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
|