EXHIBIT 10.34.1
LOAN EXTENSION AND MODIFICATION AGREEMENT
THIS LOAN EXTENSION AND MODIFICATION AGREEMENT (this "Agreement"), is
made as of March 29, 2002, by and among Probex Corp., a Delaware corporation
(the "Company"), and the lenders listed on Exhibit H hereto (individually, a
"Lender", and collectively, the "Lenders").
WHEREAS, the Company has outstanding $5.33 million original principal
amount of those certain promissory notes (individually, a "Note", and
collectively, the "Notes") in favor of the Lenders;
WHEREAS, the Lenders and the Company desire to further secure the
obligations under the Notes by entering into an Intercreditor and Security
Agreement (the "Security Agreement") in substantially the form attached as
Exhibit B hereto, which grants the Lenders a security interest in the Collateral
(as defined in the Security Agreement);
WHEREAS, in exchange for the additional security interest granted by
the Company to the Lenders, the Company and the Lenders desire to amend and
restate the Notes to, among other items, extend the maturity date of the Notes
until February 28, 2003 and amend certain provisions of the security agreements
to which the Lenders and the Company are currently parties, either directly or
as a result of being a holder of a Note.
NOW THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Lenders and the Company hereby agree as
follow:
1. AGREEMENT TO EXCHANGE. Subject to the terms and conditions of this Agreement,
the Lenders agree to tender their respective Notes to the Company in exchange
for the Company issuing to each Lender an amended and restated note
(individually, the "Amended Note", and collectively, the "Amended Notes") in
substantially the form attached as Exhibit I .
2. ISSUANCE OF WARRANTS. Upon tender of the Notes as provided for in Section 1
hereof, the Company shall issue to each Lender, for no additional cash
consideration but as consideration for extending the maturity date of the
Lender's Notes, a warrant (the "Warrants") to purchase that number of shares of
the Company's common stock equal to the product of (i) principal amount of the
Note and (ii) 0.35. The Warrants shall have the exercise price, be for the term
and otherwise be in substantially the form attached as Exhibit J hereto.
3. CONSENT TO LIEN; AMENDMENT TO SECURITY AGREEMENT. Pursuant to Section 3.17 of
those certain Security Agreements, dated as of September 13, 2001, July 15, 2001
and February 20,2001 (the "Existing Security Agreement"), the Lenders hereby
expressly consent to the granting of the lien and security interest pursuant to,
and the incurrence of the indebtedness contemplated by, the Existing Security
Agreement. Further, upon the execution hereof, the Existing Security Agreements
shall be amended to delete Section 3.17 thereof in their entirety.
4. PENALTY SHARES. The issuance of shares of the Company's common stock for each
month that the principal amount and accrued and unpaid interest due and payable
under the Notes shall be terminated as of the date hereof, but effective
retroactively to December 31, 2001.
5. BOARD REPRESENTATION. The Lenders and the holders of those certain
convertible promissory notes of the Company, dated as of September 7, 2001 (as
amend, modified, amended and restated, from time to time, the "September
Notes"), shall be entitled to appoint one member to the Company's board of
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directors until the Amended Notes and the September Notes are paid in full.
Pursuant to this section, the Lenders hereby appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇ as their
representative on the board of directors. In the event of ▇▇. ▇▇▇▇'▇ death,
disability, removal or resignation, and if the Amended Notes and the September
Notes are then outstanding, the Lenders shall select another individual to serve
as such representative, such person to be selected by the vote of the holders of
a majority in principal amount of the Amended Notes and September Notes
outstanding on the date of such vote.
6. REGISTRATION RIGHTS. Within sixty (60) days after completion of project
financing, whether in the form of debt or equity securities of the Company,
aggregating at least $30 million to be used to finance the construction of the
Company's first reprocessing facility, excluding the outstanding principal
balance and interest due under the Amended Notes on the date thereof (the
"Qualified Equity Financing"), the Company shall file with the U.S. Securities
and Exchange Commission ("SEC") and thereafter use commercially reasonable
efforts to become effective, a registration statement under Rule 415 of the Act,
or any similar rule that may be adopted by the SEC, covering the resale of the
shares of Common Stock issuable upon conversion of the Amended Notes and
exercise of the Warrants (the "Registration Statement"). The Company may include
in such Registration Statement other securities of the Company to be resold by
holders other than the Lenders. Except as set forth above, the rights and
obligations of Lenders with respect to the registration of shares of the
Company's common stock issuable to the Lenders upon conversion of the Amended
Notes and exercise of the Warrants shall be as set forth in that certain
Registration Rights Agreement, dated as of September 7, 2001, by and among the
Company and the parties thereto (the "Registration Rights Agreement") as if the
Lenders were a party thereto, the terms of which are hereby incorporated by
reference herein. To the extent any of the terms of the Registration Rights
Agreement shall be in conflict with the terms of this Agreement, the terms of
this Agreement shall control.
7. Miscellaneous.
7.1 Amendments. Except as specifically amended herein, the Existing
Security Agreements shall remain in full force and effect, including, without
limitation, their respective priority security interest in the collateral
described in the Existing Security Agreements.
7.2 No Waiver; Cumulative Remedies. No failure on the part of the
Lenders or the Company to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power, or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power, or privilege under this Agreement preclude any further
exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
7.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lenders and the Company and their respective heirs,
personal representatives, successors and assigns, except that the Company may
not assign any of its rights or obligations under this Agreement without the
prior written consent of the Lenders.
7.4 Amendment; Entire Agreement. THIS AGREEMENT, THE AMENDED NOTES, THE
SECURITY AGREEMENT AND THE EXISTING SECURITY AGREEMENTS, INCLUDING THE EXHIBITS
AND SCHEDULES ATTACHED HERETO AND THERETO, EMBODIES THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
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AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
The provisions of this Agreement may be amended or waived only by an instrument
in writing signed by the parties hereto.
7.5 Governing Law; Severability. This Agreement shall be enforced,
governed by and construed in accordance with the laws of the State of Texas
applicable to agreements made and to be performed entirely within such State
excepting its choice of law rules. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
hereof.
7.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
7.7 Headings. The headings, captions and arrangements used in this
Agreement are for convenience only and shall not affect the interpretation of
this Agreement.
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IN WITNESS WHEREOF, the Company and the Lenders have caused this
Agreement to be duly executed as of the day and year first above written.
COMPANY:
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PROBEX CORP.,
a Delaware corporation
Address:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By: ___________________________
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Name:
Attn: President Title:
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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LENDERS:
SIGNATURE PAGES, EXHIBITS AND SCHEDULES INTENTIONALLY OMITTED