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CONSENT AND SIXTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT

Security Agreement

CONSENT AND SIXTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT | Document Parties: Congress Financial Corporation | H & W Petroleum Company, Inc | SMF Energy Corporation | SMF Services, Inc | Streicher Mobile Fueling, Inc | Wachovia Bank, National Association You are currently viewing:
This Security Agreement involves

Congress Financial Corporation | H & W Petroleum Company, Inc | SMF Energy Corporation | SMF Services, Inc | Streicher Mobile Fueling, Inc | Wachovia Bank, National Association

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Title: CONSENT AND SIXTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Governing Law: Florida     Date: 9/8/2008
Industry: Oil and Gas Operations     Sector: Energy

CONSENT AND SIXTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, Parties: congress financial corporation , h & w petroleum company  inc , smf energy corporation , smf services  inc , streicher mobile fueling  inc , wachovia bank  national association
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CONSENT AND SIXTEENTH AMENDMENT

TO LOAN AND SECURITY AGREEMENT

 

THIS CONSENT AND SIXTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is made and entered into as of September 2, 2008, by and among SMF Energy Corporation , a Delaware corporation and successor-by-merger to Streicher Mobile Fueling, Inc., a Florida corporation ("SMF"); SMF Services, Inc. , a Delaware corporation ("SSI"); H & W Petroleum Company, Inc. , a Texas corporation ("H & W" and, together with SMF and SSI, collectively, "Borrower"); and Wachovia Bank, National Association , a national banking association and successor-by-merger to Congress Financial Corporation (Florida) ("Lender").

 

RECITALS

 

A.   Borrower and Lender are parties to that certain Loan and Security Agreement dated September 26, 2002 (as at any time amended, restated, supplemented or otherwise modified, the "Loan Agreement"). The Obligations under (and as defined in) the Loan Agreement are guaranteed by Streicher Realty, Inc. , a Florida corporation ("Guarantor").

 

B.   The parties hereto desire to amend the Loan Agreement upon the terms and subject to the conditions hereinafter set forth.

 

NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) in hand paid and other good and valuable consideration, the receipt and sufficiency of which are hereby severally acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

1.   Each capitalized term used in this Amendment, unless otherwise defined herein, shall have the meaning ascribed to such term in the Loan Agreement.

 

2.   Borrower has requested that Lender consent to SMF's incurrence of unsecured Subordinated Debt pursuant to one or more Convertible Promissory Notes dated on or around September 2, 2008, in form and substance similar to the form of Convertible Promissory Note attached hereto as Exhibit A with only such changes as may be disclosed to and accepted by Lender in writing in its discretion, executed by SMF in favor of certain investors (the "September 2008 Subordinated Debt Issuance"). Lender hereby consents to the September 2008 Subordinated Debt Issuance, provided that: (a) the proceeds of such Subordinated Debt shall be fully funded and received by SMF on or prior to December 31, 2008, and shall be used by Borrower exclusively for working capital purposes, (b) Lender shall have received and approved, prior to the date that such Subordinated Debt is incurred, copies of the proposed documents intended to evidence the September 2008 Subordinated Debt Issuance, with true, correct and complete copies of such executed documents to be furnished to Lender promptly after execution, (c) such Subordinated Debt shall be subject and subordinate to the payment of the Obligations pursuant to Subordination Agreements in form and substance similar to the form of Subordination Agreement attached hereto as Exhibit B with only such changes as may be disclosed to and accepted by Lender in writing in its discretion, (d) such Subordinated Debt shall otherwise be subject to the terms of Section 9.9(e) of the Loan Agreement, and (e) the total aggregate principal amount Borrower is allowed to receive under the September 2008 Subordinated Debt Issuance and under the New Preferred Stock Issuance, as contemplated by (and as defined in) that certain consent letter dated as of August 15, 2008, by Lender to Borrower (the "August 2008 Consent Letter"), cannot exceed $1,500,000.

 

3.   Subject to the satisfaction of each of the conditions precedent set forth in this Amendment, the Loan Agreement is hereby amended by deleting Section 1.37 of the Loan Agreement in its entirety and by substituting in lieu thereof the following:

 

 

 


 

"Interest Rate" shall mean, as to Prime Rate Loans, the rate of two and three-quarters percent (2.75%) per annum in excess of the Prime Rate and, as to Eurodollar Rate Loans, the rate of five and one-half percent (5.50%) per annum in excess of the Adjusted Eurodollar Rate (based on the London Interbank Offered Rate applicable for the Interest Period selected by Borrower as in effect two (2) Business Days prior to the commencement of the Interest Period, whether such rate is higher or lower than any rate previously quoted to Borrower); provided , that , notwithstanding anything to the contrary contained herein, the Interest Rate shall mean the rate of five and three-quarters percent (5.75%) per annum in excess of the Prime Rate as to Prime Rate Loans and the rate of eight and one-half percent (8.50%) per annum in excess of the Adjusted Eurodollar Rate as to Eurodollar Rate Loans, at Lender's option, without notice, (a) either (i) for the period on and after the date of termination or non-renewal hereof until such time as all Obligations are indefeasibly paid and satisfied in full in immediately available funds, or (ii) for the period from and after the date of the occurrence of any Event of Default, and for so long as such Event of Default is continuing as determined by Lender and (b) on the Revolving Loans at any time outstanding in excess of the Borrowing Base or the Revolving Loan Limit (whether or not such excess(es) arise or are made with or without Lender's knowledge or consent and whether made before or after an Event of Default).

 

4.   Borrower hereby ratifies and reaffirms the Obligations, each of the Financing Agreements and all of Borrower's covenants, duties, indebtedness and liabilities under the Financing Agreements.

 

5.   To induce Lender to enter into this Amendment and to grant the accommodations set forth herein, Borrower


 
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