Docstoc

Second Amendment To Amended And Restated Loan Agreement - SMF ENERGY CORP - 5-16-2001

Document Sample
Second Amendment To Amended And Restated Loan Agreement - SMF ENERGY CORP - 5-16-2001 Powered By Docstoc
					EXHIBIT 10.8 SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is made and entered into effective as of the 30th day of April, 2001 (this "Amendment"), by and between STREICHER MOBILE FUELING, INC., a Florida corporation ("Streicher Mobile"), STREICHER REALTY, INC., a Florida corporation ("Streicher Realty"), and STREICHER WEST, INC., a California corporation ("Streicher West", Streicher West, Streicher Mobile and Streicher Realty sometimes hereinafter collectively referred to as "Borrower"), and BANKATLANTIC, a Federal Savings Bank (hereinafter referred to as "Lender"). W I T N E S S E T H: WHEREAS, Borrower and Lender have previously entered into that certain Amended and Restated Loan Agreement dated as of the 25th day of May, 1999, as amended by First Amendment to Amended and Restated Loan Agreement dated as of the 22nd day of December, 1999 (collectively, the "Loan Agreement" or the "Agreement"); and WHEREAS, the parties hereto wish to amend the Loan Agreement in accordance with the terms and provisions of, and as provided in, this Amendment. NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the loans or extensions of credit heretofore, now or hereafter made or to be made for the benefit of the Borrower by the Lender, the parties do hereby agree as follows: 1. The Borrower and the Lender agree that the recitals set forth above are true, correct, and complete, and are hereby incorporated herein. 2. All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement. 3. Article 1, Subsection 1.2(f) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (f) "Cash Collateral Account": A cash collateral account pledged by Borrower in favor of Lender, into which all collections shall be remitted from a lockbox account into which Borrower's account debtors remit all payments, which collections shall be applied against the Loan facility balance in accordance with the terms and provisions of the Security, Cash Collateral Account and Lockbox Agreement. The Borrower shall not have access to the Lockbox or the Cash Collateral Account. 4. Article 1, Subsection 1.2(i) of the Agreement is hereby amended and restated so that,

from and after the date hereof, it shall read in its entirety as follows: (i) "Credit Facility Letter": That certain letter executed by and between Lender and Borrower dated April 23 2001, and all amendments thereto, the terms and conditions of which are hereby incorporated by reference herein, but in the event of any conflict or discrepancy between the terms of this Agreement and the Credit Facility Letter, the terms of this Agreement shall control. 5. Article 1, Subsection 1.2(x) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (x) "Loan Documents": This Agreement, the Revolving Note, the Security Agreements, the Security, Cash Collateral Account and Lockbox Agreement, the Term Note, the Subordination Agreement, the Deed of Trust and all other associated loan documents executed in connection with the making of the Loan and/or the Term Loan (and any modification, renewal or extension thereof). 6. Article 1, Subsection 1.2(y) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (y) "Maturity Date": As to the Loan, the date the Loan becomes due and payable in full in accordance with the terms and provisions of the Note. 7. Article 1, Subsection 1.2(z) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (z) "Revolving Note or "Note": That certain Amended and Restated Master Revolving Promissory Note in the principal amount of Ten Million and 00/100 Dollars ($10,000,000.00) from Borrower to Lender dated effective as of April 30, 2001, as the same may be amended, restated, supplemented or extended from time to time. 8. Article 1, Subsection 1.2(ff) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (ff) "Security Agreements": Collectively, Security Agreements dated as of December 30, 1997 executed by each Borrower in favor of Lender, each as amended and reaffirmed by Amendment to and Reaffirmation of Security Agreement dated as of May 25, 1999, as amended and reaffirmed by Second Amendment to and Reaffirmation of Security Agreement dated as of December 22, 1999, as amended and reaffirmed by Third Amendment to and Reaffirmation of Security Agreement dated as of the 19th day of April, 2001, as amended and reaffirmed by Fourth Amendment to and Reaffirmation of Security Agreement dated effective as of the 2

30th day of April, 2001, as each of the same may be amended, restated, supplemented or extended, from time to time, securing the Note, the Term Note and all other Indebtedness of Borrower to Lender, which is a valid first lien on all of the Borrower's accounts, accounts receivables, inventory, chattel paper, general intangibles, fixtures, furniture, instruments, equipment and personal property now owned or hereafter acquired by Borrower and all proceeds of the foregoing, subject only to the Permitted Encumbrances (as defined in the Security Agreements). 9. Article 1, Subsection 1.2(gg) of the Agreement is hereby deleted in its entirety. 10. Article 1, Subsection 1.2(hh) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (hh) "Security, Cash Collateral Account and Lockbox Agreement". An Amended and Restated Security, Cash Collateral Account and Lockbox Agreement, dated effective as of April 30, 2001, whereby and whereunder payment of all of Borrower's Receivables shall be directed to a lockbox maintained with Lender (the "Lockbox") to flow through the Cash Collateral Account, and, be applied against the Loan facility balance in accordance with the terms and provisions of said agreement. 11. Article 1, Subsection 1.2(jj) is hereby added to the Agreement, so that from and after the date hereof, it shall read in its entirety as follows: (jj) "Deed of Trust". That certain Deed of Trust, Assignment of Leases and Rents and Security Agreement dated as of April 19, 2001, executed by Streicher Realty in favor of Lender to be recorded in the Public Records of Tarrant County, Texas, together with UCC-1 Financing Statements associated therewith to be (i) recorded in the Public Records of Tarrant County, Texas, (ii) filed with the State of Texas and (iii) filed with the Florida Secretary of State, encumbering certain real property owned by Streicher Realty located in Tarrant County, Texas, which secures the Loan and the Term Loan to the extent of One Hundred Thousand and 00/100 Dollars ($100,000.00). 12. Article 1, Subsection 1.2(kk) is hereby added to the Agreement, so that from and after the date hereof, it shall read in its entirety as follows: (kk) "Subordination Agreement". A Subordination of Loans Agreement subordinating certain convertible subordinated loans evidenced by convertible subordinated promissory notes executed by Streicher Mobile in favor of various parties, to the lien and effect of the Loan in accordance with the terms and provisions of said Agreement. 13. Article 1, Subsection 1.2(ll) is hereby added to the Agreement, so that from and after 3

the date hereof, it shall read in its entirety as follows: (ll) "Term Note". That certain Promissory Note in the principal amount of One Hundred Thousand and 00/100 Dollars ($100,000.00) from Borrower to Lender dated as of April 19, 2001, as the same may be amended, restated, supplemented or extended from time to time; the loan evidenced thereby sometimes referred to as the "Term Loan". The Term Loan and the Loan are cross-defaulted and cross- collateralized. 14. Article 2, Subsection 2.4(c) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (c) The Security, Cash Collateral Account and Lockbox Agreement, in form and substance satisfactory to Lender and Lender's Counsel. 15. Article 2, Subsection 2.5 is hereby added to the Agreement, so that from and after the date hereof, it shall read in its entirety as follows: 2.5 Loan Fee. In connection with the Loan, the fee due and owing from Borrower shall be two percent (2%) of the amount of the Loan or the sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00). It is acknowledged that in consideration of the issuance of the Credit Facility Letter and the reserving of sufficient funds by Lender from which to make Loan disbursements, Lender is deemed to have earned the entire Loan Fee, it being hereby acknowledged and agreed to the Loan Fee is deemed EARNED and NON-REFUNDABLE. The Loan Fee shall be payable as follows: the first One Hundred Thousand and 00/100 Dollars ($100,000.00) of the Loan Fee (the "Initial Loan Fee") shall be payable in six (6) equal monthly installments in the amount of Sixteen Thousand Six Hundred Sixty- Six and 67/100 Dollars ($16,666.67) commencing on June 1, 2001, with like payments of Sixteen Thousand Six Hundred Sixty-Six and 67/100 Dollars ($16,666.67) due and payable on like day each month thereafter until the first One Hundred Thousand and 00/100 Dollars ($100,000.00) has been paid in full. The remainder of the Loan Fee in the amount of One Hundred Thousand and 00/100 Dollars ($100,000.00), together with any unpaid portion of the Initial Loan Fee shall be due and payable in full upon the earlier of maturity or prepayment of the Loan, unless the Loan is renewed by Lender (in Lender's sole and absolute discretion) past the Maturity Date in which case the remainder of the Loan Fee in the amount of One Hundred Thousand and 00/100 Dollars ($100,000.00), together with any unpaid portion of the Initial Loan Fee shall be due and payable in full upon the earlier of the new maturity date of the Loan or prepayment of the Loan, such that the entire Two Hundred Thousand and 00/100 Dollar ($200,000.00) Loan Fee must have been paid in full or must be paid in full at the earliest of such time as the Loan matures and is not renewed, the Loan becomes due as a result of acceleration, or the Loan is paid 4

and satisfied in full. 16. Article 8, Section 8.4 of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: 8.4 In accordance with the terms and provisions of the Security, Cash Collateral Account and Lockbox Agreement, Borrower shall direct all account debtors to remit all payments to the Lockbox maintained with and administered by Lender, with such collections to be deposited into the Cash, Collateral Account to be applied against the Loan facility balance in accordance with the terms and provisions of the Security, Cash Collateral Account and Lockbox Agreement. 17. Article 8, Section 8.6 of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: 8.6 Streicher Mobile shall maintain a net worth of not less than Two Million Seven Hundred Thousand and 00/100 Dollars ($2,700,000.00) from October 30, 2000 and thereafter, such requirement to be tested at the end of each quarter of each fiscal year of Streicher Mobile. The minimum net worth requirements shall be increased at the end of each quarter in each fiscal year of Streicher Mobile thereafter in an amount to be determined by Lender based upon Streicher Mobile's annual projection for the period in question. 18. Article 8, Section 8.7 of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: 8.7 Streicher Mobile shall maintain a debt-to-worth ratio of not more than 8.0 to 1 at all times during the term of the Loan, said ratio to be tested at the end of each quarter of each fiscal year of Streicher Mobile, provided that the debt-to-worth ratio may be adjusted by Lender at the end of each quarter in each fiscal year of Streicher Mobile based upon Streicher Mobile's annual projections for the period in question. 19. Article 8, Section 8.37 of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: 8.37 Borrower does hereby acknowledge that the Security, Cash Collateral Account and Lockbox Agreement is in full force and effect. 20. Article 9, Subsection 9(b) of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: (b) If there occurs any default under any other term of this Agreement, the Note, the Term Note, the Security, Cash Collateral Account and Lockbox Agreement, the 5

Deed of Trust, any of the Security Agreements or any of the other Loan Documents relating hereto or thereto subject to any applicable cure period(s) set forth therein; 21. Article 13, Section 13.14 of the Agreement is hereby amended and restated so that, from and after the date hereof, it shall read in its entirety as follows: 13.14 In the event of any conflict, inconsistency or ambiguity between the provisions of this Agreement and the provisions of the Revolving Note, the Term Note, the Deed of Trust, any of the Security Agreements, the Security, Cash Collateral Account and Lockbox Agreement, or any other Loan Documents, the provisions of this Agreement shall control and prevail. 22. The Borrower represents and warrants to the Lender that (a) each Borrower has previously furnished Lender with true and correct copies of its Articles of Incorporation and By-laws, and all amendments thereto through the date hereof, as in effect on the date hereof, and (b) the Board of Directors of each Borrower has approved this Amendment and the execution hereof by the undersigned officer of each Borrower. 23. Cross-Default/Cross-Collateralization. The Loan and the Term Loan are cross- defaulted and crosscollateralized, such that a default under the Term Loan shall be and constitute a default under the Loan and a default under the Loan shall be and constitute a default under the Term Loan, entitling Lender to exercise all remedies set forth in all Loan Documents; provided, further, that no Loan Documents shall be released until such time as both the Loan and the Term Loan are paid and satisfied in full. 24. Waiver and Release. AS A MATERIAL INDUCEMENT FOR THE LENDER TO EXECUTE THIS AMENDMENT, EACH BORROWER DOES HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO SUE, ACQUIT, SATISFY AND FOREVER DISCHARGE THE LENDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS AND ITS AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS, COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES, AGREEMENTS, PROMISES AND DEMAND WHATSOEVER IN LAW OR IN EQUITY WHICH EACH BORROWER EVER HAD, NOW HAS, OR WHICH ANY PERSONAL REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN OF EACH BORROWER HEREAFTER CAN, SHALL OR MAY HAVE AGAINST THE LENDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, AND ITS AFFILIATES AND ASSIGNS, FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER, THROUGH THE DATE HEREOF. EACH BORROWER FURTHER EXPRESSLY COVENANTS WITH AND WARRANTS UNTO THE LENDER AND ITS AFFILIATES AND ASSIGNS, THAT THERE EXIST NO CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSET AGAINST THE LENDER OR THE OBLIGATION OF EACH BORROWER TO PAY THE LENDER ALL AMOUNTS OWING UNDER THE NOTE, THE TERM NOTE, THE LOAN AGREEMENT AND ALL ASSOCIATED 6

LOAN DOCUMENTS AS AND WHEN THE SAME BECOME DUE AND PAYABLE. NOTWITHSTANDING THE ABOVE, THE PARTIES DO HEREBY ACKNOWLEDGE THAT ANY DEPOSIT ACCOUNT(S) OF BORROWER MAINTAINED WITH LENDER ARE SUBJECT TO THE TERMS AND PROVISIONS OF ANY AGREEMENT(S) RELATED TO THOSE ACCOUNT(S), PROVIDED HOWEVER, THAT BORROWER IS UNAWARE OF ANY CLAIMS CONCERNING THOSE ACCOUNT(S) AT THIS TIME. 25. Reaffirmation by Borrower. THE BORROWER ACKNOWLEDGES AND REAFFIRMS THAT ALL WARRANTIES, REPRESENTATIONS, AFFIRMATIVE COVENANTS AND NEGATIVE COVENANTS SET FORTH IN THE LOAN AGREEMENT REMAIN IN FULL FORCE AND EFFECT ON THE DATE HEREOF AS IF MADE ON THE DATE HEREOF. 26. Amended Agreement. THIS AGREEMENT AMENDS THE LOAN AGREEMENT, AND THE BORROWER ACKNOWLEDGES AND AGREES THAT THE SECURITY INTERESTS, RIGHTS, DUTIES, AND OBLIGATIONS OF THE BORROWER AND THE LENDER CREATED BY THE LOAN AGREEMENT ARE NOT EXTINGUISHED, BUT ARE REAFFIRMED AND REMAIN IN FULL FORCE AND EFFECT AS PROVIDED IN THE LOAN AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS AND PROVISIONS OF THE LOAN AGREEMENT AND THE TERMS AND PROVISIONS OF THIS AMENDMENT, THE TERMS AND PROVISIONS OF THIS AMENDMENT SHALL CONTROL AND PREVAIL. INTENTIONALLY LEFT BLANK 7

Waiver of Jury Trial. THE PARTIES DO HEREBY MUTUALLY, VOLUNTARILY, INTENTIONALLY, KNOWINGLY AND WILLINGLY WAIVE THEIR RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS MADE AMONG THEM, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL CLAIMS, DEFENSES, COUNTERCLAIMS, CROSS-CLAIMS, THIRD PARTY CLAIMS AND INTERVENOR'S CLAIMS, WHETHER ARISING FROM OR RELATED TO THE NEGOTIATION, EXECUTION AND PERFORMANCE OF THE TRANSACTIONS TO WHICH THE LOAN AGREEMENT AS AMENDED BY THIS AMENDMENT AND THE LOAN DOCUMENTS, RELATE. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed effective as of the date first above written.
Signed, sealed and delivered in the presence of: BORROWER: STREICHER MOBILE FUELING, INC., a Florida corporation _________________________ _________________________ By: /s/ WALTER B. BARRETT -------------------------------------------WALTER B. BARRETT, Vice President of Finance (Corporate Seal)

STREICHER REALTY, INC., a Florida corporation

_________________________ _________________________

By: /s/ WALTER B. BARRETT -------------------------------------------WALTER B. BARRETT, Vice President of Finance (Corporate Seal)

STREICHER WEST, INC., a California corporation

_________________________ _________________________

By: /s/ WALTER B. BARRETT -------------------------------------------WALTER B. BARRETT, Vice President of Finance (Corporate Seal)

8

LENDER: BANKATLANTIC, a Federal Savings Bank

_________________________

By: /s/ Jeffrey S. Bilus ----------------------------------------Jeffrey S. Bilus, Vice President

STATE OF GEORGIA COUNTY OF ________________ THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a Notary Public in and for the State of Georgia, this ___ day of __________, 2001, by WALTER B. BARRETT, as Vice President of Finance of and on behalf of each of STREICHER MOBILE FUELING, INC., a Florida corporation, STREICHER REALTY, INC., a Florida corporation, and STREICHER WEST, INC., a California corporation, who |_| is personally known to me or |_| produced his driver's license as identification. Notary Public - State and County Aforesaid Print Name: _______________________________ My Commission Expires: ____________________ Commission Number: ________________________ STATE OF GEORGIA COUNTY OF ________________ THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a Notary Public in and for the State of Georgia, this ___ day of __________, 2001, by JEFFREY S. BILUS, as Vice President of and on behalf of BANKATLANTIC, a Federal Savings Bank, who |_| is personally known to me or |_| produced his driver's license as identification. Notary Public - State and County Aforesaid Print Name: _______________________________ My Commission Expires: ____________________ Commission Number: ________________________ 9

EXHIBIT 10.9 $200,000 Fort Lauderdale, Florida July 7, 2000 PROMISSORY NOTE For value received, the undersigned Streicher Mobile Fueling, Inc., a Florida corporation ("Maker"), promises to pay in lawful money of the United States of America to the order of C. Rodney O'Connor ("Holder"), the principal sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00), together with interest thereon from the date hereof at the rate of two percent (2%) over the Prime Rate, as announced from time to time by Bank Atlantic, Ft. Lauderdale, Florida, per annum on the unpaid balance. Principal and interest shall be due in a single payment one year from the date of this Promissory Note, except that Holder may demand payment at any time. All payments shall be made to holder at 640 Fifth Avenue, 15th Floor, New York, NY 10019, or at such further address as Holder may notify Maker. Maker may prepay all or any portion of the obligation evidenced hereby at any time without premium or penalty. Maker expressly waives presentment, protest, demand, notice of dishonor or default, and notice of every other kind and type with respect to this Promissory Note and default hereunder. Holder's failure to accelerate or take any other permitted action under this Promissory Note shall not operate as a waiver of Holder's rights thereunder. This Promissory Note shall be construed under the laws of the State of Florida, and venue for any action hereunder shall lie in the County in Broward County, Florida. Maker agrees to pay the costs of collection, including a reasonable attorney's fee. STREICHER MOBILE FUELING, INC. a Florida corporation
By: /s/ Walter B. Barrett ------------------------------------------Walter B. Barrett, Vice President, Finance

EXHIBIT 10.10 THIS NOTE AND THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON THE PAYEE FIRST HAVING OBTAINED A WRITTEN OPINION OF MAKER'S COUNSEL, OR OTHER COUNSEL ACCEPTABLE TO MAKER, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE "BLUE SKY" OR OTHER SIMILAR SECURITIES LAW. CONVERTIBLE SUBORDINATED PROMISSORY NOTE April 19, 2001 FOR VALUE RECEIVED, STREICHER MOBILE FUELING, INC., a Florida corporation ("Maker"), promises to pay to the order of __________________ or his/her assigns ("Payee"), at such place as the Payee may designate in writing, in lawful money of the United States of America, the principal sum of ______________________ _______________________. 1. Principal Payments. The outstanding principal of this Note shall be due and payable on August 31, 2003. The outstanding principal balance of this Note may be prepaid prior to maturity as provided in Section 8. 2. Interest. The outstanding principal balance of this Note shall accrue interest at the Prime Rate (as hereinafter defined), plus one percent (1%); provided, that following an Event of Default, the outstanding principal balance of this Note shall bear interest as provided in Section 9. Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months and shall be payable in arrears on the last business day of each calendar quarter after the date hereof, until the outstanding principal balance of this Note is paid in full. For purposes of this Note, the term "Prime Rate" shall mean the rate of interest announced from time to time by Bank Atlantic as its "prime rate", which rate shall change as and when such announced rate changes. 3. Interest Method of Payment; Application. All payments of principal (including any prepayments) shall be made on the due date thereof by wire transfer of immediately available funds to such bank account as Payee may from time to time designate in writing. All cash payments of interest shall be made on the due date thereof by check drawn on a United States bank. Payments (including all

prepayments) received by Payee on this Note shall be applied first to the payment of accrued and unpaid interest and only thereafter to the outstanding principal balance of this Note. 4. Interest Payments in Kind (PIK). (a) Payments. Maker shall have the right to make quarterly payments of interest, as provided in Section 2, in Shares of Maker's common stock, $0.01 par value, ("PIK Shares"). Maker shall not issue any fractional shares in satisfying the interest payment obligation and the number of PIK Shares issued to Payee shall be rounded to the nearest whole number. If Maker elects to issue PIK Shares in lieu of a cash payment of interest, the entire interest payment for the quarter shall be in PIK Shares. (b) Computation of PIK Shares Issued. The number of PIK Shares issued shall be determined by dividing the amount of the quarterly interest payment as provided in Section 2 by the average of the daily closing price of the Maker's common stock as quoted on the NASDAQ system for the trading days included in the calendar quarter for which the interest is payable. (c) The PIK Shares shall be delivered to Payee in the same manner as provided in Section 6(c) for delivery of Shares in connection with a conversion. 5. Subordination. Payee acknowledges that the payment of principal and interest on this Note are expressly subordinated to (i) the rights and interests of BankAtlantic to the extent of the existing and future amounts owed by Maker to BankAtlantic under the line of credit facility between BankAtlantic and Maker or to any replacement line of credit facility into which the Maker may subsequently enter requiring that the lender rank in a senior position to unsecured debt of the Maker and (ii) the rights and interests of commercial lenders financing the Maker's truck fleet and having security interests in those assets. Upon request, Payee agrees to execute and deliver such documents and instruments as BankAtlantic or any commercial lender may reasonably request to acknowledge and effect the foregoing subordination. 6. Conversion. (a) Conversion. Payee shall have the right to convert the outstanding principal balance of and accrued interest on this Note, or such lesser portion thereof as Payee may elect, into Shares of Maker's common stock, $0.01 par value ("Shares") at any time and at Payee's sole option. 2

(b) Conversion Price; No Fractional Shares. Upon any conversion of this Note, the sum of the principal balance and accrued interest, unless such accrued interest is paid in cash by Maker, to be converted shall be converted into Shares at a conversion price of $1.35 per share. Maker shall not issue any fractional shares upon conversion, and the number of Shares issued to Payee shall be rounded to the nearest whole number. (c) Mechanics of Conversion. Upon any conversion of this Note, Payee shall deliver to Maker at the Maker's principal office this Note (or of any replacement Note) together with a written notice of election to convert. Conversion shall be deemed to have been effected on the date when such delivery of the conversion notice is actually made. As promptly as practicable thereafter, Maker shall issue and deliver to or upon the written order of Payee a certificate or certificates for the number of Shares to which the Payee is entitled. Upon conversion of only a portion of this Note, Maker shall issue and deliver to, or upon the written order of Payee, a new Note in the principal amount of this Note not converted, which new Note shall entitle the holder to interest on the principal amount to the same extent as if the unconverted portion of this Note had not been surrendered for conversion. Maker covenants that all Shares, which may be issued upon conversion, will, upon issuance, be fully paid and nonassessable and free from all taxes, liens and charges caused or created by Maker with respect to the issuance. (d) Registration of Shares. Maker intends to file a Form S-3 Registration Statement on or before May 15, 2001 which will include the registration of Shares sufficient to enable Maker to issue to Payee registered shares to satisfy the conversion requirement provided under Section 6 and the payment of all interest using PIK Shares provided under Section 4. 7. Anti-Dilution. In the event that the Maker at any time after this Note is issued (i) issues Shares for cash or other property at a price less than $1.35 per share; (ii) declares a dividend on the outstanding common stock payable in Shares; (iii) subdivides the outstanding common stock; (iv) combines the outstanding common stock into a smaller number of Shares; or (v) issues any Shares by reclassification of the common stock (including any such reclassification in connection with a consolidation or merger in which the Maker is the surviving entity), then, in any such event, the conversion price and the number of Shares issuable upon conversion of this Note, as provided in Section 6, in effect at (a) the time of the issuance of such Shares for less than $1.35 per share; (b) the record date for such dividend; or (c) the effective date of such subdivision, combination or reclassification, shall be proportionately adjusted so as to prevent the dilution of conversion rights that Payee shall have been entitled to prior to such issuance of 3

shares, dividend, subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above shall occur. 8. Prepayment. (a) Right to Prepay. Maker shall have the right to prepay in cash a portion or all of the principal and accrued interest on this Note provided that written notice is given to Payee at least 30 days in advance of the scheduled prepayment date. Maker's right to prepay is expressly conditioned on and shall not become effective until the common stock of the Maker, as quoted on the NASDAQ system, closes at a quoted price of at least $2.50 per share unless Payee waives such condition by written notification to Maker. (b) Prepayment Penalty. A prepayment penalty shall be paid in cash by Maker to Payee, at the time of prepayment of principal and accrued interest, as follows:
Prepayment Date --------------On or before April 30, 2002 After May 1, 2002 and before April 30, 2003 On or after May 1, 2003 Amount of Penalty ----------------10% of principal amount prepaid 5% of principal amount prepaid None

9. Events of Default. This entire principal balance of this Note shall, at the option of Payee, immediately be due and payable upon the occurrence of one or more of the following events (each, an "Event of Default"): (i) Maker shall default in the payment of the principal of or interest on this Note when the same shall become due and payable, whether by acceleration or otherwise; (ii) Maker shall default in the payment of principal of or any installment of interest on any other indebtedness for borrowed money or with respect to any of covenants or agreements contained in any evidence of indebtedness for borrowed money or agreement relating thereto; (iii) Maker shall apply for, or consent to, the appointment of a receiver, trustee or liquidator of Maker or of its property, admit in writing its inability to pay its debts as they mature, or make a general assignment for the benefit of creditors; or (v) Maker shall file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization, or an arrangement with creditors, or a court order approving a petition filed against Maker under the Federal bankruptcy laws shall be entered against Maker, which order shall not have been vacated or set aside within 30 days. Upon the occurrence of any one or more Events of Default (i) Payee, at its option and without further notice, demand or presentment for 4

payment to Maker or others, may declare immediately due and payable the entire unpaid principal amount hereof; (ii) thereafter interest shall accrue on the outstanding principal balance at the highest rate permissible under Florida law, from the date of such Event of Default until the date the unpaid principal balance hereof is paid in full; and (iii) Maker shall pay all costs, fees and expenses, including, without limitation, reasonable trial and appellate attorneys' fees and expenses, paid or incurred by Payee in connection with collection of this Note, whether paid or incurred in connection with collection by suit or otherwise. The waiver by Payee of Maker's prompt and complete performance of, or default under, any provision of this Note shall not operate nor be construed as a waiver of any subsequent breach or default, and the failure by Payee to exercise any right or remedy which it may possess hereunder shall not operate nor be construed as a bar to the exercise of any such right or remedy upon the occurrence of any subsequent breach or default. No remedy conferred hereby shall be exclusive of any other remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. 10. Representations of Payee. By acceptance of this Note, Payee represents and warrants to Maker that (i) Payee is an "accredited investor" as defined in Rule 501(a) under the Securities Act of 1933, as amended; is sophisticated in financial matters; is able to evaluate the risks and benefits of the investment in this Note and the Shares; and is able to make an informed investment decision; (ii) Payee is acquiring this Note and any Shares for Payee's own account for investment purposes, and Payee has no intention of selling this Note or any such Shares in a public distribution in violation of the federal securities laws or any applicable state securities laws; (iii) in acquiring this Note and any Shares, Payee is not relying upon any information other than the results of Payee's own independent investigation, and the following documents (the receipt of which are hereby acknowledged by Payee): (A) Maker's Annual Report on Form 10-K for its most recent fiscal year and Quarterly Reports on Form 10-Q filed since the end of its most recent fiscal year; (B) Maker's Proxy Statement for its most recent Annual Meeting of Shareholders and its Proxy Statement for the Special Meeting of Shareholders held on February 28, 2001; and (C) any current reports on Form 8-K filed by Maker since the end of its most recent fiscal year. 11. Miscellaneous. This Note shall be construed in accordance with and be governed by the internal laws of the State of Florida. Maker hereby: (i) waives demand, presentment, protest, notice of dishonor, suit against or joinder of any other person, and all other requirements necessary to charge or hold Maker liable with respect to this Note; (ii) waives any right to immunity from any such action or proceeding and waives any immunity or exemption of any property, wherever located, from garnishment, levy, execution, seizure or attachment prior to or in execution of judgment, or sale under execution or other process for the collection of debts; (iii) waives any right to interpose any set-off or non-compulsory counterclaim or to plead laches or 5

any statute of limitations as a defense in any such action or proceeding. Notwithstanding anything to the contrary contained herein, the interest rate payable hereon shall not exceed the maximum rate of interest permissible under applicable law. To the extent any payment to Payee, or any part thereof, is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to Maker or its successors or assigns under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the obligations, or part thereof, under this Note that have been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial payment, reduction or satisfaction. Maker agrees to pay any documentary stamp required with respect to the execution, delivery, performance or enforcement of this Note. Maker's obligations hereunder shall be absolute and unconditional and shall not be affected by any circumstance, happening or event whatsoever, including any setoff, counterclaim, recoupment, defense or other right that Maker may have against Payee or any other person for any reason whatsoever, whether arising out of or as a result of any contract, agreement or transaction between Maker and Payee, or otherwise. This Note may not be modified, amended or terminated, except in a writing executed by Maker and Payee. Time is of the essence with respect to Maker's obligations and agreements under this Note. STREICHER MOBILE FUELING, INC.
By: /s/ Richard E. Gathright -------------------------------------Richard E. Gathright Chief Executive Officer and President

Accepted and Agreed: 6

EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS The Board of Directors and Stockholders Streicher Mobile Fueling, Inc. We consent to the incorporation by reference in the registration statement on Forms S-8 (Nos. 333-84275 and 333-79801) and S-3 (Nos. 333-30950, 333-30952 and 333-84273) of Streicher Mobile Fueling, Inc., of our report dated April 30, 2001, relating to the consolidated balance sheets of Streicher Mobile Fueling, Inc. and subsidiaries as of January 31, 2001 and 2000, and the related consolidated statements of operations, shareholders' equity and cash flows for each of the years in the three-year period ended January 31, 2001, and the related schedule, which report appears in the January 31, 2001 Annual Report on Form 10-K of Streicher Mobile Fueling, Inc.
/s/ KPMG LLP Fort Lauderdale, Florida

May 15, 2001