SECURITY AGREEMENT
THIS
SECURITY AGREEMENT (this
“Security
Agreement”)
dated
August 8, 2007 is entered into by and between SMF Energy Corporation
(“SMF”),
a
Delaware corporation having its principal place of business at 000 X. Xxxxxxx
Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, H & W Petroleum
Company, Inc. (“H
& W”)
and
SMF Services, Inc. (“SSI”),
both
wholly owned subsidiaries of SMF having their principal place of business at
000
X. Xxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 and American
National Bank, a bank located at 0000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
(the “Trustee”),
as
indenture trustee for the holders (the “Holders”)
of
SMF’s 11½% Senior
Secured Convertible Notes due December 31, 2009
(the
“Notes”)
pursuant to an indenture between Company and Trustee of even date herewith
(the
“Indenture”).
SMF,
H & W and SSI taken together are referred to herein as “Company.”
WHEREAS,
Company
wishes to grant to the Trustee, for the benefit of Holders, a first priority
security interest in certain assets,
as
hereinafter enumerated, to secure the Notes; and
WHEREAS,
Company
and Wachovia Bank, National Association, successor by merger to Congress
Financial Corporation (Florida) (“Wachovia”),
are
parties to that certain Loan and Security Agreement dated September 26, 2002,
as
amended (the “Wachovia
Agreement”)
and
SMF and Wachovia, along with certain other persons, are parties to that certain
Subordination Agreement dated July 13, 2007 (the “Subordination
Agreement”).
NOW,
THEREFORE, in
consideration of the foregoing premises and to induce Holders to purchase the
Notes, Company hereby agrees as follows:
SECTION
1. DEFINITIONS.
As used
herein, the following terms shall have the following meanings, and shall be
equally applicable to both the singular and plural forms of
the
terms defined:
“Applicable
Law”
shall
mean (a) with respect to the Vehicles (as defined below), the law of the state
in which the Vehicles are titled, as set forth on Schedule
A
hereto
and (b) with respect to the Equipment (as defined below), the state in which
the
Equipment is located, as set forth on Schedule
A
hereto,
and (c) with respect to the Account, (as defined below) and the interpretation
and governing law of this Agreement generally, the law of the State of Florida
and the laws of the United States of America, as such laws now exist or may
be
changed or amended or come into effect in the future.
“Business
Day” shall
mean any day other than a Saturday, Sunday or public holiday or the equivalent
for banks in the State of Florida.
“Equipment”
shall
have the meaning given to it in the UCC.
“Event
of Default”
shall
mean any event specified in Section 7
hereof.
“GAAP” shall
mean generally accepted accounting principles in the United States of America,
as in effect from time to time.
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“Loan
Documents”
shall
mean, collectively, this Security Agreement, the Securities Purchase Agreement
between Holders and SMF of even date herewith (the “Securities
Purchase Agreement”)
evidencing the sale of the Notes and the warrants to purchase common stock
of
SMF (the “Warrants”),
the
Indenture, the Notes, the Warrants and all other documents,
agreements,
certificates,
instruments and opinions executed and delivered in connection therewith, as
the
same may be modified, extended, restated or supplemented from time to
time.
“Material
Adverse Change”
shall
mean, with respect to any Person, a material adverse change in the business,
operations, results of operations, assets, liabilities or condition (financial
or otherwise) of such Person taken as a whole.
“Material
Adverse Effect”
shall
mean, with respect to any Person, a material adverse effect on the business,
operations, results of operations, assets, liabilities or condition (financial
or otherwise) of such Person taken as a whole.
“Obligations”
shall
mean all indebtedness, obligations and liabilities of Company under the Notes
and this Security Agreement, whether on account of principal, interest,
indemnities, fees (including, without limitation, attorneys’ fees, marketing
fees, origination fees, collection fees and all other professionals’ fees),
costs, expenses, taxes or otherwise.
“Person”
shall
mean any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation,
institution,
entity, party or government (including any division, agency or department
thereof), and the successors, heirs and assigns of each.
“UCC”
means
the Uniform Commercial Code as from time to time in effect in the state of
Applicable Law; provided, however, that in the event that, by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of the secured parties’ security interest in any Collateral is governed
by the Uniform Commercial Code as in effect in a jurisdiction other than the
State of Applicable Law, the term “UCC’ shall mean the Uniform Commercial Code
as in effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions; provided, further, that if the UCC
is
amended after the date hereof, such amendment will not be given effect for
the
purposes of this Agreement if and to the extent the result of such amendment
would be to limit or eliminate any item of Collateral.
“Vehicles”
means
all vehicles covered by a certificate of title law of any state.
SECTION
2. CREATION
OF SECURITY INTEREST; COLLATERAL.
In
order
to secure the payment and performance of all the Obligations, Company hereby
assigns and grants to Holders a continuing general, first priority lien on
and
security interest in the following (hereinafter collectively referred to herein
as the “Collateral”):
(a)
all of H
& W’s right, title and interest in and to: (i) the Vehicles that are listed
on Schedule A
hereto
and shown on Schedule
A as
owned
by H & W, including future additions, parts, accessories, attachments,
substitutions, repairs, related intangibles and improvements and replacements
to
or of any listed Vehicle; and (ii) the Equipment
listed
on Schedule
A
hereto
and shown on Schedule
A as
owned
by H & W,
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including
future additions, parts, accessories, attachments, substitutions, repairs,
related intangibles and improvements and replacements to or of any such
Equipment; and (iii) any proceeds from the sale, assignment, or other transfer
of any such Vehicles or Equipment, including, without limitation, proceeds
of
insurance;
(b) all
of
SSI’s right, title and interest in and to: (i) the Vehicles listed on
Schedule A
hereto
and shown on Schedule
A as
owned
by SSI, including future additions, parts, accessories, attachments,
substitutions, repairs, related intangibles and improvements and replacements
to
or of any listed Vehicle; and (ii) the Equipment listed on Schedule
A
hereto
and shown on Schedule
A as
owned
by SSI, including future additions, parts, accessories, attachments,
substitutions, repairs, related intangibles and improvements and replacements
to
or of any such Equipment; and (iii) the intangible assets listed on Schedule
A
hereto
and shown on Schedule
A as
owned
by SSI; and (iv) any proceeds from the sale, assignment, or other transfer
of
any such Vehicles, Equipment, or intangible assets, including, without
limitation, proceeds of insurance;
(c) all
of
SMF’s right, title and interest in and to: (i) the Vehicles listed on
Schedule A
hereto
and shown on Schedule
A as
owned
by SMF, including future additions, parts, accessories, attachments,
substitutions, repairs, improvements and replacements to or of any Vehicle,
and
any proceeds from the sale, assignment, or other transfer of one or more
Vehicles, including, without limitation, proceeds of insurance; and (ii) certain
patents listed on Schedule A and shown on Schedule
A as
owned
by SMF; and (iii) any proceeds from the sale, assignment, or other transfer
of
any such Vehicles or patents, including, without limitation, proceeds of
insurance; and
(d) approximately
$1,141,000 in cash proceeds from prior sales of Vehicles and Equipment currently
being held in an interest bearing account (the “Trustee Account”)
by
Trustee that will be applied to the purchase of replacement Equipment and
Vehicles by Company, and any Vehicles and Equipment subsequently acquired with
such proceeds.
The
term
“Collateral” shall not include any property of Company that has been pledged to
Wachovia by or in connection with the Wachovia Agreement, including but not
limited to any “account” (as that term is used in the Uniform Commercial Code)
or any other right to payment arising out of or dervied from the sale of
inventory or the rendition of services by Company.
SECTION
3. COMPANY’S
REPRESENTATIONS AND WARRANTIES.
SMF,
H & W and SSI jointly and severally represent and warrant to
Holders as follows:
SECTION
3.1 Good
Standing; Qualified to do Business.
SMF is a
duly organized and validly existing corporation in good standing under the
laws
of the State of Delaware. H & W is a duly organized and validly existing
corporation in good standing under the laws of the State of Texas. SSI is a
duly
organized and validly existing corporation in good standing under the laws
of
the State of Delaware. Company has the power and authority to own its properties
and assets and to transact the businesses in which it is presently, or proposes
to be, engaged and is duly qualified and authorized to do business and is in
good standing in every jurisdiction in which the failure to be so qualified
could have a Material Adverse Effect on
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(i) Company,
(ii) Company’s ability to perform its obligations under the Loan Documents
or (iii) the rights of Holders or the Trustee under this
Agreement.
SECTION
3.2 Due
Execution, etc.
The
execution, delivery and performance by SMF, H & W and SSI of each
of the Loan Documents to which each of them is a party are within the powers
of
each of them, do not contravene their respective Articles of Incorporation
or
Certificate of Formation, as applicable, or Bylaws or Operating Agreement,
as
applicable, and do not (i) violate any law or regulation, or any order or
decree of any court or governmental authority, (ii) conflict with or result
in a breach of, or constitute a default under, any material indenture, mortgage
or deed of trust or any material lease, agreement or other instrument binding
on
Company or any of its properties, or (iii) require the consent,
authorization by or approval of or notice to, or filing or registration with,
any governmental authority or other Person except for Wachovia. This Security
Agreement is, and each of the other Loan Documents to which Company is or will
be a party when delivered will be, the legal, valid and binding obligation
of
SMF, H & W and SSI enforceable against each of them in accordance
with its terms.
SECTION
3.3 Solvency;
No Liens. On the
date
hereof, each of SMF, H & W and SSI is solvent, is paying its debts
as they become due and has sufficient capital to conduct its business. The
security interests granted herein constitute and shall at all times constitute
the first and only liens on the Collateral. Each of SMF, H & W and
SSI is the absolute owner of the Collateral shown on Schedule
A
to be
owned by it, with full right to pledge, sell, consign, transfer and create
a
security interest therein, free and clear of any and all claims or liens in
favor of any other Person, subject only to the Wachovia Inventory Rights
described in Section 3.8 hereof.
SECTION
3.4 No Judgments,
Litigation. No
judgments are outstanding against Company nor is there now pending or, to the
best of Company’s knowledge after diligent inquiry, threatened any litigation,
contested claim, or governmental proceeding by or against Company except
judgments and pending or threatened litigation, contested claims and
governmental proceedings which would not, in the aggregate, have a Material
Adverse Effect on Company.
SECTION
3.5 No Defaults.
On
the
date hereof, Company is not in material default under any material contract,
lease, or commitment to which it is a party or by which it is bound. Company
knows of no dispute regarding any contract, lease, or commitment which could
have a Material Adverse Effect on Company.
SECTION
3.6 Collateral
and Operating Locations. On
the
date hereof, the Collateral (other than mobile goods and Equipment in transit)
are kept at the locations listed on Schedule
B
hereto,
and Company is conducting operations from those locations listed on Schedule
C
hereto.
SECTION
3.7 No Events
of Default. No
Event
of Default has occurred and is continuing nor has any event occurred which,
with
the giving of notice or the passage of time, or both, would constitute an Event
of Default.
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SECTION
3.8 No
Limitation on Holders’ Rights. Except
as
permitted herein, none of the Collateral is subject to contractual obligations
that may restrict or inhibit Holders’ or Trustee’s rights or abilities to sell
or dispose of the Collateral or any part thereof after the occurrence of an
Event of Default except that neither any Holder nor Trustee may take any action
to repossess, seize, foreclose upon, sell or dispose of any tanks, shelves,
racks, containers or other Equipment that is used or required for the storage
or
preservation of Inventory (as defined in the Wachovia Agreement), packaging
machinery or other Equipment that Wachovia reasonably determines is necessary
for Wachovia to protect its security interest in, or exercise its remedies
with
respect to, the Inventory, until such time as Wachovia, acting in good faith
and
with reasonable diligence, has taken all action necessary to protect its
security interest in, or exercise its remedies with respect to, such Inventory
irrespective of any exercise of remedies against the Equipment by a Holder
or
the Trustee (the “Wachovia
Inventory Rights”).
SECTION
3.9 Perfection
and Priority of Security Interest.
This
Security Agreement creates a valid and, upon completion of all required filings
of financing statements, perfected, first priority and exclusive security
interest in the Collateral, securing the payment of all the
Obligations.
SECTION
3.10 Identifying
Information. Schedule A
hereto
sets forth the true and correct model number and serial number, vehicle
identification number or other identifying information of each item of
Collateral.
SECTION
4. COVENANTS
OF COMPANY.
SECTION
4.1 Existence,
etc. Company
will (i) maintain its existence and its current yearly accounting cycle, (ii)
maintain in full force and effect all licenses, bonds, franchises, leases,
trademarks, patents, contracts and other rights necessary or desirable to the
prudent conduct of its business, (iii) continue in the same general line of
business as presently conducted by it and (iv) comply with all applicable
laws and regulations of any federal, state or local governmental authority,
except for such laws and regulations the violations of which would not, in
the
aggregate, have a Material Adverse Effect on Company.
SECTION
4.2 Notice
to Trustee and Holders.
(a) As
soon
as possible, and in any event within five (5) days after Company learns of
it,
Company will give written notice to Trustee and Holders of (i) any
proceeding instituted or threatened to be instituted by or against Company
in
any federal, state, local or foreign court or before any commission or other
regulatory body (federal, state, local or foreign) which, in the opinion of
management, could have a Material Adverse Effect on Company, (ii) the
occurrence of any Material Adverse Change with respect to Company and
(iii) the occurrence of any Event of Default or event or condition which,
with notice or lapse of time or both, would constitute an Event of Default,
together with a statement of the action which Company has taken or proposes
to
take with respect thereto.
(b) Company
further covenants to provide all notices required by the Indenture and the
Notes.
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SECTION
4.3 Maintenance
of Books and Records. Company
will maintain books and records pertaining to the Collateral in such detail,
form and scope as Trustee shall
require in Trustee’s commercially reasonable judgment. Company agrees that
Trustee or Trustee’s agents, prior to an event of default and upon five (5) days
notice, may enter upon Company’s premises at any time and from time to time
during normal business hours, and at any time on and after the occurrence of
an Event
of
Default, for the purpose of inspecting the Collateral and any and all records
pertaining thereto.
SECTION
4.4 Insurance.
Company will
maintain insurance on the Collateral under such policies of insurance, with
such
insurance companies, in such amounts and covering such risks as are at all
times
satisfactory to Trustee. All such policies shall be made payable to Trustee,
for
the benefit of Holders, in case of loss, under a standard non-contributory
“lender” or “secured party” clause and are to contain such other provisions as
Trustee may reasonably require to protect Holders’ interests in the Collateral
and to any payments to be made under such policies. True copies of all original
insurance policies are to be delivered to Trustee, premium prepaid, with the
loss payable endorsement in favor of Trustee, for the benefit of Holders, and
shall provide for not less than thirty (30) days’ prior written notice to
Trustee and Holders of any alteration or cancellation of coverage. If Company
fails to maintain such insurance, Trustee may arrange for (at Company’s expense
and without any responsibility on Trustee’s or Holders’ part for) obtaining the
insurance. Upon an Event of Default and during the continuation thereof, and
unless Trustee shall otherwise agree with Company in writing, Trustee shall,
after giving prior written notice to Company and Wachovia, have the sole right,
in the name of Holders or Company, to file claims under any insurance policies,
to receive and give acquittance for any payments that may be payable thereunder,
and to execute any endorsements, receipts, releases, assignments, reassignments
or other documents that may be necessary to effect the collection, compromise
or
settlement of any claims under any such insurance policies.
SECTION
4.5 Taxes.
Company
will pay, when due, all taxes, assessments, claims and other charges (the
“Taxes”)
lawfully levied or assessed against
Company or the Collateral other than Taxes that are being diligently contested
in good faith by Company by appropriate proceedings promptly instituted and
for
which an adequate reserve is being maintained by Company in accordance with
GAAP. If any Taxes remain
unpaid after the date fixed for the payment thereof, or if any lien shall be
claimed therefor, then, without notice to Company, and on Company’s behalf,
Trustee may pay such Taxes, and the amount thereof shall be added to the
Obligations.
SECTION
4.6 Company
to Defend Collateral Against Claims; Fees on Collateral. Company
will defend the Collateral against all claims and demands of all Persons at
any
time claiming the same or any interest therein. Company will not permit any
notice creating or otherwise relating to liens on the Collateral or any portion
thereof to exist or be on file in any public office. Company shall promptly
pay,
when due, all transportation, storage and warehousing charges and license fees,
registration fees, assessments, charges, permit fees and taxes (municipal,
state
and federal) which may now or hereafter be imposed upon the ownership, leasing,
renting, possession, sale or use of
the
Collateral, excluding, however, all taxes on or measured by Holders’
income.
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SECTION
4.7 Notice
of Change
of Location, Structure or Identity.
Company
will not (i) change the location of SMF’s, H & W’s or SSI’s principal place
of business or (ii) establish any place of business other than those set forth
on Schedule
C
hereto or
(iii)
change the base location or permit the movement of any Collateral from the
locations specified in Schedule B
hereto
(other than the movement of Vehicles and Equipment in the ordinary course of
business) or (iv) transfer ownership of any Collateral from SMF, H & W or
SSI to SSI, SMF or H & W, or their successors in interest, as the case may
be, or (v) transfer ownership of any Collateral to another subsidiary of SMF
that has agreed to be joined as a party to this Agreement, or (vi) merge or
consolidate with any other Person (except for any merger or consolidation
between SMF and any of its wholly owned subsidiaries or among any of those
subsidiaries); or (vii) sell all or substantially all of its assets unless,
in
the case of any of (i), (ii), (iii), (iv), (v), (vi) or (vii), Company has
delivered to Trustee (A) prior written notice thereof and (B) duly executed
financing statements and other agreements
and instruments
(all in form and substance satisfactory to Trustee) necessary or, in the opinion
of Trustee, desirable to perfect and maintain in favor of Holders a first
priority security
interest in the Collateral. Notwithstanding anything to the contrary in the
immediately preceding sentence, Company may keep any Vehicle or item of
Equipment at any location in the United States provided that such Vehicle or
item of Equipment is covered by a certificate of title law in any state and
Holders’ security interest in any such Collateral is conspicuously marked on the
certificate of title thereof and Company has complied with the provisions of
Section 4.9
hereof.
SECTION
4.8 Use
of Collateral; Licenses. The
Collateral shall be operated and maintained by competent, qualified personnel
in
connection with Company’s business purposes, for the purpose for
which the
Collateral was designed and in accordance with applicable operating
instructions, laws and government regulations, and Company shall use every
reasonable precaution to prevent loss or damage to the Collateral from
accidents, fire and other hazards. The Collateral shall not be used or operated
for personal, family or household purposes. Company shall procure and maintain
in effect all orders, licenses, certificates, permits, approvals and consents
required by federal, state or local laws or by any governmental body, agency
or
authority in connection with the delivery, installation, use and operation
of
the Collateral.
SECTION
4.9 Further
Assurances.
Company
will, promptly upon request by Trustee, execute and deliver, or use its best
efforts to obtain, any document reasonably required by Trustee (including,
without limitation, warehouseman or processor disclaimers, mortgagee waivers,
landlord disclaimers, or subordination agreements with respect to the
Obligations and the Collateral), give any notices, execute and file any
financing statements, mortgages or other documents (all in form and substance
satisfactory to
Trustee), xxxx any chattel paper, deliver any chattel paper or instruments
to
Trustee, and take any other actions that are necessary or, in the opinion of
Trustee, desirable to perfect or continue the perfection and the first priority
of Holders’ security interest in the Collateral, to protect the Collateral
against the rights, claims, or interests of any Persons other than the Wachovia
Inventory Rights, or to effect the purposes of this Security Agreement. As
long
as amounts remain due to Holders from Company under the Loan Documents, Company
hereby authorizes Trustee or Holders to file one or more financing or
continuation statements, and amendments thereto, relating to all or any part
of
the Collateral without the signature of Company where permitted by law. A copy
of this Security Agreement or any financing statement covering the Collateral
or
any part thereof shall be sufficient as a
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financing
statement where permitted by law. To the extent required under this Security
Agreement, Company
will pay all reasonable costs incurred in connection with any of the foregoing.
Trustee will provide Company and Wachovia with prior written notice of any
actions proposed to be taken by Trustee as provided hereinabove.
SECTION
4.10 No
Disposition of Collateral. Without
the prior written approval of Trustee,
Company
will not in any way hypothecate or create or permit to exist any lien, security
interest, charge or encumbrance on or
other
interest in any of the Collateral, except for the lien and security interest
granted hereby. Company will not sell, transfer, assign, pledge, collaterally
assign, exchange or otherwise dispose of any of the Collateral without the
prior
written consent of Trustee, provided, however that no such consent shall be
required for the routine sale or other disposition of obsolete or worn out
Equipment so long as (i) any proceeds therefrom are paid to Trustee for the
benefit of Holders and (ii) not more than $500,000 in Equipment, based on fair
market value, is sold or disposed of without Trustee’s consent in any fiscal
year of SMF. In the event the Collateral, or any part thereof, is sold,
transferred, assigned, exchanged, or otherwise disposed of, irrespective of
whether it is approved by the Trustee, the security interest of Holders shall
continue in such Collateral or part thereof notwithstanding such sale, transfer,
assignment, exchange or other disposition, and Company will hold the proceeds
thereof in a separate account for the benefit of Holders. Following such a
sale,
Company will transfer such proceeds to Trustee, for the benefit of Holders,
in
kind, which shall effect a release of the security interest of Holders in such
Collateral, including any security interest in future additions, parts,
accessories, attachments, substitutions, repairs and improvements or
replacements to or of such Collateral.
SECTION
4.11 No
Limitation on Holders’ Rights. Other
than the Wachovia Inventory Rights, Company will not enter into any contractual
obligations which may restrict or inhibit Trustee’s or Holders’ rights or
ability to sell or otherwise dispose of the Collateral or any part thereof.
Neither Company nor Trustee will take any action to interfere with the Wachovia
Inventory Rights.
SECTION
4.12 Protection
of Collateral. Upon
three (3) Business Days’ notice to Company (except after an Event of Default),
Trustee shall have the right at any time to make any payments and do any other
acts Trustee may deem necessary to protect Holders’ security interest in the
Collateral, including, without limitation, the rights to satisfy, purchase,
contest or compromise any encumbrance, charge or lien which, in the reasonable
judgment of Trustee, appears to be prior to or superior to the security
interests granted hereunder, and appear in and defend any action or proceeding
purporting to affect its security interests in, or the value of, any of the
Collateral. Company hereby agrees to reimburse Holders for all reasonable
payments made and expenses incurred under this Security Agreement, including
fees, expenses and disbursements of attorneys and paralegals (including the
allocated costs of
in-house counsel) acting for Holders, including any of the foregoing payments
under, or acts taken to
protect its security interests in, any of the Collateral, which amounts shall
be
secured under this Security Agreement, and agrees it shall be bound by any
payment made or act taken by Trustee or Holders hereunder absent Trustee’s gross
negligence or willful misconduct. Holders shall have no obligation to make
any
of the foregoing payments or perform any of the foregoing acts.
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SECTION
4.13 Delivery
of Items.
Company
will promptly (but in no event later than three (3) Business Days) after
Company’s receipt thereof, deliver to Trustee any documents or certificates of
title issued with respect to any property included in the Collateral, and any
promissory notes, letters of credit or instruments related to or otherwise
in
connection with any property included in the Collateral, which in any such
case
come into the possession of Company, or shall cause the issuer thereof to
deliver any of the same directly to Trustee, in each case with any necessary
endorsements in favor of Trustee for the benefit of Holders.
SECTION
4.14 Fundamental
Changes. Without
the prior written consent of Trustee, Company shall not merge or consolidate
with any other Person (except for any merger or consolidation between SMF and
any of its wholly owned subsidiaries or among any of those subsidiaries) or
sell
or otherwise dispose of all or substantially all of its assets.
SECTION
5. COVENANTS
OF TRUSTEE.
Trustee
shall comply with the provisions of the Indenture, including, but not limited
to, notice provisions required therein.
SECTION
6. FINANCIAL
STATEMENTS.
Until
the
payment and satisfaction in full of all Obligations, Company shall deliver
to
Trustee and to Holders the following financial information:
SECTION
6.1 Annual Financial
Statements. As
soon
as available, but not later than one hundred twenty (120) days after the end
of
each fiscal year of SMF and its consolidated subsidiaries, the consolidated
balance sheet, income statement and statements of cash flows and shareholders
equity for SMF and its consolidated subsidiaries (the “Financial
Statements”)
for
such year, reported on by independent certified public accountants;
and
SECTION
6.2 Quarterly
Financial Statements.
As soon
as available, but not later than sixty (60) days after the end of each of the
first three (3) fiscal quarters in any fiscal year of SMF and its consolidated
subsidiaries, the Financial Statements for such fiscal quarter, together with
a
certification duly executed by a responsible officer of SMF that such Financial
Statements have been prepared in accordance with GAAP and are fairly stated
in
all material respects (subject to normal year-end audit
adjustments).
SECTION
7. EVENTS
OF DEFAULT.
The
occurrence of any of the following events shall constitute an Event of Default
hereunder:
(a) failure
of Company to
pay
any of the Obligations when payable, whether at stated maturity, by
acceleration, or otherwise;
(b) failure
of Company to perform, comply with or observe in any material respect any term,
covenant or agreement applicable to it contained in any of the Loan
Documents;
(c) any
representation or warranty made or deemed made by Company hereunder, under
or in
connection with the Financial Statements, under any other Loan Document as
defined herein or under any other agreement between Company and Holders, or
under any document, instrument or certificate executed by Company in favor
of
Holders, shall prove to have been false or incorrect in any material respect
when made;
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(d) any
material provision of any Loan Document as defined herein to which Company
is a
party shall for any reason cease to be valid and binding on Company, or Company
shall so assert in writing;
(e) dissolution,
liquidation, winding up or cessation of any of Company’s business, or the
failure of Company to pay its debts as they mature; or the admission in writing
by Company of its inability to pay its debts as they mature; or the calling
of a
meeting of Company’s creditors for purposes of compromising Company’s
debts;
(f) the
commencement by or against Company of any bankruptcy, insolvency, arrangement,
reorganization, receivership or similar proceedings under any federal or state
law and, in the case of any such involuntary proceeding, such proceeding remains
undismissed or unstayed for forty-five (45) days following the commencement
thereof, or any action by Company is taken authorizing any such
proceedings;
(g) Company
suffers or sustains a Material Adverse Change;
(h) an
assignment for the benefit of creditors is made by Company, whether voluntary
or
involuntary, or Company consents to the appointment of a trustee or receiver,
or
if a trustee or receiver is appointed for Company or for a substantial
part of its property;
(i) Company
shall (i) default in the payment of principal of or interest on any
indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which such indebtedness was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such indebtedness or contained in any
instrument or agreement relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to
cause, or to permit the holder or holders of such indebtedness to cause, with
the giving of notice if required, such indebtedness to become due prior to
its
stated maturity;
(j) any
material federal tax lien is filed of record against Company and is not bonded
or discharged within five (5) Business Days;
(k) any
material judgment shall be rendered against
Company which shall not be stayed, vacated, bonded or discharged within sixty
(60) days;
(l) any
material covenant, agreement or obligation of Company contained in or evidenced
by any of the Loan Documents shall cease to be enforceable, or shall be
determined to be unenforceable, in accordance with its terms; any of the Loan
Parties shall deny or disaffirm its obligations under any of the Loan Documents
or any liens granted in connection therewith; or any liens granted on any of
the
collateral shall be determined to be void, voidable or invalid, are subordinated
or are not given the priority contemplated by this Security Agreement;
or
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(m) this
Security Agreement shall for any reason (other than pursuant to the terms
hereof) cease to create a valid and perfected first priority lien on the
Collateral purported to be covered hereby.
SECTION
8. REMEDIES.
If
any
Event of Default shall have occurred and be continuing, then, subject only
to
the Wachovia Inventory Rights:
(a) Trustee,
on behalf of Holders, may, without prejudice to any of Trustee’s or Holders’
other rights under any Loan Document or applicable law, declare all Obligations
to be immediately due and payable (except with respect to any Event of Default
set forth in Section 7(f)
hereof,
in which case all Obligations shall automatically become immediately due and
payable without necessity of any declaration) without presentment,
representation, demand of payment or protest, which are hereby expressly
waived;
(b) Trustee,
on behalf of Holders, may, after ten (10) Business Days prior written notice
to
Wachovia (unless (i) there are no amounts then owed to Wachovia under the
Wachovia Agreement and (ii) the Wachovia Agreement has been terminated), take
possession of the Collateral and, for that purpose, may enter, with the aid
and
assistance of any person or persons, any premises where the Collateral or any
part hereof is, or may be placed, and remove the same;
(c) the
obligation of Trustee or Holders, if any, to give additional (or to continue)
financial accommodations of any kind to Company shall immediately
terminate;
(d) Trustee,
on behalf of Holders, may, after ten (10) Business Days prior written notice
to
Wachovia (unless (i) there are no amounts then owed to Wachovia under the
Wachovia Agreement and (ii) the Wachovia Agreement has been terminated),
exercise in respect of the Collateral, in addition to other rights and remedies
provided for herein (or in any Loan Document) or otherwise available to it,
all
the rights and remedies of a secured party under the UCC whether or not the
UCC
applies to the affected Collateral and also may (i) require Company to, and
Company hereby agrees that they will at Company’s expense and upon request of
Trustee or Holders forthwith, assemble all or part of the Collateral as directed
by Holders and make it available to Trustee and Holders at a place to be
designated by Holders that is reasonably convenient to both parties and
(ii) without notice except as specified below, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any of
Trustee’s offices or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as Trustee, on behalf of Holders, may deem commercially
reasonable. Trustee agrees to provide at least ten (10) days’ notice to Wachovia
and Company of the time and place of any public sale or the time after which
any
private sale is to be made pursuant to or at any time following a foreclosure
or
repossession. Trustee or Holders shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Trustee or Holders
may adjourn any public or private sale from time to time by announcement at
the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned; and
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(e) all
cash
proceeds received by Trustee or Holders in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral may, at the
discretion of Trustee or Holders, be held by Trustee or Holders as collateral
for, or then or at any time thereafter applied in whole or in part by Holders
against, all or any part of the Obligations in such order as Trustee or Holders
shall elect. Unless otherwise required by applicable law, as determined by
a
court of competent jurisdiction, any surplus of such cash or cash proceeds
held
by Trustee or Holders and remaining after the full and final payment of all
the
Obligations shall be paid over to Wachovia unless (i) there are no amounts
then
owed to Wachovia under the Wachovia Agreement and (ii) the Wachovia Agreement
has been terminated, in which case such surplus will be paid over to Company.
SECTION
9. MISCELLANEOUS
PROVISIONS.
SECTION
9.1 Notices.
Except
as
otherwise provided herein, all notices, approvals, consents, correspondence
or
other communications required or desired to be given hereunder shall be given
in
writing and shall be delivered by overnight courier, hand delivery or certified
or registered mail, postage prepaid, (i) if to Trustee, to the address noted
under Trustee’s name on the signature page attached hereto or to such other
address as shall be designated by Trustee to Company in writing, (ii) if to
Holder(s), to the address noted under each Holder’s name on the signature page
attached to the Securities Purchase Agreement or to such other address as shall
be designated by Holder to Company in writing, and (iii) if to Company, to
address of SMF noted on the first page of this Security Agreement. All such
notices and correspondence shall be effective when received.
SECTION
9.2 Headings.
The headings
in this Security Agreement are for purposes of reference only and shall not
affect the meaning or construction of any provision of this Security
Agreement.
SECTION
9.3 Assignments.
Company
shall not have the right to assign the Notes nor this Security Agreement or
any
interest therein. A Holder may assign its rights and delegate its obligations
under the Notes or this Security Agreement.
SECTION
9.4 Amendments,
Waivers and Consents. Any
amendment or waiver of any provision of this Security Agreement and any consent
to any departure by Company from any provision of this Security Agreement shall
be effective only by a writing signed by the Trustee and, in the case of any
amendment or waiver which would have, directly or indirectly, an adverse impact
on the Wachovia Inventory Rights, with the prior written consent of Wachovia,
provided,
however,
that
Trustee shall not consent to any such amendment without the prior written
consent of the holders of a majority of the principal amount of the Notes,
and
shall bind and benefit Company and Holders and their respective successors
and
assigns, subject, in the case of Company, to the first sentence of Section 9.3
hereof.
SECTION
9.5 Joinder
by Other Subsidiaries. If
a
wholly owned subsidiary of SMF that is not already a party to this
Agreement (an "Additional
Subsidiary")
has executed a written joinder agreement by which the Additional
Subsidiary agrees to be bound by all the terms and conditions of this
Agreement as if it were an original party to this Agreement,
then it
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will
be deemed for all purposes to be a party hereto and all
references
to
Company in this Agreement shall be deemed to include the Additional Subsidiary.
Upon execution and delivery of such a joinder agreement to Trustee, Company
may
transfer any portion of the Collateral to the Additional Subsidiary upon
compliance with the notice procedures for such transfers set forth in Section
4.7 hereof .
SECTION
9.6 Interpretation
of Agreement. Time
is
of the essence in each provision of this Security Agreement of which time is
an
element. To the extent a term or provision of this Security Agreement conflicts
with the Notes and is not dealt with herein with more specificity, this Security
Agreement shall control with respect to the subject matter of such term or
provision. Acceptance of or acquiescence in a course of performance rendered
under this Security Agreement shall not be relevant in determining the meaning
of this Security Agreement even though the accepting or acquiescing
party had
knowledge of the nature of the performance and opportunity for
objection.
SECTION
9.7 Continuing
Security Interest.
This
Security Agreement shall create a continuing security interest in the Collateral
and shall (i) remain in full force and effect until the indefeasible
payment in full of the Obligations, (ii) be binding upon each of SMF,
H & W and SSI and their respective successors and assigns and
(iii) inure, together with the rights and remedies of Holders hereunder, to
the benefit of Holders and its successors, transferees and assigns.
SECTION
9.8 Reinstatement.
To the
extent permitted by law, this Security Agreement and the rights and powers
granted to Trustee and Holders hereunder and under the other Loan Documents
shall continue to be effective or be reinstated if at any time any amount
received by Holders in respect of the Obligations is rescinded or must otherwise
be restored or returned by Trustee or Holders upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of either Company or upon the
appointment of any receiver, intervenor, conservator, trustee or similar
official for either Company or any substantial part of its assets, or otherwise,
all as though such payments had not been made.
SECTION
9.9 Survival
of Provisions. All
representations, warranties and covenants of Company contained herein shall
survive the execution and delivery of this Security Agreement, and shall
terminate only upon the full and final payment and performance by Company of
the
Obligations secured hereby.
SECTION
9.10 Indemnification.
Company
agrees to indemnify and hold harmless Trustee, Holders and their respective
directors, officers, agents, employees and counsel from and against any and
all
costs, expenses, claims, or liability incurred by Holders or such Person
hereunder and under any other Loan Document or in connection herewith or
therewith, unless such claim or liability shall be due to willful misconduct
or
gross negligence on the part of Holders or such Person.
SECTION
9.11 Governing
Law.
the
validity, interpretation and enforcement of this Security Agreement shall be
governed by and construed in accordance with the laws of the state of Applicable
Law, without giving effect to the conflict of law principles
thereof.
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SECTION
9.12 Venue;
Service of Process.
Any
legal action or proceeding with respect to this Security Agreement or any other
loan document may be brought in the courts of the state of Florida situated
in
Broward County, or of the United States of America for the Southern District
of
Florida and, by execution and delivery of this Security Agreement, Company
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Company
hereby irrevocably
waives, in connection with any such action or proceeding, (a) any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of forum non conveniens, that it may now or hereafter
have to the bringing of any such action or proceeding in such respective
jurisdictions and (b) the right to interpose any noncompulsory setoff,
counterclaim or cross-claim. Company
irrevocably consents to the service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to company at the address for
it
specified in Section
9.1
hereof.
Nothing herein shall affect the right of Trustee or Holders to serve process
in
any other manner permitted
by
law or
to commence legal proceedings or otherwise proceed against Company in any other
jurisdiction, subject in each instance to the provisions hereof with respect
to
rights and remedies.
SECTION
9.13 Delays;
Partial
Exercise of Remedies.
No delay
or omission of Trustee or Holders to exercise any right or remedy hereunder,
whether before or after the happening of any Event of Default, shall impair
any
such right or shall operate as a waiver thereof or as a waiver of any such
Event
of Default. No single or partial exercise by Trustee or Holders of any right
or
remedy shall preclude any other or further exercise thereof, or preclude any
other right or remedy.
SECTION
9.14 Waiver
of Jury Trial. COMPANY,
TRUSTEE AND HOLDERS IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED BY THOSE
AGREEMENTS.
SECTION
9.15 Entire
Agreement.
Company,
Trustee and Holders agree that this Security Agreement and the exhibits hereto
are the complete and exclusive statement and agreement between the parties
with
respect to the subject matter hereof, superseding all proposals and prior
agreements, oral or written, and all other communications between the parties
with respect to the subject matter hereof.
SECTION
9.16 Counterparts;
Facsimile.
This
Security Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original but all of which taken together shall
constitute one agreement. Signatures to this Security Agreement may be
transmitted by facsimile and such transmission shall be deemed to be an
original.
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Security Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the date first
set
forth above.
SMF
ENERGY CORPORATION
By:
Xxxxxxx
X. Xxxxxxxxx
Chief
Executive Officer and President
FED
ID
NO. 00-0000000
H
& W PETROLEUM COMPANY, INC.
By:
Xxxxxxx
X. Xxxxxxxxx
Chief
Executive Officer and President
FED
ID
NO. 00-0000000
SMF
SERVICES, INC.
By:
Xxxxxxx
X. Xxxxxxxxx
Chief
Executive Officer and President
FED
ID
NO. 00-0000000
AMERICAN
NATIONAL BANK
By:
Name:
Title:
By:
Name:
Title:
FED
ID
NO. __________________________
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