EXHIBIT 10.29.1
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), is made as of September 7,
2001, by and between Probex Corp., a Delaware corporation (the "Company"), and
the lenders listed on Schedule A attached hereto (each a "Lender" and,
collectively, the "Lenders").
WHEREAS, the Company desires to borrow from the Lenders, and the
Lenders desire to lend to the Company the aggregate principal amount of
$3,000,000, such indebtedness to be evidenced by promissory notes in the form
attached hereto as Exhibit A (as amended, modified and restated from time to
time, the "Notes").
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 LEND. Subject to the terms and conditions of this
Agreement and the Loan Documents (as defined below), the Lenders agree to lend
to the Company $3,000,000 in aggregate principal amount and the Company agrees
to issue to each Lender (payable to the order of such Lender or its nominee, if
any, set forth on Schedule A) a Note evidencing the principal amount specified
opposite such Lender's name in Schedule A hereto at the Closing provided for in
Section 2. The obligation of each Lender shall be several and not joint and
shall be limited to the principal amount set forth opposite such Lender's name
in Schedule A hereto and no Lender shall have any obligation or any liability to
any person for the performance or non-performance by any other Lender hereunder.
2. CLOSING. The closing (the "Closing") shall occur at the offices of
Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m.,
Eastern time, on September 7, 2001 or on such other business day thereafter as
may be agreed upon by the Company and the Lenders (the "Closing Date").
(a) Closing Deliveries of the Company. At the Closing, the Company
shall deliver to the Lenders the following, all of which shall be in form and
content satisfactory to the Lenders and their counsel:
(i) Opinion. An opinion of counsel of Jenkens & Xxxxxxxxx, a
Professional Corporation, counsel to the Company, dated as of the Closing, in
the form of Exhibit D attached hereto and an opinion of counsel of Jenkens &
Xxxxxxxxx Xxxxxx Xxxxxx LLP, special counsel to the Company, dated as of the
Closing, in the form of Exhibit E attached hereto.
(ii) Notes. Each Note made payable to the persons and in the
amounts set forth in Schedule A attached hereto.
(iii) Intercreditor and Security Agreement. The Intercreditor and
Security Agreement, duly executed and delivered by the Company, in substantially
the form set forth in Exhibit B attached hereto (the "Security Agreement").
(iv) Registration Rights Agreement. The Registration Rights
Agreement, duly executed and delivered by the Company, in substantially the form
set forth in Exhibit C attached hereto (the "Registration Rights Agreement", and
together with the Security Agreement and the Notes, collectively, the "Loan
Documents").
(v) Evidence of Filing of Financing Statements. Evidence of
filing of Uniform Commercial Code financing statements with respect to the
collateral which is the subject of the Security Agreement.
(vi) Payment of Special Counsel Fees. The Company shall have paid
on or before the Closing the reasonable fees, charges and disbursements of the
Lenders' special counsel.
(b) Closing Deliveries of the Lenders. At the Closing, the Lenders
shall deliver the aggregate original principal amount of the Notes to the
Company in immediately available funds wired in accordance with the instructions
set forth on Schedule C.
3. REPRESENTATIONS OF THE COMPANY.
(a) The representations and warranties made by the Company in the
Security Agreement are as fully a part of this Agreement as if set forth herein
in full.
(b) The Company further represents and warrants to the Lenders that:
(i) The Notes are duly authorized and, when issued, will
constitute valid and binding obligations of the Company, enforceable against the
Company, in accordance with their terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and general
principles of equity and except as rights to indemnification and contribution
under the Notes as may be limited under applicable law;
(ii) The shares of the Company's common stock issuable upon
extension of the maturity date of the Notes (the "Extension Shares"), when
issued, will be duly authorized, validly issued, fully-paid and nonassessable;
and
(iii) The shares of the Company's common stock or preferred stock
issuable upon conversion of the Note (the "Conversion Shares"), when issued,
will be duly authorized, validly issued, fully-paid and nonassessable.
4. REPRESENTATIONS OF THE lendERS. Each Lender represents that it is
purchasing the Notes for its own account or for one or more separate accounts
maintained by it for the account of one or more pension or trust funds and not
with a view to the distribution thereof. Each Lender represents that it is an
"accredited investor" as that term is defined in rule 501 promulgated under the
Securities Act of 1933, as amended.
5. APPOINTMENT OF ATTORNEY-IN-FACT. The Lenders, other than United
Infrastructure Company, LLC, hereby appoint, empower and authorize Xxxxxxx
Capital Group, LLC to act as their attorney-in-fact for the sole purpose of
effecting consents, requests, waivers and amendments under and to this Agreement
and the Loan Documents.
6. Miscellaneous.
(a) 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.
(b) 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.
(c) Amendment; Entire Agreement. THIS AGREEMENT, INCLUDING THE
EXHIBITS AND SCHEDULES ATTACHED HERETO, EMBODIES THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
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.
(d) Governing Law; Severability. This Agreement shall be
enforced, governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely within such
State excepting its choice of law rules, other than Section 5-1401 of New York's
General Obligation Law. 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.
(e) 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.
(f) 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
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
LENDERS:
UNITED INFRASTRUCTURE COMPANY, LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Vice President
THE LENDERS LISTED ON SCHEDULE
B HERETO
By: Xxxxxxx Capital Group, LLC
As agent and attorney-in-fact
By: ____________________
Name: ____________________
Title: ____________________
EXHIBITS AND SCHEDULES INTENTIONALLY OMITTED.
