EXHIBIT 3.1 RESTATED ARTICLES OF INCORPORATION OF STREICHER MOBILE FUELING, INC. Pursuant to the provisions of Section 607.1007 of the Florida Business Corporation Act (the "Act"), the undersigned corporation adopts the following Restated Articles of Incorporation as adopted by the Board of Directors of Streicher Mobile Fueling, Inc. on September 17, 2003 without shareholder action as shareholder action was not required. I The name of the corporation is Streicher Mobile Fueling, Inc. (hereinafter called the "Corporation"). The address of the principal office and the mailing address of the Corporation is 800 West Cypress Creek Road, Suite 580, Fort Lauderdale, Florida 33309. II The purpose for which the Corporation is organized is to engage in the transaction of any lawful business for which corporations may be incorporated under the laws of the State of Florida. III The aggregate number of shares of all classes of capital stock which this Corporation shall have authority to issue is 51,000,000 shares consisting of (i) 50,000,000 shares of common stock, $0.01 par value ("Common Stock") and (ii) 1,000,000 shares of preferred stock, par value $0.01 per share (the "Preferred Stock"). The designations and the preferences, limitations and relative rights of the Common Stock and the Preferred Stock of the Corporation are as follows: A. PROVISIONS RELATING TO THE COMMON STOCK. 1. VOTING PRIVILEGES. Except as otherwise required by law or as may be provided by the resolutions of the Board authorizing the issuance of any class or series of Preferred Stock, all rights to vote and all voting power shall be vested exclusively in the holders of the Common Stock. Each holder of Common Stock shall have one vote on all matters submitted to the shareholders for each share of Common Stock standing in the name of such holder on the books of this Corporation. Except as otherwise required by law, the shares of Common Stock of this Corporation shall vote as a single class on all matters submitted to the holders of such Common Stock. 2. DIVIDENDS. Subject to the rights of the holders of the Preferred Stock, the holders of Common Stock shall be entitled to share in dividends ratably with all other holders of Common Stock then outstanding, regardless of class, when, if and as such dividends are declared paid; provided, however, that if dividends are declared which are payable in Common Stock (or options or warrants for or securities convertible into Common Stock or other rights to subscribe for or to purchase Common Stock), the dividends payable to holders of Common Stock will be paid in shares of Common Stock (or options or warrants for or securities convertible into shares of Common Stock or other rights to subscribe for or to purchase shares of Common Stock, as the case may be). 3. LIQUIDATION RIGHTS. After payment or provision for payment of the debts and other liabilities of this Corporation and after the holders of Preferred Stock shall have been paid in full the amounts to which they shall be entitled (if any) or a sum sufficient for such payment in full shall have been set aside, upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of this Corporation, the holders of Common Stock then outstanding shall be entitled to receive all of the assets and funds of this Corporation remaining and available for distribution. Such assets and funds shall be divided among and paid to the holders of Common Stock on a pro-rata basis, according to the number of shares of Common Stock held by them. B. PROVISIONS RELATING TO THE PREFERRED STOCK. 1. The Preferred Stock may be issued from time to time in one or more classes or series, the shares of each class or series to have such designations and powers, preferences and rights, and qualifications, limitations and restrictions thereof as are stated and expressed herein and in the resolution or resolutions providing for the issue of such class or series adopted by the Board of Directors (the "Board") as hereinafter prescribed. 2. Authority is hereby expressly granted to and vested in the Board to authorize the issuance of the Preferred Stock from time to time in one or more classes or series, to determine and take necessary proceedings fully to effect the issuance and redemption of any such Preferred Stock, and, with respect to each class or series of the Preferred Stock, to fix and state by the resolution or resolutions from time to time adopted providing for the issuance thereof the following: (a) whether or not the class or series is to have voting rights, full or limited, or is to be without voting rights; (b) the number of shares to constitute the class or series and the designations thereof; (c) the preferences and relative, participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to any class or series; (d) whether or not the shares of any class or series shall be redeemable and if redeemable the redemption price or prices, and the time or times at which and the terms and conditions upon which such shares shall be redeemable and the manner of redemption; (e) whether or not the shares of a class or series shall be subject to the operation of retirement or sinking funds to be applied to the purchase or redemption of such shares for retirement, and if such retirement or sinking fund or funds be established, the annual amount thereof and the terms and provisions relative to the operation thereof; (f) the dividend rate, whether dividends are payable in cash, stock of the Corporation, or other property, the conditions upon which and the times when such dividends are payable, the preference to or the relation to the payment of the dividends payable on any other class or classes or series of stock, whether or not such dividend shall be cumulative or noncumulative, and if cumulative, the date or dates from which such dividends shall accumulate; (g) the preferences, if any, and the amounts thereof which the holders of any class or series thereof shall be entitled to receive upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation; (h) whether or not the shares of any class or series shall be convertible into, or exchangeable for, the shares of any other class or classes or of any other series of the same or any other class or classes of stock of the Corporation and the conversion price or prices or ratio or ratios or the rate or rates at which such conversion or exchange may be made, with such adjustments, if any, as shall be stated or expressed or provided for in such resolution or resolutions; and (i) such other special rights and protective provisions with respect to any class or series as the Board may deem advisable. The shares of each class or series of the Preferred Stock may vary from the shares of any other series thereof in any or all of the foregoing respects. The Board may increase the number of shares of the Preferred Stock designated for any existing class or series by a resolution adding to such class or series authorized and unissued shares of the Preferred Stock not designated for any other class or series. The Board may decrease the number of shares of the Preferred Stock designated for any existing class or series by a resolution, subtracting from such series unissued shares of the Preferred Stock designated for such class or series, and the shares so subtracted shall become authorized, unissued and undesignated shares of the Preferred Stock. C. GENERAL PROVISIONS. 1. Except as may be provided by the resolutions of the Board authorizing the issuance of any class or series of Preferred Stock, as hereinabove provided, cumulative voting by any shareholder is hereby expressly denied. 2. No shareholder of the Corporation shall have, by reason of its holding shares of any class or series of stock of the Corporation, any preemptive or preferential rights to purchase or subscribe for any other shares of any class or series of the Corporation now or hereafter to be authorized, and any other equity securities, or any notes, debentures, warrants, bonds, or other securities convertible into or carrying options or warrants to purchase shares of any class, now or hereafter to be authorized, whether or not the issuance of any such shares, or such notes, debentures, bonds or other securities, would adversely affect the dividend, voting or other rights of such shareholder. IV The Corporation shall exist perpetually unless sooner dissolved according to law. V A. NUMBER AND TERM OF DIRECTORS. The Corporation's Board shall consist of not less than one or more than seven members, with the exact number to be fixed from time to time by resolution of the Board. No decrease in the number of directors shall have the effect of shortening the term of any incumbent director. Each director shall be elected at the annual meeting for a term of one year and shall serve until his or her successor is duly elected and qualified or until his or her earlier resignation, death or removal from office. B. DIRECTOR VACANCIES; REMOVAL. Whenever any vacancy on the Board shall occur due to death, resignation, retirement, disqualification, removal, increase in the number of directors, or otherwise, only a majority of directors in office, although less than a quorum of the entire Board, may fill the vacancy or vacancies for the balance of the unexpired term or terms, at which time a successor or successors shall be duly elected by the shareholders and qualified. Shareholders shall not, and shall have no power to, fill any vacancy on the Board. Shareholders may remove a director from office prior to the expiration of his or her term only for "cause" by an affirmative vote of a majority of all votes entitled to be cast for the election of directors. C. SHAREHOLDER NOMINATIONS OF DIRECTOR CANDIDATES. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation. Nominations of persons for election to the Board at an annual or special meeting of shareholders may be made by or at the direction of the Board by any nominating committee or person appointed by the Board or by any shareholder of the Corporation entitled to vote for the election of directors at the meeting who complies with the procedures set forth in this paragraph C; provided, however, that nominations of persons for election to the Board at a special meeting may be made only if the election of directors is one of the purposes described in the special meeting notice required by Section 607.0705 of the Florida Business Corporation Act. Nominations of persons for election at annual meetings, other than nominations made by or at the direction of the Board, shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation not less than One Hundred Twenty (120) days nor more than One Hundred Eighty (180) days prior to the first anniversary of the date of the Company's notice of annual meeting provided with respect to the previous year's annual meeting; provided, however, that if no annual meeting was held in the previous year or the date of the annual meeting has been changed to be more than 30 calendar days earlier than the date contemplated by the previous year's proxy statement, such notice by the shareholder to be timely must be so received not later than the close of business on the tenth (10th) day following the date on which notice of the date of the annual meeting is given to shareholders or made public, whichever first occurs. Such shareholder's notice to the Secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or re-election as a director at the annual meeting, (i) the name, age, business address and residence address of the proposed nominee, (ii) the principal occupation or employment of the proposed nominee, (iii) the class and number of shares of capital stock of the Corporation which are beneficially owned by the proposed nominee, and (iv) any other information relating to the proposed nominee that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice of nominees for election at the annual meeting, (i) the name and record address of the shareholder, and (ii) the class and number of shares of capital stock of the Corporation which are beneficially owned by the shareholder. The Corporation may require any proposed nominee for election at an annual or special meeting of shareholders to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation. No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth herein. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the requirements of this paragraph C, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. D. AMENDMENTS. Notwithstanding anything contained in these Restated Articles of Incorporation to the contrary, this Article V shall not be altered, amended or repealed except by an affirmative vote of at least twothirds of the outstanding shares of all capital stock entitled to vote for the election of directors. VI The Corporation shall indemnify and may advance expenses to its officers and directors to the fullest extent permitted by law in existence either now or hereafter. VII The street address of the Corporation's registered office in the State of Florida is 1200 South Pine Island Street, Plantation, Florida 33324, and the name of its registered agent at such office is CT Corporation System. VIII A. ACTION BY SHAREHOLDERS WITHOUT MEETING. Any action required or permitted to be taken by the shareholders of the Corporation must be effected at a duly called annual or special meeting of shareholders of the Corporation and may not be effected by any consent in writing by such shareholders. B. CALL OF SPECIAL SHAREHOLDERS MEETING. Except as otherwise required by law, the Corporation shall not be required to hold a special meeting of shareholders of the Corporation unless (in addition to any other requirements of law) (i) the holders of not less than fifty (50) percent of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the Corporation's secretary one or more written demands for the meeting describing the purpose or purposes for which it is to be held; or (ii) the meeting is called by the Board pursuant to a resolution approved by a majority of the entire Board; or (iii) the meeting is called by the Chairman of the Board of Directors. Only business within the purpose or purposes described in the special meeting notice required by Section 607.0705 of the Florida Business Corporation Act may be conducted at a special shareholders' meeting. C. ADVANCE NOTICE OF SHAREHOLDER-PROPOSED BUSINESS FOR ANNUAL MEETING. At an annual meeting of the shareholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board, (b) otherwise properly brought before the meeting by or at the direction of the Board, or (c) otherwise properly brought before the meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than Sixty (60) days nor more than Ninety (90) days prior to the meeting, provided, however, that in the event that less than Eighty (80) days' notice or prior public disclosure of the date of the meeting is given or made to shareholders, notice by the shareholder, to be timely, must be received no later than the close of business on the tenth (10th) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made, whichever first. Such shareholder's notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of capital stock of the Corporation which are beneficially owned by the shareholder, and (iv) any material interest of the shareholder in such business. The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the requirements of this paragraph B, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. D. AMENDMENTS. Notwithstanding anything contained in these Restated Articles of Incorporation to the contrary, this Article VIII shall not be altered, amended or repealed except by an affirmative vote of at least twothirds of the outstanding shares of all capital stock entitled to vote for the election of directors. IN WITNESS WHEREOF, the undersigned has executed these Restated Articles of Incorporation this 17th day of September, 2003. STREICHER MOBILE FUELING, INC. By:/S/RICHARD E. GATHRIGHT --------------------------------------Richard E. Gathright, President EXHIBIT 10.13 FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT EFFECTIVE MARCH 31, 2003 THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT IS MADE AND ENTERED INTO EFFECTIVE AS OF THE 31ST DAY OF MARCH 2003 (THE "AMENDMENT") BY AND BETWEEN CONGRESS FINANCIAL CORPORATION (FLORIDA), A FLORIDA CORPORATION ("LENDER"), STREICHER MOBILE FUELING, INC., A FLORIDA CORPORATION, ("BORROWER"). WITNESSETH: Whereas, Borrower and Lender have previously entered into that certain Loan and Security Agreement dated September 26, 2002 (the "Loan Agreement"), the capitalized terms used herein having the meanings set forth in the Loan Agreement, unless otherwise specifically defined herein, and Section and Subsection references herein used being references to Sections and Subsections of the Loan Agreement; Whereas, Streicher Realty, Inc., a Florida corporation ("Guarantor"), executed that certain Guarantee in favor of Lender dated September 26, 2002, under which Guarantor did make certain guarantees for the benefit of Borrower, including, without limitation, the obligations under the Loan 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, in consideration of the mutual considerations and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: The Loan Agreement is amended by: (1) adding the following defined terms and definitions to Section 1, effective as of March 31, 2003: 1.66 "Effective Book Net Worth" shall mean as to any Person, at any time, on a consolidated basis for such Person and its subsidiaries (if any), the aggregate amount equal to its Book Net Worth plus Subordinated Debt. 1.67 "Subordinated Debt" shall mean as to any Person, at any time, the Indebtedness of such Person and its subsidiaries which is subordinated in right of payment to the full and final payment of all of the Obligations on terms and conditions acceptable to Lender. and (2) substituting the term "Effective Book Net Worth" in lieu of the term "Book Net Worth" wherever the latter term appears in Section 9.17; Except as expressly set forth above, (a) the execution and delivery of this Amendment shall in no way constitute a modification to or a waiver of any provision of the Loan Agreement or any of the other Financing Agreements, and (b) the Loan Agreement, the other Financing Agreements, and all other documents, instruments, and agreements executed and/or delivered pursuant thereto and in connection therewith shall remain in full force and effect and are hereby ratified and confirmed. Lender is not under any obligation to further amend or modify any terms of the Financing Agreements. No consent to future departure(s) from said terms, whether or not similar to that referenced herein, may be implied from the terms hereof. This Amendment shall become effective after it has been fully executed and returned to us, and may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which, when so executed, shall be deemed to be an original and shall be binding upon all parties, their successors and assigns, and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. IN WITNESS WHEREOF, this Amendment has been duly executed and delivered effective as of the day and year first above written. LENDER: CONGRESS FINANCIAL CORPORATION (FLORIDA), a Florida corporation By: /S/PAT CLONINGER -------------------------------------------Name: Pat Cloninger Title: Vice President 2 ADDITIONAL SIGNATURES TO FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT: BORROWER: STREICHER MOBILE FUELING, INC., a Florida corporation By: /S/RICHARD E. GATHRIGHT -------------------------------------------Name: Richard E. Gathright Title: President and Chief Executive Officer JOINDER OF GUARANTOR The undersigned (1) consents and agrees to the terms and provisions of the Amendment which are applicable to it and agrees to be bound by and comply with such terms and provisions, and (2) acknowledges that the Guarantee is valid and binding and remains in full force and effect (without defense, setoff or counter claim). GUARANTOR: STREICHER REALTY, INC., a Florida corporation By: /S/RICHARD E. GATHRIGHT -------------------------------------------Name: Richard E. Gathright Title: President and Chief Executive Officer 3 EXHIBIT 10.14 INDENTURE STREICHER MOBILE FUELING, INC. AND THE BANK OF CHERRY CREEK, A BRANCH OF WESTERN NATIONAL BANK Dated as of August 29, 2003 $7,500,000 10% Senior Secured Notes due August 28, 2008 TABLE OF CONTENTS PAGE ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTION..............................1 Section 1.01 Definitions..............................................1 Section 1.02 Other Definitions........................................4 Section 1.03 Rules of Construction....................................4 ARTICLE 2 THE Section Section Section Section Section Section Section Section Section SECURITIES.....................................................4 2.01 Form and Dating..........................................4 2.02 Execution................................................4 2.03 Agents...................................................5 2.04 Paying Agent To Hold Money in Trust......................5 2.05 Holder Lists.............................................5 2.06 Transfer and Exchange....................................5 2.07 Outstanding Notes........................................6 2.08 Treasury Notes Disregarded for Certain Purposes..........6 2.09 Cancellation.............................................6 ARTICLE 3 REDEMPTION.........................................................6 Section 3.01 Notice to Trustee........................................6 Section 3.02 Selection of Notes to be Redeemed........................7 Section 3.03 Notice of Redemption.....................................7 Section 3.04 Effect of Notice of Redemption...........................7 Section 3.05 Deposit of Redemption Price..............................7 Section 3.06 Securities Redeemed in Part..............................7 ARTICLE 4 COVENANTS..........................................................8 Section 4.01 Payment of Notes.........................................8 Section 4.02 SEC Reports..............................................8 Section 4.03 Compliance Certificate...................................8 Section 4.04 Notice of Certain Events.................................8 ARTICLE 5 SUCCESSORS.........................................................9 Section 5.01 When Company May Merge, etc..............................9 Section 5.02 Successor Corporation Substituted........................9 ARTICLE 6 DEFAULTS AND REMEDIES.............................................10 Section 6.01 Acceleration............................................10 Section 6.02 Other Remedies..........................................10 Section 6.03 Control by Majority.....................................10 Section 6.04 Limitation on Suits.....................................10 Section 6.05 Rights of Holders To Receive Payment....................11 Section 6.06 Priorities..............................................11 i Section 6.07 Section 6.08 Section 6.09 Undertaking for Costs...................................11 Proof of Claim..........................................12 Actions of a Holder.....................................12 ARTICLE 7 OTHER DISTRIBUTIONS...............................................12 Section 7.01 Priorities..............................................12 ARTICLE 8 TRUSTEE...........................................................13 Section 8.01 Duties of Trustee.......................................13 Section 8.02 Rights of Trustee.......................................14 Section 8.03 Individual Rights of Trustee; Disqualification..........14 Section 8.04 Trustee's Disclaimer....................................14 Section 8.05 Notice of Defaults......................................15 Section 8.06 Compensation and Indemnity..............................15 Section 8.07 Replacement of Trustee..................................16 Section 8.08 Successor Trustee by Merger, etc........................17 ARTICLE 9 SATISFACTION AND DISCHARGE........................................17 Section 9.01 Satisfaction and Discharge of Indenture.................17 Section 9.02 Application of Trust Funds..............................18 Section 9.03 Reinstatement...........................................18 Section 9.04 Repayment to Company....................................18 ARTICLE 10 AMENDMENTS.......................................................19 Section 10.01 Without Consent of Holders..............................19 Section 10.02 With Consent of Holders.................................19 Section 10.03 Compliance with Trust Indenture Act and Section 11.03...........................................20 Section 10.04 Revocation and Effect of Consents and Waivers...........20 Section 10.05 Notice of Amendment; Notation on or Exchange of Notes...................................................20 Section 10.06 Trustee Protected.......................................20 ARTICLE 11 SUBORDINATION....................................................21 Section 11.01 Notes Subordinated to Senior Debt.......................21 Section 11.02 Notes Subordinated in Any Proceeding....................21 Section 11.03 No Payment on Notes in Certain Circumstances............21 Section 11.04 Obligations of the Company Unconditional................21 Section 11.05 Trustee and Paying Agents Entitled to Assume Payments Not Prohibited in Absence of Notice............22 Section 11.06 Satisfaction and Discharge..............................22 Section 11.07 Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt......22 Section 11.08 No Fiduciary Duty of Trustee or Holders to Holders of Senior Debt..........................................22 Section 11.09 Trustee's Rights to Compensation, Reimbursement of Expenses and Indemnification............................23 ii Section 11.10 Exception for Certain Distributions.....................23 ARTICLE 12 MISCELLANEOUS....................................................23 Section 12.01 Notices.................................................23 Section 12.02 Communication by Holders with Other Holders.............23 Section 12.03 Certificate and Opinion as to Conditions Precedent......23 Section 12.04 Statements Required in Certificate or Opinion...........24 Section 12.05 Rules by Trustee........................................24 Section 12.06 No Recourse Against Others..............................24 Section 12.07 Variable Provisions.....................................24 Section 12.08 Governing Law...........................................25 Section 12.09 Counterparts; Facsimile.................................25 EXHIBIT A Form of Note iii INDENTURE dated as of August 29, 2003, between STREICHER MOBILE FUELING, INC., a Florida corporation (the "COMPANY"), and THE BANK OF CHERRY CREEK, A BRANCH OF WESTERN NATIONAL BANK, a Colorado corporation (the "Trustee"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company's 10% Senior Secured Notes due August 1, 2008, in substantially the form attached as EXHIBIT A hereto (the "NOTES"): DEFINITIONS AND RULES OF CONSTRUCTION SECTION 1.01 DEFINITIONS. "AFFILIATE" means any Person controlling, controlled by, or under common control with the referenced Person. "CONTROL" for this definition means the power to direct the management and policies of a Person, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise. The terms "controlling" and "controlled" have meanings correlative to the definition of "control." "BANKRUPTCY LAW" means Title 11 of the U.S. Code or any similar Federal or state law for the relief of debtors. "BOARD" means the Board of Directors of the Person or any officer or committee of the Board of Directors authorized to act for that Board of Directors. "BUSINESS DAY" means a day that is not a Legal Holiday. "COMMON STOCK" means the common stock of the Company as such common stock exists on the date of this Indenture. "COMPANY" means the party named in the preamble above until a successor that duly assumes the obligations upon the Notes and under the Indenture replaces that party and after that replacement means the successor. "CONGRESS" means Congress Financial Corporation, a Delaware corporation. "CONGRESS AGREEMENTS" means, collectively, the Loan and Security Agreement by and between the Company and Congress dated September 26, 2002 and the loan documents referenced therein, together with all amendments thereto. "CUSTODIAN" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. "DEBT" means, with respect to any Person, (a) any obligation of such Person to pay the principal of, premium of, if any, interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not a claim for such post-petition interest is allowed in such proceeding), penalties, reimbursement or indemnification amounts, fees, expenses or other amounts relating to any indebtedness, and any other liability, contingent or otherwise, of such Person (i) for borrowed money (including instances where the recourse of the lender is to the whole of the assets of such Person or to a portion thereof), (ii) evidenced by a note, debenture or similar instrument (including a purchase money obligation) including securities, (iii) for any letter of credit or performance bond in favor of such Person, or (iv) for the payment of money relating to a capitalized lease obligation; (b) any liability of others of the kind described in the preceding clause (a), which the Person has guaranteed or which is otherwise its legal liability; (c) any obligation of the type described in clauses (a) and (b) secured by a lien to which the property or assets of such Person are subject, whether or not the obligations secured thereby shall have been assumed by or shall otherwise be such Person's legal liability; and (d) any and all deferrals, renewals, extensions and refunding of, or amendments, modifications or supplements to, any liability of the kind described in any of the preceding clauses (a), (b) or (c). "DEFAULT" means any event that is, or after notice or passage of time would be, an Event of Default. "DISTRIBUTION" in any Proceeding means any payment or distribution of assets or securities of the Company of any kind or character from any source, whether in cash, securities or other property made by the Company, custodian, liquidating trustee or agent or any other person whether pursuant to a plan or otherwise. "EVENT OF DEFAULT" shall be as defined in the Note. "EXCHANGE ACT" means the Notes Exchange Act of 1934, as amended. "HOLDER" means a Person in whose name a Note is registered. "INDENTURE" means this Indenture as amended from time to time, including the terms of the Notes and any amendments. A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking institutions are not required to be open. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. "NOTES" means the executed 10% Senior Secured Promissory Notes due August 1, 2008 held by a Holder, in substantially the form attached as EXHIBIT A hereto. "OFFICER" means the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company. 2 "OFFICER'S CERTIFICATE" means a certificate signed the Chief Executive Officer, President, Chief Financial Officer, Treasurer or a Vice-President of the Company. See SECTIONS 12.03 and 12.04. "OPINION OF COUNSEL" means written opinion from legal counsel that is acceptable to Trustee. See SECTIONS 12.03 and 12.04. "PERSON" means any individual, corporation, partnership, joint venture, association, limited liability company, joint stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. "PRINCIPAL" means the principal of a Note plus the premium, if any, on a Note which is due or overdue or is to become due at the relevant time. "PROCEEDING" means a liquidation, dissolution, bankruptcy, insolvency, reorganization, receivership, or similar proceeding under Bankruptcy Law, an assignment for the benefit of creditors, any marshalling of assets or liabilities, or winding up or dissolution, but does not include any transaction permitted by, and made in compliance with, ARTICLE 5. "SEC" means the United States Notes and Exchange Commission. "SECURITIES PURCHASE AGREEMENT" means the agreement by and between the Company and the Purchasers (as defined therein), dated the date hereof. "SENIOR DEBT" means debt of the Company whenever incurred, outstanding at any time, which expressly states by its terms that it is senior in right of payment to the Notes, including, but not limited to, the debt evidenced under the Congress Agreements; PROVIDED, HOWEVER, that Debt held by the Company or any Affiliate of the Company is not deemed to be Senior Debt. "SENIOR DEBT DEFAULT NOTICE" means any notice of a default (other than a Senior Debt Payment Default) that permits the holders of any Senior Debt to declare such Senior Debt due and payable. "SENIOR DEBT PAYMENT DEFAULT" means a default in the payment of any principal of or interest on any Senior Debt. "TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb), as amended from time to time. "TRUSTEE" means the party named in the preamble above until a successor replaces that party and after that replacement means the successor. See also SECTION 11.02. "U.S. GOVERNMENT OBLIGATIONS" means securities that are direct, noncallable, nonredeemable obligations of, or noncallable, nonredeemable obligations guaranteed by, the United States for the timely payment of which obligation or guarantee the full faith and credit of the United 3 States is pledged, or funds consisting solely of those securities, including funds managed by Trustee or one of its Affiliates (including funds for which it or its Affiliates receives fees in connection with such management). SECTION 1.02 OTHER DEFINITIONS. TERM DEFINED IN SECTION "Notice".................................................................11.01 "Paying Agent"............................................................2.03 "Registrar"...............................................................2.03 "Total Debt"..............................................................5.01 "Total Debt Ratio"........................................................5.01 SECTION 1.03 RULES OF CONSTRUCTION. Unless the context otherwise requires: (a) a term defined in SECTION 1.01 or SECTION 1.02 has the meaning assigned to it in those Sections; (b) an accounting term not otherwise defined has the meaning assigned to that term in accordance with generally accepted accounting principles in the United States; (c) the word "or" is not exclusive; (d) a word in the singular includes the plural, and a word in the plural includes the singular; (e) provisions apply to successive events and transactions; and (f) the word "including" means including without limitation. ARTICLE 2 THE SECURITIES SECTION 2.01 FORM AND DATING. The Notes will be substantially in the form attached hereto as Exhibit A, the terms of which are incorporated by reference in, and expressly made a part of, this Indenture. The Notes may have notations, legends, or endorsements required by law, national stock exchange rule, automated quotation system, an agreement to which the Company is subject, or usage. Each Note will be dated the date of its issuance. SECTION 2.02 EXECUTION. (a) An authorized Officer will sign the Notes for the Company, by manual or facsimile signature. 4 (b) If an Officer whose signature is on a Note no longer holds that office at the time the Note is issued, the Note is still valid. SECTION 2.03 AGENTS. (a) The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the "REGISTRAR") and where Notes may be presented for payment (the "PAYING AGENT"). The Registrar will keep a register of the Notes and of their transfer and exchange. (b) The Company may appoint more than one Registrar or Paying Agent. The Company will notify Trustee of the name and address of any Registrar or Paying Agent not a party to this Indenture. If the Company does not appoint another Registrar or Paying Agent, the Company will act in that capacity. SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST. On or prior to each due date of the Principal of or interest on any Note, the Company will deposit with Paying Agent, or the Company or its Affiliate will segregate and hold in a separate trust fund, a sum sufficient to pay that Principal and interest. If the Company is not the Paying Agent, then the Company will require each Paying Agent, other than Trustee, to agree in writing that Paying Agent will hold in trust for the benefit of Holders all money held by Paying Agent for the payment of the Principal of or interest on the Notes. The Paying Agent will notify the Holders and Trustee of any Default by the Company in making any such payment and will comply with ARTICLE 11. While any such Default continues, the Company may require Paying Agent to pay all money held by it to Trustee and to account for any funds disbursed by Paying Agent. Upon complying with this SECTION 2.04, Paying Agent shall have no further liability for the money delivered to Trustee. If the Company or any Affiliate of the Company acts as Paying Agent, the Company or that Affiliate will segregate the money held as Paying Agent and hold the money as a separate trust fund. SECTION 2.05 HOLDER LISTS. The Registrar will preserve in as current a form as is reasonably practicable the most recent list available to Registrar of the names and addresses of Holders. The Company will furnish to Trustee, in writing at least ten (10) Business Days before each interest payment date and at such other times as Trustee may request, a list in such form and as of such date as Trustee may reasonably require of the names and addresses of Holders. SECTION 2.06 TRANSFER AND EXCHANGE (a) The Notes will be issued in unregistered form and will be transferable only upon surrender of a Note for registration of transfer and pursuant to the transfer restrictions noted in the Note. When a Note is presented to the Registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of other denominations in accordance with the provisions of the Note, the Registrar will register the transfer or make the exchange if the requirements for such transactions are met and the Note has not been redeemed. The Company may charge a reasonable fee for any registration of transfer or exchange. 5 (b) All notes issued upon any transfer or exchange pursuant to the terms of this Indenture and the Notes will evidence the same debt and will be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange. SECTION 2.07 OUTSTANDING NOTES. (a) Notes "outstanding" at any time are all Notes, except for those cancelled by Trustee or delivered to Trustee for cancellation pursuant to Section 2.09. A Note does not cease to be outstanding because the Company or an Affiliate holds the Note. (b) A Note considered paid under SECTION 4.01 ceases to be outstanding and interest on that Note ceases to accrue. SECTION 2.08 TREASURY NOTES DISREGARDED FOR CERTAIN PURPOSES. In determining whether the Holders of the required Principal amount of Notes have concurred in any direction, waiver, or consent, any Notes owned by the Company or an Affiliate will be disregarded and deemed not to be outstanding, except that, for the purposes of determining whether Trustee will be protected in relying on any such direction, waiver, or consent, only Notes which Trustee knows are owned by the Company or an Affiliate will be disregarded. Notes owned by the Company or Affiliate that have been pledged in good faith will not be disregarded if the pledgee establishes to the satisfaction of Trustee the pledgee's right to deliver any direction, waiver, or consent with respect to the Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company or of that other obligor. SECTION 2.09 CANCELLATION. The Company at any time may deliver Notes to Trustee for cancellation. The Paying Agent will forward to Trustee any Notes surrendered to the Paying Agent for payment. The Trustee will cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and will dispose of canceled Notes according to Trustee's standard procedures or as the Company otherwise directs. The Company may not issue new Notes to replace Notes that (a) the Company has paid or (b) have been delivered to Trustee for cancellation. ARTICLE 3 REDEMPTION SECTION 3.01 NOTICE TO TRUSTEE. (a) If Notes are to be redeemed or pre-paid (hereinafter individually and collectively referred to as a "redemption"), the Company will notify Trustee of the redemption date, the Principal amount of Note(s) to be redeemed and the provision of the Notes permitting or requiring the redemption. 6 (b) The Company may reduce the Principal amount of Notes required to be redeemed pursuant to the terms of the Notes if the Company notifies Trustee of the amount of the credit and the basis for the reduction by delivery of an Officer's Certificate. If the reduction is based on a credit for redeemed, converted, or canceled Notes that the Company has not previously delivered to Trustee for cancellation, the Company will deliver such Notes to Trustee before the selection of Notes to be redeemed. (c) The Company will give each notice provided for in this ARTICLE 3 at least forty-five (45) days but not more than sixty (60) days before the redemption date, unless a shorter period is permitted in the Notes or a shorter period is satisfactory to Trustee. SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED. If less than all the Notes are to be redeemed, Trustee will select the Notes to be redeemed by a method that complies with the requirements, if any, of the Notes and that Trustee considers fair and appropriate, which may include selection pro rata or by lot. The Trustee will make the selection from the applicable Notes outstanding not previously called for redemption. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. SECTION 3.03 NOTICE OF REDEMPTION. The Company will send the notice of redemption to each Holder whose Notes are to be redeemed as required by the Notes. SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is mailed, Notes called for redemption become due and payable on the redemption date at the redemption price. Upon surrender to the Paying Agent, those called Notes will be paid at the redemption price stated in the notice in accordance with the terms of the Notes. Failure to give notice or any defect in the notice to any Holder will not affect the validity of the notice to any other Holder. SECTION 3.05 DEPOSIT OF REDEMPTION PRICE. On or before the redemption date, the Company will deposit with the Paying Agent (or, if the Company or any Affiliate is the Paying Agent, will segregate and hold in trust) money sufficient to pay the redemption price of, and accrued interest on, all Notes to be redeemed. SECTION 3.06 SECURITIES REDEEMED IN PART. Upon surrender of a Note that is redeemed in part, the Company will deliver to the Holder, at the Company's expense, a new Note equal in Principal amount to the unredeemed portion of the redeemed Note. 7 ARTICLE 4 COVENANTS SECTION 4.01 PAYMENT OF NOTES. (a) The Company will pay the Principal of, and interest on, the Notes on the dates and in the manner provided in the Note and this Indenture. Principal and interest will be considered paid on the date due if the Paying Agent holds in accordance with this Indenture on that date money sufficient to pay all Principal and interest then due and (i) if the Paying Agent is the Company or its Affiliate, the Company or its Affiliate pays the amounts due on that date, or (ii) if the Paying Agent is not the Company or its Affiliate, the Paying Agent is not prohibited from paying such money to the Holders on such date pursuant to the terms of this Indenture. (b) The Company will pay interest on overdue Principal and interest in accordance with the terms of, and at the rate prescribed in, the Notes. SECTION 4.02 SEC REPORTS. From the date hereof until such time as all Notes have been paid in full, the Company will provide Trustee with copies of the annual reports and of the information, documents and other reports which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company will also cause copies of any quarterly and annual reports which it makes available to the Company's stockholders to be mailed to the Holders. Delivery of those reports, information, documents, and other reports to Trustee is for informational purposes only and Trustee's receipt of those reports will not constitute notice or constructive notice of any information contained in those reports or determinable from information contained in those reports, including the Company's compliance with any of covenants under this Indenture (as to which Trustee is entitled to rely exclusively on Officer's Certificates). SECTION 4.03 COMPLIANCE CERTIFICATE. The Company will deliver to Trustee, within one hundred five (105) days after the end of each fiscal year of the Company, a brief certificate signed by the chief executive officer, chief financial officer or principal accounting officer of the Company, as to the signer's knowledge, of the Company's compliance with all conditions and covenants contained in this Indenture and the Note (determined without regard to any period of grace or requirement of notice provided in this Indenture). SECTION 4.04 NOTICE OF CERTAIN EVENTS. The Company shall give prompt written notice to Trustee, each Holder and any Paying Agent of (a) any Proceeding, (b) any Default or Event of Default, (c) any cure or waiver of any Default or Event of Default, (d) any Senior Debt Payment Default or Senior Debt Default Notice, and (e) if and when any of the Notes are listed on any national stock exchange. 8 ARTICLE 5 SUCCESSORS SECTION 5.01 WHEN COMPANY MAY MERGE, ETC. (a) Without the consent in writing of the Holders of a majority of the principal amount of the Notes, the Company will not consolidate or merge with or into, or transfer all or substantially all of its assets to, or acquire all or substantially all of the assets of, any Person, unless: (i) either: (A) the Company will be the resulting or surviving entity or (B) that Person (1) is a corporation organized and existing under the laws of the United States, a State of the United States or the District of Columbia and (2) assumes by supplemental indenture all the obligations of the Company under the Notes and this Indenture; and (ii) the ratio of Total Debt divided by EBITDA (the "TOTAL DEBT RATIO") is equal to or less than 3.0; and (iii) immediately before and immediately after the transaction no Default exists; and (iv) Richard E. Gathright remains as Chief Executive Officer of the Company; and (v) prior to the proposed transaction, the Company delivers to Trustee an Officer's Certificate and an Opinion of Counsel, each of which will state that such consolidation, merger, or transfer and the supplemental indenture comply with this ARTICLE 5 and that the Company has complied with all conditions precedent in this Indenture and relating to this transaction. (b) As used in this SECTION 5.01, "TOTAL DEBT" means all Debt of the Company, including all subordinated debt; PROVIDED, HOWEVER, that Senior Debt, accounts payable and accrued liabilities incurred in the ordinary course of business shall not be included in such calculation. (c) As used in this SECTION 5.01, "EBITDA" means earnings before interest, taxes, depreciation and amortization calculated on an annualized basis based on the 12 calendar months preceding the month in which such transaction occurs. SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation, merger, or any transfer of all or substantially all of the assets of the Company in accordance with SECTION 5.01, the successor corporation formed by that consolidation or 9 into which the Company is merged or to which such transfer is made, will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if that successor had been named as the Company in this Indenture and in the Notes. After that succession, the obligations of the Company under the Notes and this Indenture will terminate, except for, in the case of a transfer, the obligation to pay the Principal of, and interest on, the Notes. ARTICLE 6 DEFAULTS AND REMEDIES SECTION 6.01 ACCELERATION. Principal and interest on a Note will be due and payable immediately pursuant to the terms of the Note and SECTION 6.06 below upon the occurrence and continuation of an Event of Default. SECTION 6.02 OTHER REMEDIES. (a) If an Event of Default occurs and is continuing, Trustee may pursue any available remedy to collect the payment of Principal or interest on the Note or to enforce the performance of any provision of the Notes, this Indenture or the Security Agreement. (b) The Trustee may maintain a proceeding under (a) above even if the Trustee does not possess any of the Notes or does not produce any of them in the Proceeding. A delay or omission by Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default will not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law. SECTION 6.03 CONTROL BY MAJORITY. The Holders of a majority in Principal amount of the Notes may direct the time, method, and place of conducting any Proceeding for any remedy available to Trustee or exercising any trust or power conferred on Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights of other Holders, or would involve Trustee in personal liability or expense for which Trustee has not received a satisfactory indemnity. SECTION 6.04 LIMITATION ON SUITS. (a) A Holder may pursue a remedy with respect to this Indenture or the Holder's Note only if: (i) Trustee receives notice of an Event of Default; (ii) the Holders of at least twenty-five percent (25%), in Principal amount of the Notes make a written request to Trustee to pursue the remedy; 10 (iii) Trustee either (A) gives to such Holders notice it will not comply with the request, or (B) does not comply with the request within fifteen (15) days after receipt of the request; and (iv) the Holders of a majority in Principal amount of the Notes do not give Trustee a direction inconsistent with the request prior to the earlier of the date, if ever, on which Trustee delivers a notice under SECTION 6.04(A) (III)(A) or the expiration of the period described in SECTION 6.04(A)(III)(B). (b) A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. SECTION 6.05 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. (a) Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of Principal and interest on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, will not be impaired or affected without the consent of the Holder. (b) Nothing in this Indenture limits or defers the right or ability of any Holder to petition for commencement of a case under applicable Bankruptcy Law, to the extent consistent with that Bankruptcy Law. SECTION 6.06 PRIORITIES. (a) After an Event of Default, any money or other property distributable in respect of the Company's obligations under this Indenture will be paid in the following order: (i) predecessor (ii) first, to Trustee (including any Trustee) for amounts due under SECTION 8.06; second, to holders of Senior Debt to the extent required by ARTICLE 11; (iii) third, to Holders for amounts due and unpaid on the Notes for Principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for Principal and interest, respectively; and (iv) fourth, to the Company. (b) The Trustee may fix a record date and payment date for any payment to Holders. SECTION 6.07 UNDERTAKING FOR COSTS. In any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the 11 court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section will not apply to a suit by Trustee, a suit by a Holder pursuant to SECTION 6.05, or a suit by Holders of more than ten percent (10%) in Principal amount of the Notes. SECTION 6.08 PROOF OF CLAIM. In the event of any Proceeding, Trustee may file a claim for the unpaid balance of the Notes in the form required in the Proceeding and cause the claim to be approved or allowed. Nothing contained in this Indenture will be deemed to authorize Trustee to authorize or consent to, or accept or adopt on behalf of, any Holder any plan of reorganization, arrangement, adjustment, or composition affecting the Notes or the rights of any Holder, or to authorize Trustee to vote in respect of the claim of any Holder in any Proceeding. SECTION 6.09 ACTIONS OF A HOLDER. For the purpose of providing any consent, waiver or instruction to the Company or Trustee, a "Holder" shall include a Person who provides to the Company or Trustee, as the case may be, an affidavit of beneficial ownership of a Note together with a satisfactory indemnity against any loss, liability, or expense to that party, to the extent that such party acts upon such affidavit of beneficial ownership, including any consent, waiver or instructions given by a Person providing such affidavit and indemnity. ARTICLE 7 OTHER DISTRIBUTIONS SECTION 7.01 PRIORITIES. (a) Upon a full or partial sale of Collateral pursuant to the terms of the Security Agreement, Trustee will hold the proceeds thereof in a separate account for the benefit of Holders in kind, and any money or other property distributable in respect of the Company's obligations under this Indenture will be paid in the following order: (i) first, to Trustee (including any predecessor Trustee) for amounts due under SECTION 8.06; (ii) second, to holders of Senior Debt to the extent required by ARTICLE 11; (iii) third, to Holders for amounts due and unpaid on the Notes for Principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for Principal and interest, respectively; and (iv) fourth, to the Company. 12 (b) Any money or other property distributable arising out of foreclosure proceedings brought against the Company and distributable in respect of the Company's obligations under this Indenture will be paid in the order noted in SECTION 7.01(A) above. (c) The Trustee may fix a record date and payment date for any payment to Holders pursuant to this ARTICLE 7. ARTICLE 8 TRUSTEE SECTION 8.01 DUTIES OF TRUSTEE. (a) If an Event of Default has occurred and is continuing, Trustee will exercise those rights and powers vested in it by the Indenture, the Notes and the Security Agreement, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs, including the exercise of the remedies set forth in this Indenture and the Note. (b) Except during the continuance of an Event of Default: (i) The Trustee need perform only those duties that are specifically set forth in this Indenture, the Notes and the Security Agreement. (ii) In the absence of bad faith on its part, Trustee may conclusively rely upon certificates or opinions furnished to Trustee and conforming to the requirements of this Indenture, as to the truth of the statements and the correctness of the opinions expressed in those certificates and opinions. However, Trustee will examine the certificates and opinions to determine whether or not the certificates and opinions conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) This paragraph does not limit the effect of SECTION 8.01(B). (ii) Trustee will not be liable for any error of judgment made in good faith by a Trustee or by any agent, employee or affiliate of Trustee, unless a court of competent jurisdiction finds that Trustee was negligent in ascertaining the pertinent facts. (iii) Trustee will not be liable with respect to any action Trustee takes or omits to take in good faith in accordance with a direction received by Trustee pursuant to SECTION 6.03. 13 (iv) Trustee may refuse to perform any duty or exercise any right or power which would require Trustee to expend its own funds or risk any liability if Trustee reasonably believes that repayment of such funds or adequate indemnity against that risk is not reasonably assured to Trustee. (d) Every provision of this Indenture that in any way relates to Trustee is subject to SECTION 8.01(a), (b) and (c). (e) The Trustee will not be liable for interest on any money received by Trustee, except as Trustee may agree with the Company. The Trustee is not required to segregate money in trust from other funds, except to the extent required by this Indenture or as may be otherwise required by law. SECTION 8.02 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document believed by Trustee to be genuine and to have been signed or presented by the proper Person. The Trustee is not required to investigate any fact or matter stated in the document. (b) Before Trustee acts or refrains from acting, Trustee may require an Officer's Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officer's Certificate or an Opinion of Counsel. The Trustee may also consult with counsel on any matter relating to this Indenture or the Notes. The Trustee shall not be liable for any action Trustee takes or omits to take in good faith in reliance on the advice of counsel. (c) The Trustee may act through agents and will not be responsible for the misconduct or negligence of any agent appointed with due care. (d) The Trustee will not be liable for any action Trustee takes or omits to take in good faith which Trustee believes to be authorized or within Trustee's rights or powers. (e) Trustee will only be charged with knowledge of agents, officers, employees or other affiliates of Trustee. SECTION 8.03 INDIVIDUAL RIGHTS OF TRUSTEE; DISQUALIFICATION. Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or an Affiliate with the same rights Trustee would have if it were not Trustee. SECTION 8.04 TRUSTEE'S DISCLAIMER. Trustee will have no responsibility for the validity or adequacy of this Indenture, the Security Agreement or the Notes. The Trustee will not be accountable for the Company's use of the proceeds from the Notes. The Trustee will not be responsible for the accuracy or completeness of any statement of fact in the Security Agreement or the Notes. 14 SECTION 8.05 NOTICE OF DEFAULTS. If a continuing Default is known to Trustee, Trustee will mail to the Holders a notice of the Default no later than thirty (30) days after it is aware of such Default. Except in the case of a Default in payment on any Note, Trustee may withhold the notice if and so long as Trustee in good faith determines that withholding the notice is in the interests of the Holders. Trustee shall mail to Holders any notice it receives from the Holder(s) under SECTION 6.04, and of any notice Trustee provides pursuant to SECTION 6.04(C)(I). SECTION 8.06 COMPENSATION AND INDEMNITY. (a) The Company will pay to Trustee from time to time reasonable compensation for Trustee's services. The Trustee's compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse Trustee upon request for all reasonable out-of-pocket expenses incurred by Trustee. Those expenses will include the reasonable compensation and out-of-pocket expenses of Trustee's agents and counsel. (b) The Company will indemnify Trustee against any loss, liability or expense incurred by Trustee. The Trustee will notify the Company promptly of any claim for which Trustee may seek indemnity. The Company shall defend the claim and Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without the Company's consent, which consent shall not unreasonably be withheld. (c) The Company need not reimburse any expense or indemnify against any loss or liability incurred by Trustee through gross negligence, willful misconduct, or bad faith. (d) To secure the Company's payment obligations in this SECTION 8.06, Trustee will have a lien prior to the Notes on all money or property held or collected by Trustee, except that money held in trust to pay Principal and interest on particular Notes. (e) Without prejudice to its rights under this Indenture, when Trustee incurs expenses or renders services after an Event of Default relating to the following, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law when: (i) the Company pursuant to, or within the meaning of, any Bankruptcy Law: (A) commences a voluntary case; (B) consents to the entry of an order for relief against the Company in an involuntary case; (C) consents to the appointment of a Custodian of the Company or for all or substantially all of the Company's property; or 15 (D) makes a general assignment for the benefit of the Company's creditors; or (ii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of the Company's property, or (C) orders the liquidation of the Company, and the order or decree remains unstayed and in effect for sixty (60) days. SECTION 8.07 REPLACEMENT OF TRUSTEE. (a) A resignation or removal of Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee's acceptance of appointment as provided in this SECTION 8.07. (b) The Trustee may resign by notifying the Company. The Holders of a majority in Principal amount of the Notes may remove Trustee by notifying Trustee and the Company. The Company may remove Trustee if: (i) Trustee fails to comply with SECTION 8.08; (ii) Trustee is adjudged bankrupt or insolvent; (iii) a receiver or public officer takes charge of Trustee or its property; or (iv) Trustee becomes incapable of acting. (c) If Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. (d) If a successor Trustee is not appointed and does not take office within thirty (30) days after the retiring Trustee resigns or is removed, the retiring Trustee may appoint a successor Trustee at any time prior to the date on which a successor Trustee takes office. If a successor Trustee does not take office within forty-five (45) days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or, subject to SECTION 6.07, any Holder may petition any court of competent jurisdiction for the appointment of a successor Trustee. (e) If Trustee fails to comply with SECTION 8.08, any Holder may petition any court of competent jurisdiction for the removal of Trustee and the appointment of a successor Trustee. Within one (1) year after a successor Trustee appointed by the Company or a court pursuant to this SECTION 8.07 16 takes office, the Holders of a majority in Principal amount of the Notes may appoint a successor Trustee to replace such successor Trustee. (f) A successor Trustee will deliver a written acceptance of the appointment to the retiring Trustee and to the Company. Upon receipt of the acceptance by the Company, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers, and duties of Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to the Holders. The retiring Trustee will promptly transfer all property held by that retiring Trustee as Trustee to the successor Trustee, subject to the lien provided for in SECTION 8.06. SECTION 8.08 SUCCESSOR TRUSTEE BY MERGER, ETC. If Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee. ARTICLE 9 SATISFACTION AND DISCHARGE SECTION 9.01 SATISFACTION AND DISCHARGE OF INDENTURE. (a) This Indenture shall cease to be of further effect (except as to any surviving rights of conversion, registration of transfer or exchange of Notes expressly provided for herein), and Trustee, on demand of and at expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (i) Either (A) all Notes theretofore delivered (other than Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in SECTION 9.04) have been delivered to Trustee for cancellation; or (B) all such Notes not theretofore delivered to Trustee for cancellation (i) have become due and payable, (ii) will become due and payable at their stated maturity within one (1) year, or (iii) are to be called for redemption within one (1) year under arrangements satisfactory to Trustee for the giving of notice of redemption by Trustee in the name, and at the expense, of the Company, and the Company has deposited or caused to be deposited with Trustee in trust an amount of money or U.S. Government Obligations sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to Trustee for cancellation, for Principal and interest to 17 the date of such deposit (in the case of Notes which have become due and payable) or to the stated maturity or redemption date, as the case may be; (ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (iii) the Company has delivered to Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture have been complied with. (b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Holders under SECTION 4.01, to Trustee under SECTION 8.06, and, if money or U.S. Government Obligations shall have been deposited with Trustee pursuant to SECTION 9.01(A)(I)(B) of this Section, the obligations of Trustee under SECTION 9.02 shall survive. SECTION 9.02 APPLICATION OF TRUST FUNDS. The Trustee or Paying Agent shall hold in trust, for the benefit of the Holders, all money and U.S. Government Obligations deposited with it (or into which such money and U.S. Government Obligations are reinvested) pursuant to SECTION 9.01. It shall apply such deposited money and money from U.S. Government Obligations in accordance with this Indenture to the payment of the Principal and interest on the Notes. Money and U.S. Government Obligations so held in trust (a) are not subject to ARTICLE 11 and (b) are subject to Trustee's rights under SECTION 8.06. SECTION 9.03 REINSTATEMENT. (a) If Trustee or Paying Agent is unable to apply any money or U.S. Obligations in accordance with SECTION 9.01 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Notes will be revived and restated as though no deposit had occurred pursuant to this ARTICLE 9, until such time as Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with SECTION 9.01; PROVIDED, HOWEVER, that if the Company makes any payment of Principal of, or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by Trustee or Paying Agent after payment in full to the Holders. SECTION 9.04 REPAYMENT TO COMPANY. (a) The Trustee and Paying Agent shall promptly turn over to the Company upon request any excess money or U.S. Government Obligations held by them at any time. All money or U.S. Government Obligations deposited with Trustee pursuant to SECTION 9.01 (and held by it or a Paying Agent) for the payment of Notes subsequently redeemed or cancelled will be returned to the Company upon request. 18 (b) The Trustee and the Paying Agent shall pay to the Company upon request any money held by them for payment of Principal or interest that remains unclaimed for two (2) years after the right to such money has matured. After payment to the Company, Holders entitled to the money shall look to the Company for payment as unsecured general creditors unless an abandoned property law designates another Person. ARTICLE 10 AMENDMENTS SECTION 10.01 WITHOUT CONSENT OF HOLDERS. The Company and Trustee may amend this Indenture or the Notes without the consent of any Holder: (a) to cure any ambiguity, defect or inconsistency; (b) to comply with SECTION 4.01; or (c) to make any change that does not adversely affect the rights of any Holder. SECTION 10.02 WITH CONSENT OF HOLDERS. (a) The Company and Trustee may amend this Indenture or the Notes with the written consent of the Holders of at least a majority in Principal amount of the Notes. However, without the consent of each Holder affected, an amendment under this Section may not: (i) reduce the amount of Notes whose Holders must consent to an amendment; (ii) reduce the interest on or change the time for payment of interest on any Note; (iii) reduce the Principal of or change the fixed maturity of any Note; (iv) reduce the premium payable upon the redemption of any Note or change the time at which any Note may or will be redeemed; (v) make any Note payable in money other than that stated in the Note; (vi) make any change in SECTION 6.05 or this SECTION 10.02 (second sentence); or (vii) make any change in ARTICLE 11 that adversely affects the rights of any Holder. 19 (b) The consent of the Holders under this Section will not be necessary to approve the particular form of any proposed amendment, but will be sufficient if that consent approves the substance of that amendment. (c) An amendment under this SECTION 10.02 may not make any change that adversely affects the rights under ARTICLE 11 of any Senior Debt unless the holder(s) thereof consent(s) to the change. SECTION 10.03 COMPLIANCE WITH TRUST INDENTURE ACT AND SECTION 12.03. Every amendment to this Indenture or the Notes shall comply with the TIA as then in effect, so long as the Indenture and Notes are subject to the TIA. The Trustee is entitled to, and the Company will provide, an Opinion of Counsel and Officer's Certificate pursuant to SECTION 12.03 that Trustee's execution of any amendment or supplemental indenture is permitted under this ARTICLE 10. SECTION 10.04 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. (a) A consent to an amendment or a waiver by a Holder of a Note will bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder's Note, even if a notation of the consent or waiver is not made on the Note. (b) The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, will be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such Persons continue to be Holders after such record date. No consent will be valid or effective for more than one hundred twenty (120) days after the record date. SECTION 10.05 NOTICE OF AMENDMENT; NOTATION ON OR EXCHANGE OF NOTES. (a) After any amendment under this ARTICLE 10 becomes effective, the Company will mail to the Holders a notice briefly describing that amendment. The failure to give notice to all Holders, or any defect in that notice, will not impair or affect the validity of an amendment under this ARTICLE 10. (b) The Company or Trustee may place an appropriate notation about an amendment or waiver on any Note issued after the date of that amendment or waiver. The Company may issue in exchange for affected Notes new Notes that reflect the amendment or waiver. SECTION 10.06 TRUSTEE PROTECTED. The Trustee need not sign any supplemental indenture that adversely affects that Trustee's rights. 20 ARTICLE 11 SUBORDINATION SECTION 11.01 NOTES SUBORDINATED TO SENIOR DEBT. Except for the rights of Holders to the Collateral described in the Security Agreement, which is a first priority security interest in such Collateral, the rights of Holders to payment of the Principal of and interest on the Notes is subordinated to the rights of holders of Senior Debt, to the extent and in the manner provided in this ARTICLE 11 and the Notes. SECTION 11.02 NOTES SUBORDINATED IN ANY PROCEEDING. In the event that any Distribution in any Proceeding is received by Trustee before all Senior Debt is paid in full, such Distribution will be applied by Trustee in accordance with this ARTICLE 11. As used in this ARTICLE 11, "Trustee" includes any Paying Agent. SECTION 11.03 NO PAYMENT ON NOTES IN CERTAIN CIRCUMSTANCES. (a) The Company shall not, directly or indirectly (other than in capital stock of the Company) pay any Principal of or interest on, redeem, defease or repurchase the Notes except as provided in the Notes. (b) If any Distribution, payment or deposit to redeem, defease or acquire any of the Notes shall have been received by Trustee or Paying Agent at a time when such Distribution was prohibited by the provisions of SECTION 11.03(A), then, unless such Distribution is no longer prohibited by SECTION 11.03(A), such Distribution will be received and applied by Trustee or Paying Agent for the benefit of the holders of Senior Debt, and will be paid or delivered by Trustee or Paying Agent to the holders of Senior Debt for application to the payment of all Senior Debt, pursuant to the terms of the Notes and (i) the Congress Agreements, in the case of Congress, and (ii) the applicable Senior Debt Agreement(s), in the case of other holders of Senior Debt. SECTION 11.04 OBLIGATIONS OF THE COMPANY UNCONDITIONAL. Nothing in this Indenture is intended to or shall impair, as between the Company and the Holders, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the Principal of and interest on the Notes as and when the same will become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company, other than the holders of Senior Debt. If the Company fails because of this ARTICLE 11 to pay principal of or interest on a Note on the due date, the failure is still a Default. Upon any Distribution, Trustee and the Holders will be entitled to rely upon any order or decree made by any court of competent jurisdiction in which the Proceeding is pending, or a certificate of the liquidating trustee or agent or other Person making any Distribution for the purpose of ascertaining the Persons entitled to participate in such Distribution, the holders of Senior Debt and other Debt of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this ARTICLE 11. 21 SECTION 11.05 TRUSTEE AND PAYING AGENTS ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE OF NOTICE. The Trustee or Paying Agent shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by Trustee or Paying Agent, unless and until Trustee or Paying Agent shall have received, no later than three (3) Business Day(s) prior to such payment, written notice thereof from the Company or from one or more holders of Senior Debt (or shall have expressly declared in writing actual knowledge of such fact) and, prior to the receipt of any such written notice (or the existence of such declaration), Trustee or Paying Agent will be entitled in all respects conclusively to presume that no such fact exists. Unless Trustee or Paying Agent shall have received the notice provided for in the preceding sentence or shall have expressly declared in writing actual knowledge of such fact, Trustee or Paying Agent shall have full power and authority to receive such payment and to apply the same to the purpose for which it was received, and shall not be affected by any notice to the contrary which may be received by it on or after such date. The foregoing shall not apply to the Company or any of its Affiliates acting as Paying Agent. SECTION 11.06 SATISFACTION AND DISCHARGE. Amounts deposited in trust with Trustee pursuant to and in accordance with ARTICLE 9 and not prohibited to be deposited under SECTION 11.03(A) when deposited shall not be subject to this ARTICLE 11. SECTION 11.07 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR DEBT. No right of any holder of any Senior Debt established in this Article 11 shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any failure by the Company to comply with the terms of this Indenture. SECTION 11.08 NO FIDUCIARY DUTY OF TRUSTEE OR HOLDERS TO HOLDERS OF SENIOR DEBT. Neither Trustee nor the Holders owes any fiduciary duty to the holders of Senior Debt. Neither Trustee nor the Holders will be liable to any holder of Senior Debt in the event that Trustee, acting in good faith, shall pay over or distribute to the Holders, the Company, or any other Person, any property to which any holders of Senior Debt are entitled by virtue of this ARTICLE 11 or otherwise. Nothing contained in this SECTION 11.08 shall affect the obligation of any other such Person to hold such payment for the benefit of, and to pay such payment over to, the holders of Senior Debt. 22 SECTION 11.09 TRUSTEE'S RIGHTS TO COMPENSATION, REIMBURSEMENT OF EXPENSES AND INDEMNIFICATION. The Trustee's rights to compensation, reimbursement of expenses and indemnification under Sections 6.06 and 8.06 are not subordinated. SECTION 11.10 EXCEPTION FOR CERTAIN DISTRIBUTIONS. The rights of holders of Senior Debt under this ARTICLE 11 do not extend (a) to any Distribution to the extent applied to Trustee's rights to compensation, reimbursement of expenses or indemnification or (b) to Distributions under any plan approved by the court in any Proceeding. ARTICLE 12 MISCELLANEOUS SECTION 12.01 NOTICES. (a) Any Notice by one party to the other will be in writing and sent to the other's address stated in Section 12.07. The Notice is duly given if it is delivered in person or sent by a national courier service which provides next Business Day delivery or by first-class mail. (b) A party, by Notice to the other party, may designate additional or different addresses for subsequent Notices. (c) Any Notice sent to a Holder will be mailed by first-class letter mailed to its address shown on the register kept by the Company. Failure to mail a Notice to a Holder or any defect in a Notice mailed to a Holder shall not affect the sufficiency of the Notice mailed to other Holders. (d) If a Notice is delivered or mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it. (e) If the Company mails a Notice to Holders, it shall deliver or mail a copy to Trustee at the same time. (f) As used in this ARTICLE 12, "NOTICE" includes any communication required by this Indenture. SECTION 12.02 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders may communicate with other Holders with respect to their rights under this Indenture, the Note or the Securities Purchase Agreement. SECTION 12.03 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any request or application by the Company to Trustee to take any action under this Indenture, the Company shall furnish to Trustee: 23 (a) an Officer's Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an Opinion of Counsel staring that, in the opinion of such counsel, all such conditions precedent have been complied with. SECTION 12.04 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (a) a statement that each Person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such Person, the Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with. SECTION 12.05 RULES BY TRUSTEE. The Trustee may make reasonable rules for action by or a meeting of Holders. SECTION 12.06 NO RECOURSE AGAINST OTHERS. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the indenture or for any claim based on, in respect of or by reason of such obligations or their creation. SECTION 12.07 VARIABLE PROVISIONS. (a) The Company will initially act as Paying Agent. (b) The first certificate pursuant to SECTION 4.03 will be for the fiscal year ending on June 30, 2004. (d) The depositary institution into which Trustee or Paying Agent deposits any funds held under this Indenture shall always have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee and Paying Agent will be deemed to be in compliance with the capital and surplus requirement set forth in the preceding sentence if the obligations of such depositary institution are guaranteed by a Person which could otherwise qualify as such depositary institution hereunder. 24 The Company's address is: Streicher Mobile Fueling, Inc. 800 W. Cypress Creek Rd. Suite 580 Fort Lauderdale, Florida 33309 Facsimile No.: (954) 308-4210 Attention: Richard E. Gathright The Trustee's address is: The Bank of Cherry Creek A Branch of Western National Bank 3033 East 1st Avenue Denver, CO 80206 Facsimile No.: 303-394-5320 Attention: Philip Munishor SECTION 12.08 GOVERNING LAW. The laws of the State of Florida shall govern this Indenture, without regard to the conflicts of laws of that state. SECTION 12.09 COUNTERPARTS; FACSIMILE. This Indenture 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 Indenture may be transmitted by facsimile and such transmission shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS] 25 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be executed by their respective duly authorized officers or persons as of the date first set forth above. STREICHER MOBILE FUELING, INC. By: /S/RICHARD E. GATHRIGHT -------------------------------------Richard E. Gathright, President and Chief Executive Officer Attest: /S/LOUISE P. LUNGARO --------------------------------Assistant Secretary THE BANK OF CHERRY CREEK, A BRANCH OF WESTERN NATIONAL BANK as Trustee By: /S/KENNETH B. BUCKIUS -------------------------------------Kenneth B. Buckius Senior Vice President By: /S/PHILIP MUNISHOR -------------------------------------Philip Munishor Senior Trust Officer Attest: /S/LEIGH LUTZ --------------------------------- 26 EXHIBIT A FORM OF NOTE (Please see Attached) EXHIBIT 10.15 SECURITY AGREEMENT THIS SECURITY AGREEMENT (this "SECURITY AGREEMENT") dated August 29, 2003 is entered into by and between Streicher Mobile Fueling, Inc. ("Company"), a Florida corporation having its principal place of business at 800 W. Cypress Creek Road, Suite 580, Fort Lauderdale, Florida 33309, and The Bank of Cherry Creek, a Branch of Western National Bank, a Colorado corporation, located at 3033 East 1st Avenue, Denver, CO 80206 (the "Trustee"), as indenture trustee for the holders (the "HOLDERS") of certain promissory notes issued by Company to Holders due August 28, 2008, (as amended, supplemented or otherwise modified from time to time, the "NOTES") pursuant to an indenture between Company and Trustee of even date herewith (the "INDENTURE"). WHEREAS, Company wishes to grant to the Trustee, for the benefit of Holders, a first priority security interest in Company's specialized fueling truck fleet and related equipment (the "VEHICLES") and other property of Company to secure the Notes, and WHEREAS, Company and Congress Financial Corporation (Florida) ("Congress") are parties to that certain Loan and Security Agreement by and between Company and Congress, dated September 26, 2002, as amended (as it may be amended from time to time, the "CONGRESS AGREEMENT") and, along with certain other persons, a Subordination Agreement effective as of January 21, 2003 (the "SUBORDINATION AGREEMENT"); and WHEREAS, in the Congress Agreement, Company previously assigned to Congress a security interest in certain patents (the "PATENTS") relating to the Vehicles as additional security for the amounts owed by Company to Congress under the Congress Agreement, but Congress and Company have entered into an amendment to the Congress Agreement, which includes a release of Congress' security interest in the Patents so that the Patents can be assigned to Holders as part of the collateral for the Notes. 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 the laws of the State of Florida (or any other jurisdiction whose laws are mandatorily applicable notwithstanding the parties' choice of Florida law) or the laws of the United States of America, whichever laws allow the greater interest, 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 New York, New York. EVENT OF DEFAULT shall mean any event specified in SECTION 6 hereof. GAAP shall mean generally accepted accounting principles in the United States of America, as in effect from time to time. LOAN DOCUMENTS shall mean, collectively, this Security Agreement, the Securities Purchase Agreement between Holders and Company of even date herewith (the "SECURITIES PURCHASE AGREEMENT") evidencing the sale of the Notes and the Stock Purchase Warrants (the "WARRANTS") by Company to Holders, 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, prospects, 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, prospects, 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 Note and under this Security Agreement, whether on account of principal, interest, indemnities, fees (including, without limitation, attorneys' fees, remarketing 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. SECTION 2. CREATION OF SECURITY INTEREST; COLLATERAL. Company hereby assigns and grants to Holders a continuing general, first priority lien on and security interest in, all Company's right, title and interest in and to the collateral described in the next sentence (the "COLLATERAL") to secure the payment and performance of all the Obligations. The Collateral consists of (i) the Vehicles, as listed on SCHEDULE A hereto, 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) the Patents. SECTION 3. COMPANY'S REPRESENTATIONS AND WARRANTIES. SECTION 3.1 GOOD STANDING; QUALIFIED TO DO BUSINESS. Company (i) is a duly organized, validly existing, corporation in good standing under the laws of the State of Florida, (ii) 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 (iii) 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 (a) Company, (b) Company's ability to perform its obligations under the Loan Documents or (c) the rights of Holders or the Trustee under this Agreement. SECTION 3.2 DUE EXECUTION, ETC. The execution, delivery and performance by Company of each of the Loan Documents to which it is a party are within the powers of 2 Company, do not contravene the Articles of Incorporation or Bylaws of Company, 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 Congress. 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 Company enforceable against Company in accordance with its terms. SECTION 3.3 SOLVENCY; NO LIENS. On the date hereof, Company 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; and Company is, or will be at the time such Collateral is acquired by it, the absolute owner of the Collateral 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. 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 LOCATIONS. On the date hereof, each item of the Collateral is located or based at the place of business specified for such item in SCHEDULE A 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. 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. 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. 3 SECTION 3.10 IDENTIFYING NUMBERS. SCHEDULE A hereto sets forth the true and correct model number and serial number, vehicle identification number or other identifying number 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 profitable conduct of its business, (iii) continue in the same general lines of business as those 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 such notices as required by the Indenture and the Notes. 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 4 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. If Company is in default, and unless Trustee shall otherwise agree with Company in writing, Trustee shall 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. SECTION 4.7 NO CHANGE OF LOCATION, STRUCTURE OR IDENTITY. Company will not (i) change the location of its principal place of business or establish any place of business other than those specified herein or (ii) move or permit the movement of any Collateral from the location specified in SCHEDULE A hereto, except that Company may change its principal place of business and keep Collateral at other locations within the United States provided that 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 Collateral consisting of motor vehicles or rolling stock at any location in the United States provided that Holder's 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 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. 5 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), mark 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, 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 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. 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, and Company will not sell, transfer, assign, pledge, collaterally assign, exchange or otherwise dispose of any of the Collateral. 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. SECTION 4.11 NO LIMITATION ON HOLDERS' 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. SECTION 4.12 PROTECTION OF COLLATERAL. Trustee, upon three (3) business days' notification to Company (except after an Event of Default) shall have the right at any time to make any payments and do any other acts Trustee may deem necessary to protect Holders' security interests 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 6 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. SECTION 4.13 DELIVERY OF ITEMS. Company will promptly (but in no event later than three (3) Business Days) after its 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, 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 Company and its consolidated subsidiaries, the consolidated balance sheet, income statement and statements of cash flows and shareholders equity for Company 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 Company and its consolidated subsidiaries, the Financial Statements for such fiscal quarter, together with a certification duly executed by a responsible officer of Company 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; 7 (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; (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; 8 (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 (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: (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 6(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 Congress (unless (i) there are no amounts then owed to Congress under the Congress Agreement and (ii) the Congress 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 Congress (unless (i) there are no amounts then owed to Congress under the Congress Agreement and (ii) the Congress 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 Uniform Commercial Code (the "CODE") whether or not the Code applies to the affected Collateral and also may (i) require Company to, and Company hereby agrees that it will at its 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 patties 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 9 other terms as Trustee, on behalf of Holders, may deem commercially reasonable. Trustee agrees to provide at least ten (10) days' notice to Congress 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 (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 Congress unless (i) there are no amounts then owed to Congress under the Congress Agreement and (ii) the Congress Agreement has been terminated, in which case such surplus will be paid over to the 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 Stock Purchase Agreement or to such other address as shall be designated by Holder to Company in writing, and (iii) if to Company, to the address 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 or this Security Agreement or any interest therein. Holders 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, PROVIDED, HOWEVER, that Trustee shall not consent to any such amendment without the prior written consent of a majority of the Holders, and shall bind and benefit 10 Company and Holders and their respective successors and assigns, subject, in the case of Company, to the first sentence of SECTION 8.3 hereof. SECTION 9.5 INTERPRETATION OF AGREEMENT. Time is of the essence in each provision of this Security Agreement of which time is an element. All terms not defined herein or in the Notes shall have the meaning set forth in the applicable Code, except where the context otherwise requires. 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 9.6 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 Company and its 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 9.7 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 Company or upon the appointment of any receiver, intervenor, conservator, trustee or similar official for Company or any substantial part of its assets, or otherwise, all as though such payments had not been made. SECTION 9.8 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 9.9 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 9.10 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 FLORIDA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. SECTION 9.11 VENUE; SERVICE OF PROCESS. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER 11 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 9.12 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 9.13 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 9.14 ENTIRE AGREEMENT. Company, Trustee and Holders agree that this Security Agreement and the Schedule(s) 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 9.15 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. 12 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. COMPANY STREICHER MOBILE FUELING, INC. By: /S/RICHARD E. GATHRIGHT --------------------------------------Richard E. Gathright President and Chief Executive Officer FED ID NO. 65-0707824 TRUSTEE THE BANK OF CHERRY CREEK, A BRANCH OF WESTERN NATIONAL BANK By: /S/KENNETH B. BUCKIUS -------------------------------------Kenneth B. Buckius Senior Vice President By: /S/PHILIP MUNISHOR -------------------------------------Philip Munishor Senior Trust Officer FED ID NO. 84-0532189 13 EXHIBIT 23.1 Independent Auditors' Consent The Board of Directors Streicher Mobile Fueling, Inc.: We consent to the incorporation by reference in the registration statement on Forms S-8 (File Nos. 333-84275, 333-79801, and 333-61764) and S-3 (File Nos. 333-30950, 333-30952, 333-84273, and 333-61762) of Streicher Mobile Fueling, Inc. and subsidiaries, of our report dated September 30, 2003, with respect to the consolidated balance sheets of Streicher Mobile Fueling, Inc. and subsidiaries as of June 30, 2003 and 2002, and the related consolidated statements of operations, shareholders' equity and cash flows for the years ended June 30, 2003 and 2002, the five-month transition period ended June 30, 2001, and the year ended January 31, 2001. KPMG LLP Fort Lauderdale, Florida October 3, 2003 EXHIBIT 31.1 CERTIFICATIONS I, Richard E. Gathright, certify that: 1. I have reviewed this annual report on Form 10-K of Streicher Mobile Fueling, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal controls over financial reporting that occurred during the registrant's fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: October 3, 2003 /S/ RICHARD E. GATHRIGHT ------------------------------------Richard E. Gathright President and Chief Executive Officer EXHIBIT 31.2 CERTIFICATIONS I, Michael S. Shore, certify that: 1. I have reviewed this annual report on Form 10-K of Streicher Mobile Fueling, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal controls over financial reporting that occurred during the registrant's fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: October 3, 2003 /S/ MICHAEL S. SHORE ------------------------------------------------Michael S. Shore Senior Vice President and Chief Financial Officer EXHIBIT 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Streicher Mobile Fueling, Inc. (the "Company") on Form 10-K for the fiscal year ended June 30, 2003, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), each of the undersigned hereby certifies, pursuant to 18 U.S.C. ss.1350, as adopted pursuant to ss. 906 of the Sarbanes-Oxley Act of 2002, that: (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. A signed original of this written statement required by Section 906 has been provided to Streicher Mobile Fueling, Inc. and will be retained by Streicher Mobile Fueling, Inc. and furnished to the Securities and Exchange commission or its staff upon request. /S/ RICHARD E. GATHRIGHT -----------------------------------------------Richard E. Gathright President and Chief Executive Officer October 3, 2003 /S/ MICHAEL S. SHORE -----------------------------------------------Michael S. Shore Senior Vice President and Chief Financial Officer October 3, 2003
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