FIFTH AMENDMENT TO WARRANT PURCHASE AGREEMENT AND STOCK PURCHASE WARRANT
Exhibit
10.1
FIFTH
AMENDMENT TO
STOCK
PURCHASE WARRANT
This
Fifth Amendment, effective as of March 29, 2007, amends the terms of the Warrant
Purchase Agreement by and between SMF Energy Corporation, a Delaware
corporation, successor by merger to Xxxxxxxxx Mobile Fueling, Inc. (the
“Company”), and the undersigned Purchasers dated June 30, 2006 (the “Agreement”)
and of the Stock Purchase Warrants issued in connection with the Agreement
(the
“Warrants”).
WITNESSETH:
WHEREAS,
the Company and the Purchasers entered into the Agreement pursuant to which
the
Warrants were issued to the Purchasers, and the Warrants by their terms
originally expired on September 28, 2006, unless sooner exercised (the “Exercise
Period”); and
WHEREAS,
the Company and the Purchasers by an Amendment to Warrant Purchase Agreement
and
Stock Purchase Warrant dated September 28, 2006 extended the Exercise Period
for
the Warrants to November 30, 2006 and correspondingly extended the suspension
of
the Company’s obligation to make principal payments on the Notes (as that term
is defined in the Agreement); and
WHEREAS,
the Company and the Purchasers by a Second Amendment to Warrant Purchase
Agreement and Stock Purchase Warrant dated November 29, 2006 extended the
Exercise Period for the Warrants to January 15, 2007 and correspondingly
extended the suspension of the Company’s obligation to make principal payments
on the Notes; and
WHEREAS,
the Company and the Purchasers by a Third Amendment to Warrant Purchase
Agreement and Stock Purchase Warrant dated January 14, 2007 extended the
Exercise Period for the Warrants to February 14, 2007 and the Company agreed
to
pay the previously suspended payments on February 28, 2007;
WHEREAS,
the Company and the Purchasers on February 14, 2007, further extended the
Exercise Period for the Warrants to March 31, 2007, lowered
the exercise price of the Warrants to $1.52 per share
and
correspondingly deferred the Company’s next scheduled principal payment on the
August Note (as that term is defined in the Agreement) held by one of the
Purchasers to August 28, 2007,
at
which point the Company will be required to pay the scheduled principal payment
as well as the suspended principal payments; and
WHEREAS,
because payments of principal on the Notes and the February 14, 2007 reduction
of the exercise price of the Warrants have altered the original alignment of
Notes and Warrants as set forth in the Agreement, the parties now wish to amend
the Agreement to clarify that any of the principal, interest or prepayment
penalty outstanding on any of the Notes may be used by any of the Purchasers
or
their assigns as the Exercise Price of any of the Warrants and to further extend
the Exercise Period for the Warrants until June 30, 2007.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
in
the Warrants and the Agreement and hereinafter set forth, the parties hereby
alter, modify and amend the Warrants and the Agreement as follows.
1. The
Exercise Period for each of the Warrants is extended to June 30,
2007.
2. Notwithstanding
anything in the Agreement or the Warrants to the contrary, any portion of the
principal, interest or prepayment penalty outstanding on any of the Notes may
be
used as the exercise price for any of the Warrants. Accordingly, a transfer
of
Warrants from one Purchaser or its assigns to another Purchaser or its assigns
in order to be able to apply some or all of the outstanding principal, interest
or prepayment penalty of a Note to the exercise price of such Warrant shall
be
freely permitted.
3. Except
as
expressly stated in this Amendment, the terms and conditions of the Warrants
and
the Agreement shall remain in all respects unchanged.
IN
WITNESS WHEREOF, the parties hereto have caused these Amendments to be duly
executed effective as of the 14th
day of
February, 2007.
THE
COMPANY:
SMF
ENERGY CORPORATION
By:
/s/
Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx, President and CEO
PURCHASERS:
TRIAGE
CAPITAL MANAGEMENT, L.P.
By:
/s/
Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Senior
Manager
TRIAGE
CAPITAL MANAGEMENT B, L.P.
By:
/s/
Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Senior
Manager
|