supply Agreement.



B. TPSI and Properties have previously entered into a Note Agreement, dated as of April 1, 2007 (the " Prior Note Agreement "), and Properties has issued thereunder a promissory note, dated such date (the " April Note "), to evidence certain unpaid invoices under the Prior Supply Agreement, the outstanding principal balance of which, together with all accrued interest thereon, is set forth on Schedule I hereto.



C. Pursuant to the terms of the Prior Supply Agreement, TPSI has submitted invoices to Properties for payment, which invoices evidence the volumes of refined petroleum products delivered and sold by TPSI to Properties of and which Properties has acknowledged receipt and is obligated to pay for (collectively, the " Unpaid Invoices " and together with the amounts owing to TPSI under the April Note, the " Prior Indebtedness ") in the amounts set forth on Schedule I hereto.



D. On or about May 30, 2007, Able acquired from Properties or its subsidiaries the fuel assets of certain truck stop plazas owned by Properties and its subsidiaries, while Properties and its subsidiaries continue to own the real property and improvements comprising such truck stop plazas. In connection with the acquisition of such assets, Able formed Plazas as a wholly owned subsidiary to operate such truck stop plazas pursuant to several lease agreements between Plazas and the subsidiaries of Properties that own the real property and improvements comprising such truck stop plazas.








E. TPSI, as supplier, and Plazas, as purchaser, have entered into a Delivered Fuel Supply Agreement, dated October 5, 2007, as amended and supplemented by the Letter Agreement dated October 5, 2007, the First Amendment to Delivered Fuel Supply Agreement dated November 5, 2007, the Second Amendment to Delivered Fuel Supply Agreement dated November 15, 2007 and the Third Amendment to Delivered Fuel Supply Agreement dated November 21, 2007 (collectively, the " Supply Agreement "), pursuant to which (i) TPSI has agreed to extend to Plazas a $1,550,000 advance (the "Prepayment Advance ") to enable Plazas to satisfy its prepayment obligations in connection with the initiation of the Supply Agreement, (ii) TPSI has agreed to supply Product (as defined therein) to Plazas and (iii) Plazas has agreed to purchase and resell the Product at various retail truck stop plaza locations operated by Plazas and owned by Properties from and after the date thereof, which Supply Agreement supersedes any and all prior agreements, representations and understandings between the parties, including, without limitation, the Prior Supply Agreement, provided, however, the Indebtedness shall remain due and payable pursuant to the terms and conditions of this Agreement. As a result, each of Able, Plazas and Properties have benefited from the previous extensions of the Indebtedness by TPSI and continue to derive material benefits from TPSI's forbearance of exercising its rights and remedies in respect of past due payments under the Prior Supply Agreement and the Prior Note Agreement and the continued sale by TPSI of Product to Plazas for sale at the retail truck stop plazas owned by Properties.



F. TPSI and the All American Entities desire to amend and restate the terms of the Prior Note Agreement and the Prior Note, and to evidence the debt owed in respect of the Prepayment Advance, on the terms set forth herein and in (1) an amended and restated secured promissory note substantially in the form of Exhibit A-1 issued jointly and severally by Properties and each of the Mortgagors (as defined herein) payable to the order of TPSI (the "Properties Note ") in an aggregate principal amount equal to the sum of the Prior Indebtedness and the accrued but unpaid interest thereon to the date hereof, and (2) a guaranteed promissory note substantially in the form of Exhibit A-2 issued jointly by Able and Plazas payable to the order of TPSI (the "Able/Plazas Note" and, together with the Properties Note, the "Notes") in the aggregate amount of the Prepayment Advance. The aggregate amount of indebtedness represented by the Notes is referred to herein collectively as the "Indebtedness ". The principal amount of the Indebtedness, together with accrued interest thereon, shall be due and payable in accordance with the terms and provisions set forth in this Agreement and the Notes.



G. As of the Effective Date, the parties intend that this Agreement and the Notes shall amend and restate in their entirety the Prior Note Agreement and the April Note, respectively.



H. TPSI has agreed to enter into this Agreement and the Supply Agreement with the All American Entities based on (1) the agreement by the All American Entities to provide the Collateral (as defined below) and the assurances by the All American Entities that each of Mortgage A and Mortgage B (each as defined herein) would be perfected no later than November 30, 2007 and each of Mortgage C and Mortgage D (each as defined herein) would be perfected no later than December 14, 2007.



FOR VALUE RECEIVED, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:







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ARTICLE 1

THE NOTE



1.1 Amount and Interest. Subject to the terms and conditions hereinafter set forth, Properties, on its own behalf and on behalf of each of the Mortgagors, agrees to execute and deliver to TPSI the Properties Note, which shall be in the form attached hereto as Exhibit A-1, and shall be payable in accordance with the terms and conditions set forth herein and therein. Subject to the terms and conditions hereinafter set forth, Able and Plazas agree to execute and deliver to TPSI the Able/Plazas Note, which shall be in the form attached hereto as Exhibit A-2, and shall be payable in accordance with the terms and conditions set forth herein and therein. The Notes will evidence the principal amount of the Indebtedness, together with interest accruing at the rate of 8% per annum on that portion of the Properties Note set forth on Schedule I representing the sum of the principal and unpaid interest on the April Note Amount and the Past Due Invoice Amount (the " Current Interest Portion "). Until the date that is 21 months following the Effective Date, the balance of the Notes in excess of the Current Interest Portion shall not bear interest. Following the date that is 21 months after the Effective Date, the entire unpaid balance of the Indebtedness represented by the Notes (including any portion thereof representing due but unpaid interest) shall bear interest at the rate of 8% per annum. In the event of any conflict, the terms of this Agreement shall control, but the Notes and Agreement shall be interpreted consistently to the extent possible.



1.2 Indebtedness. The All American Entities acknowledge the Prior Indebtedness set forth on Schedule I, as evidenced by the April Note and the Unpaid Invoices, which constitutes a valid and binding obligation of Properties to TPSI that is absolutely owing and enforceable under the Prior Note Agreement, the Prior Note and the Prior Supply Agreement, the terms of which are amended and restated in accordance with the terms of this Agreement and the Notes, free of any and all defenses and rights of offset or recoupment, all of which defenses and rights are hereby waived and released by the All American Entities, other than as set forth in this Agreement and the Notes. The parties acknowledge and agree that this Section 1.2 shall not constitute a waiver of, or otherwise modify or amend, any rights or obligations of the parties to the Supply Agreement with respect to performance under the Supply Agreement from and after October 5, 2007.



1.3 Acceptance. TPSI agrees to accept the Notes in order to amend and restate the terms of the Prior Indebtedness, on the terms and conditions set forth in this Agreement, including fulfillment of the conditions precedent set forth in this Agreement in conjunction with the execution and delivery of the Notes and the granting of the security therefor.



1.4 Payment of Notes. In addition to any payment of the Notes that may become due and payable following an Event of Default or in accordance with Section 5.1 hereof, the unpaid principal balance of the Notes, together with accrued interest thereon, shall become due and payable as follows:



(a) from and after the Effective Date, the All American Entities shall be required to pay to TPSI at least 50% of the Net Proceeds (as defined below) of any debt financing (including the incurrence of new indebtedness and any refinancings of existing indebtedness), equity financing or other capital-raising transaction, until such time as $3,000,000 of the aggregate outstanding principal amount of the Indebtedness (the " Threshold Amount ") has been paid to TPSI pursuant hereto (such payment to first be credited to the unpaid amount, if any, of the Past Due Invoice Amount set forth on Schedule I and any excess to be credited against the unpaid amount of the April Note);





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(b) if the All American Entities have not paid the Threshold Amount pursuant to Section 1.4(a) on or before March 15, 2008, then:



(i) the All American Entities shall make monthly payments (with the first payment being due on March 15, 2008 and the last payment being due on October 15, 2009) of principal and interest on the outstanding amount of the Indebtedness (calculated as of March 15, 2008, taking into account all payments of principal made prior to such date by the All American Entities) in equal monthly amounts sufficient to amortize the Indebtedness over 25 years (i.e., for every $1,000,000 of Indebtedness outstanding, the monthly payment will equal $7,718.16), which payments shall be credited first to the outstanding balance of the Properties Note and then to accrued but unpaid interest thereon; and



(ii) on November 15, 2009, the entire amount of principal and interest of the Indebtedness then outstanding shall be due and payable in full;



provided, however, that if, on or before August 15, 2008, the All American Entities shall have paid at least the Threshold Amount pursuant to this Section 1.4, then the monthly payments obligations and amortization schedule set forth in Section 1.4(b)(i) shall cease and shall thereafter resume pursuant to Section 1.4(c); and



(c) if the All American Entities shall have paid the Threshold Amount pursuant to Section 1.4(a) on or before March 15, 2008, or if the monthly payments and amortization schedule set forth in Section 1.4(b) shall have ceased as a result of the payment of the Threshold Amount on or before August 15, 2008 as provided in Section 1.4(b), then:



(i) commencing on July 31, 2009, the All American Entities shall make monthly payments (the first payment being due on July 31, 2009 and the last payment being due on February 28, 2011) of principal and interest on the outstanding amount of the Indebtedness (calculated as of July 31, 2009, taking into account all payments of principal made prior to such date by the All American Entities) in equal monthly amounts sufficient to amortize the Indebtedness over 25 years (i.e., for every $1,000,000 of Indebtedness outstanding, the monthly payment will equal $7,718.16), which payments shall be credited first to the outstanding balance of the Properties Note and then to accrued but unpaid interest thereon; and



(ii) on March 31, 2011, the entire amount of principal and interest of the Indebtedness then outstanding shall be due and payable in full.



Amounts not paid when due hereunder or under the Notes shall accrue interest until paid at a rate 2.0% per annum above the rate of interest otherwise applicable to such amount (the "Default Rate").





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If, in order to make the payments provided for in Section 1.4(a), the All American Entities or the Mortgagors enter into one or more refinancing transactions with respect to any of the Mortgaged Premises (as defined in Section 1.6(a)), then, so long as TPSI shall have received the Threshold Amount on or before March 15, 2008, TPSI shall agree to subordinate its lien on such Mortgaged Premises to that of the lender in such refinancing transaction; provided, however, that if, following such refinancing transaction, the Mortgaged Premises have an aggregate Net Mortgage Value (as defined below) (based on the appraised value as set forth on Schedule II or a more recent third party independent appraisal prepared subsequent to the date hereof, if any) lower than 150% of the aggregate amount of the Indebtedness (after the repayment of any and all indebtedness senior in priority to the Indebtedness secured by a Mortgage in favor of TPSI on such Mortgaged Premises), then Properties shall provide TPSI with perfected security interests in additional property or properties owned by Properties or one or more affiliates thereof with a Net Mortgage Value (based on the most recent appraisals thereof in the possession of Properties) that, together with the Net Mortgage Value of the Mortgaged Premises (based on the appraised value as set forth on Schedule II or a more recent third party independent appraisal prepared subsequent to the date hereof, if any), equals or exceeds the amount of the Indebtedness. Any such additional property or properties must be satisfactory to TPSI in its reasonable discretion. The All American Entities shall, within five business days of the closing of the refinancing transaction, prepare and record a mortgage or other similar security instrument, in form and substance substantially identical to the Mortgages (except for changes required by applicable law or that reflect the different description, location or nature of the applicable property), in connection with each such additional property or properties and, upon proper recording thereof, such mortgage or other similar security instrument shall constitute a "Mortgage" hereunder and such additional property shall constitute a "Mortgaged Premises" hereunder.



For purposes of this Agreement,



(i) "Net Proceeds" shall mean cash proceeds received by an All American Entity from any debt financing (including the incurrence of new indebtedness and any refinancing of existing indebtedness), equity financing or other capital-raising transaction, net of (A) expenses actually incurred and paid by the All American Entities to an unaffiliated third party in connection with such financing (including, without limitation, title insurance premiums, recording fees and lender fees) and (B) (i) if such refinancing involves any of the Mortgaged Premises, any amounts applied to repayment of indebtedness senior in priority to the Indebtedness secured by a Mortgage in favor of TPSI on the Mortgaged Premises subject to such financing transaction or (ii) if such refinancing involves a property that is not one of the Mortgaged Premises, any amounts applied to repayment of indebtedness secured by a mortgage or other lien on such property; and




(ii) "Net Mortgage Value" shall mean the fair market value of any property (determined as specified in this Agreement) less the maximum aggregate amount of obligations secured by any mortgage or other consensual lien or encumbrance that has or would have priority over, or be pari passu with, the applicable Mortgage or proposed additional mortgage in favor of TPSI with respect to such property.










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1.5 Place of Payment. Payments of principal, interest and any other amounts due TPSI under the Notes shall be made by the All American Entities at TPSI's offices at 1670 Broadway, Suite 3100, Denver, Colorado 80202, or at such other place as TPSI may designate, from time to time, in writing to the All American Entities in accordance with the terms of this Agreement.



1.6 Collateral.



(a) The Notes shall be secured by mortgages of certain properties (the "Mortgaged Premises") as follows:



(i) that certain property (located in Duncannon, PA known as the "Clark's Ferry truck stop plaza") as defined in that certain Second Lien Mortgage and Security Agreement, dated as of the Effective Date and to be recorded by Clark's Ferry Properties (as defined below) no later than three (3) business days following the Effective Date, made by Clarks Ferry Properties, Inc., a Delaware corporation ("Clark's Ferry Properties"), and a wholly owned subsidiary of Properties, in favor of TPSI, substantially in the form attached hereto as Exhibit B-1 (as amended, restated, supplemented or modified from time to time, " Mortgage A "), between All American and TPSI;



(ii) that certain property (located in Myerstown, PA, known as the "Frystown truck stop plaza") as defined in that certain Second Lien Mortgage and Security Agreement, dated as of the Effective Date and to be recorded by Frystown Properties (as defined below) no later than three (3) business days following the Effective Date, made by Frystown All American Properties, Inc., a Delaware corporation ("Frystown Properties"), and a wholly owned subsidiary of Properties, in favor of TPSI, substantially in the form attached hereto as Exhibit B-2 (as amended, restated, supplemented or modified from time to time, " Mortgage B ");



(iii) if such property is owned by Energy Management & Supply Corporation, a Delaware corporation ("Belmont Properties"), on December 14, 2007, that certain property (located in Belmont, NY, known as the "Belmont truck stop plaza") as defined in that certain Mortgage, to be dated and recorded by Belmont Properties no later than December 14, 2007, made by Belmont Properties and a wholly owned subsidiary of Properties, in favor of TPSI, substantially in the form attached hereto as Exhibit B-3 (as amended, restated, supplemented or modified from time to time, " Mortgage C "); and



(iv) if such property is owned by Nova Ten Realty Corp., a Delaware corporation ("Carney's Point Properties" and, together with Clark's Ferry Properties, Frystown Properties and Belmont Properties, each a "Mortgagor" and, collectively, the "Mortgagors"), on December 14, 2007, that certain property (located in Carney, NJ, known as the "Carney's Point truck stop plaza") as defined in that certain Mortgage, to be dated and recorded by Carney's Point Properties no later than December 14, 2007, made by Carney's Point Properties and a wholly owned subsidiary of Properties, in favor of TPSI, substantially in the form attached hereto as Exhibit B-4 (as amended, restated, supplemented or modified from time to time, "Mortgage D" and, together with Mortgage A, Mortgage B and Mortgage C, the "Mortgages").





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(b) In the event that Properties or a Mortgagor enters into an agreement, on or before December 14, 2007, to sell, transfer, convey or otherwise dispose of the properties identified in Sections 1.6(a)(iii) or l.6(a)(iv) above, then:



(i) Properties shall provide TPSI with perfected security interests in additional property or properties owned by Properties or one or more affiliates thereof with a Net Mortgage Value (based on the most recent appraisals thereof in the possession of Properties and provided to TPSI) equal to or in excess to the Net Mortgage Value of the property or properties that was sold (based on the appraised value as set forth on Schedule II or a more recent third party independent appraisal prepared subsequent to the date hereof, if any), to serve as substitute collateral for the Indebtedness; provided that any such additional property or properties must be satisfactory to TPSI in its reasonable discretion and that the All American Entities shall, within five business days of the closing of the sale of such property or properties, prepare and record a mortgage or other similar security instrument, in form and substance substantially identical to the Mortgages (except for changes required by applicable law or that reflect the different description, location or nature of the applicable property), in connection with each such additional property or properties and, upon proper recording thereof, such mortgage or other similar security instrument shall constitute a " Mortgage " hereunder and such substitute property shall constitute a "Mortgaged Premises" hereunder; and



(ii) if such sale, transfer, conveyance or other disposition was of the property identified in Section 1.6(a)(iii) or 1.6(a)(iv) above, then Properties shall cause to be paid to TPSI (out of proceeds of such sale, transfer, conveyance or other disposition) any amount in excess of $3,000,000 received by Belmont Properties, Carney's Point Properties, any All American Entity or any of their respective affiliates in consideration for such property.



(c) Not later than January 15, 2008, the All American Entities shall take all steps necessary to cause the Crown Mortgage identified on Schedule III relating to the Belmont truck stop Plaza to be terminated and released and shall have provided TPSI any and all documentation requested by TPSI to confirm the release thereof.



(d) Not later than January 15, 2008, the All American Entities shall take all steps necessary to cause Mortgage A and Mortgage B to represent a second priority lien (having priority over all other consensual liens and security interests, except for the liens represented by the FMAC Documents identified on Schedule III) on the Mortgaged Premises subject to Mortgage A and Mortgage B, as applicable, and shall provide to TPSI any and all documentation requested by TPSI to confirm the release of the any and all prior mortgages or other liens on such property and the continued validity and first priority of Mortgage A and Mortgage B.



(e) In addition, unless all the outstanding Indebtedness has been repaid, not later than the date that is 21 months after the Effective Date, the All American Entities shall take all steps necessary to cause Mortgage B to represent a first priority (as opposed to second priority) lien on the premises subject to Mortgage B, and shall provide to TPSI any and all documentation requested by TPSI to confirm the release of the any and all prior mortgages or other liens on such property and the continued validity and first priority of Mortgage B. If, thereafter, the All American Entities reduce the outstanding balance of the Indebtedness to an amount less than $5,000,000 and TPSI shall have received evidence satisfactory to it in its sole discretion of the continued validity and first priority lien represented by Mortgage B, then TPSI shall take all steps reasonably necessary to terminate the security interest represented by Mortgage A.





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1.7 Increase in Prepayment Advance. If, as of December 14, 2007 or, if Section 1.6(b) is applicable, the date that is five business days following the closing of the sale of such property or properties, the Mortgages have been timely recorded as provided in Section 1.6(a) or Section 1.6(b), as applicable, then TPSI hereby agrees to increase the Prepayment Advance set forth on Schedule I to $1,800,000, and the following adjustments shall thereafter be deemed to have been made: (i) the aggregate amount of the Able/Plazas Note shall be increased by $250,000; (ii) the aggregate amount of Indebtedness shall be increased by $250,000; and (iii) the Threshold Amount shall be increased by $250,000.



ARTICLE 2

CONDITIONS PRECEDENT



As conditions precedent to TPSI's obligation to execute and deliver this Agreement and accept delivery of the Notes, the following obligations (the "Conditions Precedent") shall have been fulfilled:



2.1 Mortgages. (i) Mortgage A and Mortgage B shall have been executed and delivered and the forms of the Mortgages shall be in a form sufficient to, upon recordation as provided herein, create a valid lien and security interest in the Mortgaged Premises under and as defined in the applicable Mortgage, and (ii) all filings, recordations or other actions necessary or desirable to cause the security interests described in clause (i) to be perfected, prior to all other consensual liens other than the mortgages, pledges, liens, charges, reservations, covenants, restrictions, security interests or other encumbrances set forth on Schedule III (each, in the amount thereof on the date hereof, a "Permitted Encumbrance").



2.2 Closing Certificates.



(a) Properties shall have delivered to TPSI a certificate of the secretary of Properties, certifying true and correct copies of (i) corporate resolutions, in effect on the Effective Date, of Properties' and each Mortgagor's board of directors authorizing the execution and delivery by Properties and each Mortgagor of, and the performance by Properties and each Mortgagor of its obligations under, the Loan Documents to which it is a party, (ii) the certificate of incorporation and bylaws of Properties and each Mortgagor in effect as of the Effective Date, and (iii) all documents related to any of the Permitted Encumbrances or the indebtedness related thereto.



(b) Able and Plazas shall have delivered to TPSI certificates of the secretary of each of Able and Plazas, certifying true and correct copies of (i) corporate resolutions, in effect on the Effective Date, of Able and Plazas, respectively, authorizing the execution and delivery by Able and Plazas, respectively, of, and the performance by Able and Plazas, respectively, of their respective obligations under, the Loan Documents to which they are party, (ii) the certificate of incorporation and bylaws of Able and Plazas, respectively, in effect as of the Effective Date, and (iii) all documents related to any of the Permitted Encumbrances or the indebtedness related thereto.





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2.3 Legal Opinions. TPSI shall have received (a) a legal opinion, of counsel to Properties and the Mortgagors, regarding the enforceability against each of Properties and the Mortgagors of the Loan Documents to which it is a party, and (b) a legal opinion, of counsel to Able and Plazas, regarding the enforceability against each of Able and Plazas, of the Loan Documents to which it is a party, in each case in form and substance satisfactory to TPSI.

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