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NOTE PURCHASE AGREEMENT

Note Purchase Agreement

NOTE PURCHASE AGREEMENT | Document Parties: Streicher Mobile Fueling, Inc., You are currently viewing:
This Note Purchase Agreement involves

Streicher Mobile Fueling, Inc.,

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Title: NOTE PURCHASE AGREEMENT
Governing Law: Florida     Date: 9/8/2005
Industry: Oil and Gas Operations     Sector: Energy

NOTE PURCHASE AGREEMENT, Parties: streicher mobile fueling  inc.
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Exhibit 10.2

 

NOTE PURCHASE AGREEMENT

 

This Note Purchase Agreement  (this “ Agreement ”) is made and entered into as of the 1 st day of September, 2005, between Streicher Mobile Fueling, Inc., a Florida corporation (the “ Company ”) and   the investors listed on Exhibit A (each, a “ Purchaser ” and collectively, the “ Purchasers ” and, together with the Company, the “ Parties ”) and is delivered and executed in connection with the Company’s sale of Units (as defined below).

 

1.   DESCRIPTION OF UNITS.

 

(a)   This Agreement sets forth the terms and conditions under which each Purchaser will purchase such number of Units as set forth opposite such Purchaser’s name on Exhibit A (the “ Transaction ”). The purchase price for each Unit is $500,000. Each Unit shall consist of: (i) a $500,000 aggregate principal amount 10% promissory note due August 31, 2010 in the form attached as Exhibit B (the “ Note ”), to be collateralized by a first priority security interest on the collateral described in the next sentence (the “ Collateral ”) and (ii) a warrant to purchase 50,000 shares of the Company’s common stock, $.01 par value (“ Common Stock ”), in the form attached as Exhibit C (the “ Warrant ”). The exercise price of the Warrant shall be a per share price equal to the closing bid price of the Common Stock on Nasdaq on the business day preceding the Closing Date; provided, however, that under no circumstances shall such price be less than the fair market value of the Common Stock on such date as determined by Nasdaq Stock Market Rule 4350(i)(1)(D)(i) or any successor rule. The Collateral will consist of specified physical assets (excluding any form of inventory) to be owned by the Company or a wholly owned subsidiary of the Company upon consummation of the Company’s next material acquisition (the “ Acquisition ”) to the extent such assets are not subject to the first priority security interest on the Company’s assets held by Wachovia Bank, National Association, successor by merger to Congress Financial Corporation (Florida) (“ Wachovia” ).

 

(b)   The offer and sale of Units by the Company is limited to “accredited investors” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended.

 

(c)   Except with respect to the Collateral, each Purchaser acknowledges that the payment of principal and interest on the Note will be subordinated (i) to the rights and interests of Wachovia pursuant to and in connection with, and the payment of all existing and future amounts owed by the Company to Wachovia under, the Loan and Security Agreement by and between Wachovia and the Company dated September 26, 2002, as amended (the “ Loan Agreement ”) and (ii) to any other credit facility into which the Company may subsequently enter to replace the Loan Agreement requiring that the lender rank in a senior position to other debt of the Company (the “ Replacement Facility ” and, together with the Loan Agreement, the “ Permitted Debt ”). The Purchasers and the Company acknowledge that the Note will be expressly subject to the terms and conditions of that certain Subordination Agreement effective as of January 21, 2003, by and among Wachovia, the Company and certain other parties as if Purchaser were a subordinating party thereto. Upon request, each Purchaser will execute and deliver such other documents and instruments as Wachovia or any current or subsequent commercial lender may reasonably request to acknowledge and effect the foregoing subordination.

 


2.   OFFER.

 

(a)   Each Purchaser, by signing this Agreement, (i) agrees to abide by, and be subject to, all applicable terms and conditions of the Note and the Warrant and (ii) offers to purchase the aggregate principal amount of Units, and for the aggregate purchase price, as set forth opposite such Purchaser’s name on Exhibit A (each such purchase price, an “ Investment Amount ” and collectively the “ Investment Amounts ”).

 

(b)   The Company shall have the right, in its sole and absolute discretion, to reject or accept each Purchaser’s offer to purchase Units pursuant to this Agreement. If the Company accepts Purchaser’s offer, the Company shall execute this Agreement and return a copy of the Agreement, and issue an original Note and an original Warrant, to Purchaser. If the Company rejects Purchaser’s offer, the Company shall return to Purchaser this Agreement, together with any payment made by Purchaser to the Company, without interest or deduction.

 

3.   CLOSING. The purchase and sale of the Units shall take place immediately upon execution of this Agreement and tender of the Investment Amounts (the “Closing”). Purchasers’ tender of the Investment Amounts shall constitute an agreement by the Purchasers to close.

 

4.   RECEIPT OF DOCUMENTS. Purchaser acknowledges receipt of a copy of: (a) this Agreement; (b) the Note; (c) the Warrant; (d) the form of Indenture attached as Exhibit D by and between the Company and indenture trustee for the holders of the Notes (the “ Trustee ”), dated of even date herewith (the “ Indenture ”); (e) the Company’s Annual Report on Form 10-K for the year ended June 30, 2004 (the “ 10-K ”); (f) the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005 (the “ 10-Q ”); and (g) the form of Security Agreement attached as Exhibit E by and between the Company and Trustee, to be executed upon consummation of the Acquisition (the “ Security Agreement ”); (collectively, the “ Documents ”). The 10-K, 10-Q and Proxy were furnished to the Purchasers via EDGAR.

 

5.   USE OF PROCEEDS; NO REFUNDS. The Investment Amounts shall be used by the Company: (a) to pay some or all of the cash portion of the Acquisition; and to the extent there are any remaining Investment Amounts, (b) for general working capital purposes. Upon execution and delivery of this Agreement by the Company to each Purchaser, the Investment Amounts shall not, under any circumstances, be refunded to such Purchaser.

 

6.   ADDITIONAL DEBT. The Company agrees that, after the Closing, it shall not issue any new or replacement debt, except for Permitted Debt, which ranks senior in any respect to the Notes, without the prior written approval of the holders of at least sixty-six and 2/3 percent (66 2 / 3 %) of the principal amount of the Notes. Nothing herein shall be deemed to impair or prevent the Company from incurring additional debt after the Closing, provided, however, that all such future debt must be expressly subordinated to the Permitted Debt.

 

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7.   CONDITIONS PRECEDENT. Notwithstanding anything to the contrary contained in this Agreement, the obligations of the Company to close the Transaction shall be contingent upon the following:

 

(a)   consent of Wachovia to the offering and the issuance of the Notes and the Warrants; and

 

(b)   consent of the holders of a majority of the principal amount outstanding of the Company’s 10% Senior Secured Notes due August 28, 2008 and the Company’s 10% Senior Secured Notes due January 24, 2010, to the offering and the issuance of the Notes and the Warrants.

 

8.   BOUND BY INDENTURE AND SECURITY AGREEMENT. By execution of this Agreement, Purchaser agrees that it will execute and be bound by the terms and conditions of the Indenture and the Security Agreement upon consummation of the Acquisition.

 

9.   REPRESENTATIONS AND WARRANTIES OF PURCHASER. Each Purchaser represents and warrants to the Company as follows:

 

(a)   Purchaser, either alone or through Purchaser’s representative, as that term is defined under Rule 501(h) of Regulation D under the Securities Act ( the “ Purchaser’s Representative ”), if any, has had an opportunity to ask questions of, and receive answers from, duly designated representatives of the Company concerning the terms and conditions of this Agreement and has been afforded an opportunity to examine such documents and other information which Purchaser or Purchaser’s Representative, if any, has requested for the purpose of answering any question Purchaser or Purchaser’s Representative, if any, may have concerning the business and affairs of the Company.

 

(b)   Purchaser’s principal residence or domicile is located in the State set forth opposite such Purchaser’s name on Exhibit A . Purchaser has received and reviewed this Agreement and the Documents and acknowledges the Company made available to Purchaser and Purchaser’s Representative, if any, at a reasonable time prior to the execution of this Agreement, the opportunity to ask questions and receive answers concerning the business and affairs of the Company and the terms and conditions of the sale of the Units, the Notes, the Warrants and the shares of Common Stock which may be obtained by exercise of the Warrants (collectively, the “ Securities ”) as contemplated by this Agreement and to obtain any additional information (which the Company possesses or can acquire without unreasonable effort or expense) as may be necessary to verify the accuracy of information furnished to Purchaser or Purchaser’s Representative, if any. Purchaser (i) is able to bear the loss of its entire investment without any material adverse effect on its economic stability, and (ii) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment to be made by Purchaser pursuant to this Agreement.

 

(c)   Purchaser and Purchaser’s Representative, if any, understand that the Securities are being offered and sold only to “accredited investors” (as that term is defined under Rule 501(a) of Regulation D), and Purchaser represents that Purchaser is an accredited investor. Purchaser and Purchaser’s Representative, if any understand the Company is relying on Purchaser with


 
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