exv10w7






Exhibit 10.7




Execution Version




FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT




     THIS FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this “Amendment”) is made and
entered into as of June 30, 2009, by and between SWISHER INTERNATIONAL, INC., a Nevada corporation
(the “Borrower”), WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association with its principal office in Charlotte, North
Carolina (the “Bank”) and the other Persons party hereto for the purposes set forth herein.



BACKGROUND STATEMENT




     A. The Borrower and the Bank are parties to a Credit Agreement, dated as of November 14, 2005,
as amended by that certain First Amendment to Credit Agreement dated as of April 26, 2006, by that
certain Second Amendment and Waiver to Credit Agreement dated as of September 8, 2006, by that
certain Third Amendment and Waiver to Credit Agreement dated as of March 21, 2008 and by that
certain Fourth Amendment and Waiver to Credit Agreement dated as of June 25, 2008 (as further
amended, modified, supplemented, or restated from time to time, the “Credit Agreement”),
pursuant to which the Bank has made available to the Borrower a revolving credit facility in the
aggregate principal amount of $10,000,000. Capitalized terms used in this Amendment that are not
otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.



     B. The Borrower is currently in default under the Credit Agreement as a result of the Events
of Default set forth on Schedule A hereto which have occurred and are continuing as of the
date hereof (collectively, the “Specified Events of Default”). The Borrower has requested
that the Bank waive the Specified Events of Default. The Bank has agreed to waive the Specified
Events of Default as set forth herein.



     C. The Borrower has requested that certain amendments be made to the Credit Agreement. The
Bank has agreed to amend the Credit Agreement as requested by the Borrower as set forth herein.



STATEMENT OF AGREEMENT




     NOW,
THEREFORE, in consideration of the foregoing premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower and the
Bank hereby agree as follows:







 









 








ARTICLE I




AMENDMENTS TO CREDIT AGREEMENT



     1.1 Amendment to Section 1.1 (Defined Terms).



     (a) The Borrower and the Bank hereby agree that the definition of “Revolving Credit
Termination Date” in Section 1.1 of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:




“Revolving Credit Termination Date” shall mean the date of the
earliest to occur of the following: (i) September 30, 2009; (ii) the date on
which the Bank makes demand for payment of the Revolving Loans in accordance
with Article VIII; (iii) such date of termination as is mutually agreed upon
by the Bank and the Borrower; and (iv) the date after all Obligations have
been paid in full and the Bank is no longer obligated to make Revolving Loans
hereunder.



ARTICLE II




WAIVER



     Based upon the representations and warranties contained herein, the Bank hereby waives the
Specified Events of Default and any remedy the Bank would be entitled to as a result thereof. This
waiver is limited as specified and shall not constitute or be deemed to constitute an amendment,
modification or waiver of any provision of the Credit Agreement or a waiver of any Default or Event
of Default except as expressly set forth herein with respect to the Specified Events of Default.



ARTICLE III




REPRESENTATIONS AND WARRANTIES



     The Borrower hereby represents and warrants that:



     3.1 Representations in Credit Agreement. The representations and warranties of the
Borrower set forth in the Credit Agreement are true and correct in all material respects as of the
date hereof, except to the extent such representations and warranties relate solely to or are
specifically expressed as of a particular date or period.



     3.2 Compliance with Credit Agreement. After giving effect to this Amendment, the
Borrower is in compliance with all covenants, terms and provisions set forth in the Credit
Agreement to be observed or performed by it.



     3.3 Due Authorization. This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and each of this Amendment,








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and the Credit Agreement, constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms and each of the other Credit Documents
constitutes the legal, valid and binding obligation of the Borrower enforceable against it in
accordance with its terms.




     3.4 No Event of Default. Except for the Specified Events of Default that are being
waived pursuant to this Amendment, no Default or Event of Default under any of the Credit
Documents has occurred or is continuing.



     3.5 Continuing Security Interests. All obligations of the Borrower, the Subsidiary
Guarantors and HB Service and its Subsidiaries under the Credit Agreement and the other Credit
Documents continue to be or will be secured by the Bank’s security interests in all of the
collateral granted under the Credit Agreement and the Security Documents, and nothing herein
will affect the validity, enforceability, perfection or priority of such security interests.



     3.6 No Defenses. The Borrower does not have any right of setoff, counterclaim, or
defense to payment of its respective liabilities or obligations under the Credit Agreement. The
Bank hereby expressly reserves all rights and remedies it may have against the Borrower and all
other Persons who may be or may hereafter become secondarily liable for the repayment of the
obligations under the Credit Agreement.



ARTICLE IV




COVENANTS



     4.1 Delivery of Audited Financial Statements. On or prior to July 31, 2009, the
Borrower shall deliver to the Bank an audited consolidated balance sheet of each of the Borrower
and its Subsidiaries, and HB Service and its Subsidiaries, separately and on a combined basis, in
each case as of the close of the Fiscal Year ending December 31, 2008, and audited consolidated
statements of income and cash flows for each of the Borrower and its Subsidiaries and HB Service
and its Subsidiaries, separately and on a combined basis, in each case for such Fiscal Year,
including the notes to each, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year, each prepared by an independent certified
public accountant reasonably acceptable to the Bank, in accordance with GAAP applied on a basis
consistent with that of the preceding year or containing disclosure of the effect on the financial
position or results of operation of any change in the application of accounting principles and
practices during the year, and each accompanied by a report thereon by such certified public
accountant containing an opinion that is not qualified with respect to scope limitations imposed
by the Borrower or HB Service, as the case may be, or its respective Subsidiaries or with respect
to accounting principles followed by such entity or its Subsidiaries not in accordance with GAAP.



     4.2 Delivery of Compliance Certificate. Concurrently with the delivery of the
financial statements described in Section 4.1, the Borrower shall deliver to the Bank a Compliance
Certificate with respect to the period covered by the financial statements being delivered
thereunder together with a Covenant Compliance Worksheet reflecting the computation of the
financial covenants set forth in Article VI of the Credit Agreement as of the last day of the
period covered by such financial statements, executed by the president or chief financial officer
of the Borrower.







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ARTICLE V




CONDITIONS TO EFFECTIVENESS



     This Amendment shall become effective as of the date hereof upon the satisfaction of each of
the following conditions precedent:



     (a) The Bank shall have received a duly executed counterpart of this Amendment from each of
the Borrower, the Subsidiary Guarantors, HB Service and each of its Subsidiaries and H. Wayne
Huizenga (collectively, the “Amendment Parties”);



     (b) The Borrower shall have paid to the Bank an amendment fee in the amount of $2,500.00;



     (c) The Bank shall have received a fully executed subordination agreement, executed by H.
Wayne Huizenga, a shareholder of HB Service, and Royal Palm Mortgage Group, LLC, a Florida limited
liability company (“Royal Palm”), expressly subordinating in right of payment and
performance any and all Indebtedness of HB Service to Mr. Huizenga or Royal Palm to the obligations
of HB Service to the Bank under the HB Service Guaranty and the $15,000,000 HB Service Credit
Agreement, on terms reasonably satisfactory to the Bank;



     (d) The Borrower shall have paid all reasonable out-of-pocket costs and expenses of the Bank
in connection with the preparation, negotiation, execution and delivery of this Amendment
(including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Bank with respect thereto); and



     (e) The Bank shall have received such other documents, certificates, opinions, instruments and
other evidence as the Bank may reasonably request, all in a form and substance satisfactory to the
Bank and its counsel.



ARTICLE VI




ACKNOWLEDGEMENTS; REPRESENTATIONS



     6.1 Amendment Parties. Each of the Amendment Parties hereby approves and
consents to the transactions contemplated by this Amendment, confirms and agrees that, after giving
effect to this Amendment, each of the Credit Agreement and the other Credit Documents to which it
is a party remains in full force and effect and enforceable against it in accordance with its terms
and shall not be discharged, diminished, limited or otherwise affected in any respect, and
represents and warrants to the Bank that it has no knowledge of any claims, counterclaims, offsets,
or defenses to or with respect to its obligations under the Credit Documents, or if it has any such
claims, counterclaims, offsets, or defenses to the Credit Documents or any transaction related to
the Credit Documents, the same are hereby waived, relinquished, and released in consideration of
the execution of this Amendment. This acknowledgement and confirmation by each of the Amendment
Parties is made and delivered to induce the Bank to enter into this Amendment and continue to
extend credit to the Borrower under the Credit Documents, and each of the Amendment Parties
acknowledges that the Bank








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would not enter into this Amendment and continue to extend such credit in the absence of the
acknowledgement and confirmation contained herein.




     6.2 Swisher Guarantors. Each of the Subsidiary Guarantors, HB Service and each
of its Subsidiaries and H. Wayne Huizenga (collectively, the “Swisher Guarantors”) further
represents that it has knowledge of the Borrower’s and the other Amendment Parties’ financial
condition and affairs and that it has adequate means to obtain from the Borrower and the other
Amendment Parties on an ongoing basis information relating thereto and to the Borrower’s and the
other Amendment Parties’ ability to pay and perform the their respective obligations under the
Credit Documents, and agrees to assume the responsibility for keeping, and to keep, so informed for
so long as the guaranty of each such Swisher Guarantor remains in effect. Each Swisher Guarantor
agrees that the Bank shall have no obligation to investigate the financial condition or affairs of
the Borrower or any of the Amendment Parties for the benefit of any Swisher Guarantor nor to advise
any Swisher Guarantor of any fact respecting, or any change in, the financial condition or affairs
of the Borrower or any of the Amendment Parties that might become known to the Bank at any time,
whether or not the Bank knows or believes or has reason to know or believe that any such fact or
change is unknown to any Swisher Guarantor, or might (or does) materially increase the risk of any
Swisher Guarantor as guarantor, or might (or would) affect the willingness of any Swisher Guarantor
to continue as a guarantor of the obligations of the Borrower under the Credit Documents. These
representations and agreements by each of the Swisher Guarantors are made and delivered to induce
the Bank to enter into this Amendment and continue to extend credit to the Borrower under the
Credit Documents, and each of the Swisher Guarantors acknowledges that the Bank would not enter
into this Amendment and continue to extend such credit in the absence of the representations and
agreements contained herein.



ARTICLE VII




GENERAL



     7.1 Full Force and Effect. This Amendment is limited as specified and, except as
specifically set forth herein, shall not constitute a modification, acceptance or waiver of any
other provision of any of the Credit Documents. The Credit Agreement, as amended by this Amendment,
shall continue to be in full force and effect in accordance with the provisions thereof on the date
hereof. From and after the date hereof, any reference to the Credit Agreement in any of the
Security Documents or other Credit Documents shall mean the Credit Agreement as amended by the
Amendment and as may be further amended, modified, restated, or supplemented from time to time.
This Amendment shall be a Credit Document under the Credit Agreement.



     7.2 Applicable Law. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North Carolina.



     7.3 Counterparts; Execution. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument. The exchange of copies of this Amendment and of signature
pages by facsimile transmission shall constitute effective execution and delivery of this







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Amendment and such copies may be used in lieu of the original Amendment for all purposes. Delivery
of an executed counterpart of a signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Amendment.




     7.4 Expenses. The Borrower agrees to pay on demand all reasonable out-of-pocket
expenses incurred by the Bank in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, all reasonable attorneys’ fees.



     7.5 Further Assurances. Each of the Amendment Parties shall execute and deliver to the
Bank such documents, certificates, and opinions as the Bank may reasonably request to effect the
amendments contemplated by this Amendment and to continue the existence, perfection and first
priority of the Bank’s security interests in the collateral securing the obligations under the
Credit Documents.



     7.6 Headings. The headings of this Amendment are for the purposes of reference only
and shall not affect the construction of this Amendment.



[The remainder of this page is left blank intentionally.]




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     IN WITNESS WHEREOF, the parties hereto have caused tins Fifth Amendment and Waiver to Credit
Agreement to be executed and delivered by their duly authorized officers all as of the date first
above written.



	 	 	 	 	 
	 	SWISHER INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	Name:  	Hugh H. Cooper 	 
	 	Title:  	Chief Financial Officer 	 
	 



[Signature Pages Continued on the Following Page]




Signature Page to Fifth Amendment and Waiver to Credit Agreement








 









 








	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Cavan J. Harris
 	 
	 	 	Cavan J. Harris	 
	 	 	Senior Vice President 	 
	 



[Signature Pages Continued on the Following Page]




Signature Page to Fifth Amendment and Waiver to Credit Agreement








 









 








SUBSIDIARY GUARANTORS:

(For purposes of Articles VI and VII only)




SWISHER HYGIENE FRANCHISE CORP.

SWISHER PEST CONTROL CORP.

SWISHER MAIDS, INC.




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	Name:  	Hugh H. Cooper 	 
	 	Title:  	Chief Financial Officer 	 
	 



SHFC BUFFALO, LLC

SHFC MINNEAPOLIS, LLC

SHFC OKLAHOMA, LLC

SHFC OPERATIONS, LLC

SHFC ARIZONA, LLC

SHFC TEXAS, LLC




	 	 	 	 	 
	 	 	 
	 	By:  	 /s/ Hugh H. Cooper
 	 
	 	Name:  	Hugh H. Cooper 	 
	 	Title:  	Chief Financial Officer 	 
	 



[Signature Pages Continued on the Following Page]




Signature Page to Fifth Amendment and Waiver to Credit Agreement








 









 








HB SERVICE AND ITS SUBSIDIARIES:

(For purposes of Articles VI and VII only)




	 	 	 	 	 
	 	HB SERVICE, LLC

 	 
	 	By:  	/s/ Hugh H. Cooper
 	 
	 	Name:  	Hugh H. Cooper 	 
	 	Title:  	Chief Financial Officer 	 
	 



SERVICE BALTIMORE, LLC

SERVICE BEVERLY HILLS, LLC

SERVICE BIRMINGHAM, LLC

SERVICE CALIFORNIA, LLC

SERVICE CAROLINA, LLC

SERVICE CENTRAL FL, LLC

SERVICE CHARLOTTE LLC

SERVICE CHATTANOOGA, LLC

SERVICE CINCINNATI, LLC

SERVICE COLUMBIA, LLC

SERVICE COLUMBUS, LLC

SERVICE DC, LLC

SERVICE DENVER, LLC

SERVICE FCS, LLC

SERVICE FLORIDA, LLC

SERVICE FRESNO, LLC

SERVICE GAINESVILLE, LLC

SERVICE GOLD COAST, LLC

SERVICE GREENSBORO, LLC

SERVICE GREENVILLE, LLC

SERVICE GULF COAST, LLC

SERVICE HOUSTON, LLC

SERVICE INDIANAPOLIS, LLC

SERVICE LAS VEGAS, LLC

SERVICE LOUISVILLE, LLC

SERVICE MEMPHIS, LLC

SERVICE MIDATLANTIC, LLC

SERVICE MIDWEST, LLC

SERVICE NASHVILLE, LLC

SERVICE NEW ORLEANS, LLC

SERVICE NEW YORK, LLC

SERVICE NORTH, LLC

SERVICE NORTH-CENTRAL, LLC

SERVICE OKLAHOMA CITY, LLC

SERVICE PHILADELPHIA, LLC

SERVICE PHOENIX, LLC




Signature Page to Fifth Amendment and Waiver to Credit Agreement








 









 








SERVICE RALEIGH, LLC

SERVICE SALT LAKE CITY, LLC

SERVICE SEATTLE, LLC

SERVICE SOUTH, LLC

SERVICE ST. LOUIS, LLC

SERVICE TALLAHASSEE, LLC

SERVICE TAMPA, LLC

SERVICE TRI-CITIES, LLC

SERVICE VIRGINIA, LLC

SERVICE WEST COAST, LLC




	 	 	 	 	 
	 	 	 
	 	By:  	                                      /s/ Hugh H. Cooper
 	 
	 	Name:  	Hugh H. Cooper 	 
	 	Title:  	Chief Financial Officer 	 
	 



[Signature Pages Continued on the Following Page]




Signature Page to Fifth Amendment and Waiver to Credit Agreement









 









 











	 	 	 	 	 
	 	 	 
	 	/s/ H. Wayne Huizenga
 	 
	 	H. WAYNE HUIZENGA 	 
	 	(For purposes of Articles VI and VII only) 	 
	 



Signature Page to Fifth Amendment and Waiver to Credit Agreement





 









 








Schedule A




Specified Events of Default




	1.	 	The failure to maintain the required minimum Fixed Charge Coverage Ratio pursuant to Section
6.1 of the Credit Agreement for (i) the period ending December 31, 2008, (ii) the period
ending March 31, 2009, and (iii) the period ending June 30, 2009.
	 
	2.	 	The failure to maintain the required minimum Consolidated Net Worth pursuant to Section 6.2
of the Credit Agreement for (i) the period ending September 30, 2008, (ii) the period ending
December 31, 2008, (iii) the period ending March 31, 2009 and (iv) the period ending June 30,
2009.
	 
	3.	 	Maintaining a Funded Debt to EBITDA Ratio in excess of the maximum ratio permitted
pursuant to Section 6.3 of the Credit Agreement for (i) the period ending December 31,
2008, (ii) the period ending March 31, 2009 and (iii) the period ending June 30, 2009.
	 
	4.	 	The failure to deliver (i) the unaudited financial statements of the Borrower and its
Subsidiaries and HB Service and its Subsidiaries within 45 days after the close of (x) the
Fiscal Quarter ending September 30, 2008 and (y) the Fiscal Quarter ending March 31, 2009,
pursuant to Section 5.1(a) of the Credit Agreement, and (ii) the Compliance Certificate to be
delivered therewith pursuant to Section 5.1(c) of the Credit Agreement.
	 
	5.	 	The failure to deliver (i) the audited financial statements of the Borrower and its
Subsidiaries and HB Service and its Subsidiaries within 120 days after the close of the Fiscal
Year ending December 31, 2008, pursuant to Section 5.1(b) of the Credit Agreement, (ii) the
certificate from the independent certified public accountant to be delivered therewith
pursuant to Section 5.1(c) of the Credit Agreement and (iii) the Compliance Certificate to be
delivered therewith pursuant to Section 5.1(c) of the Credit Agreement.
	 
	6.	 	The incurrence of indebtedness by Service South, LLC in the aggregate principal amount of
$2,700,000 pursuant to the Secured Promissory Notes, dated May 1, 2009, in favor of MI-Jenn
Ventures, Inc. and Harold and Joan Cumbie and the related letter of credit issued on behalf of
Service South, LLC by Wachovia Bank, National Association, in favor of the Harold Cumbie to
secure such indebtedness, in violation of Section 7.2 of the Credit Agreement.