EXHIBIT 10.29.3
INTERCREDITOR AND SECURITY AGREEMENT
THIS INTERCREDITOR AND SECURITY AGREEMENT ("Agreement"), dated as of
September 7, 2001, is by and among Probex Corp., a Delaware corporation
("Debtor"), United Infrastructure Company, LLC, a Delaware limited liability
company (the "Collateral Agent"), and the parties listed on Exhibit A hereto
(each a "Secured Party", and, collectively, the "Secured Parties").
RECITALS:
WHEREAS, as of the date hereof, Debtor is executing and delivering to
the Secured Parties those certain Secured Promissory Notes in the original
aggregate principal amount of $3,000,000, in favor of the Secured Parties (as
amended, restated or modified, the "Notes").
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Security Interest and Pledge
Section 1.1 Security Interest and Pledge. As collateral security for
the prompt payment in full, when due, of all of the obligations, indebtedness
and liabilities of Debtor to the Secured Parties arising pursuant to or in
connection with the Notes or this Agreement, whether now existing or hereafter
arising, whether direct, indirect, fixed, contingent, liquidated, unliquidated,
joint, several, or joint and several ("Obligations"), Debtor hereby pledges and
grants to the Collateral Agent, as agent for the Secured Parties, a third
priority security interest in and to all of Debtor's right, title and interest
in and to the following property now owned or hereafter acquired (such property
being hereinafter sometimes called the "Collateral"):
(a) all accounts, accounts receivable, documents, instruments, chattel
paper, and general intangibles of Debtor and all products and proceeds thereof;
and
(b) all equipment, inventory, machinery, and fixtures of Debtor and all
accessions thereto and all products and proceeds thereof;
provided, however, the Collateral shall exclude (i) all Intellectual Property of
Debtor and its subsidiaries (for purposes of this Agreement, "Intellectual
Property" means, with respect to any entity, proprietary information, trade
secret or knowledge, including, without limitation, confidential information,
patents, trademarks, service marks, inventions, products, designs, development
techniques, methods, know-how, techniques, systems, processes, software
programs, works of authorship, formulae and any other information of a technical
nature), and (ii) all capital stock of Probex Fluids Recovery, Inc., a Delaware
corporation and the wholly-owned subsidiary of Debtor ("PFR"), evidenced by that
certain Pledge Agreement, dated as of November 29, 2000, by and between the
Debtor and Wilmington Trust Company ("WTC"), as collateral agent for the secured
parties named therein, and acknowledged by PFR.
Section 1. 2 Obligations. The Collateral shall secure the Obligations,
including, without limitation:
(a) the obligations and indebtedness of Debtor to the Secured Parties
evidenced by the Notes;
(b) all costs and expenses, including, without limitation, all
reasonable attorneys' fees and legal expenses, incurred by the Secured Parties
to preserve and maintain the Collateral, collect the Obligations herein
described, and enforce this Agreement; and
(c) all extensions, renewals and modifications of any of the foregoing.
Representations and Warranties
To induce the Secured Parties to enter into this Agreement and purchase
the Notes, except as disclosed in the disclosure schedule to this Agreement (the
"Disclosure Schedule"), attached hereto as Exhibit B, which qualifies the
following representations and warranties to the extent apparent on the face of
such disclosures, Debtor represents and warrants to the Secured Parties that:
Section 2.1 Title. Except for the first and second priority security
interests granted to the secured parties named in those certain Security
Agreements dated February 20, 2001 and July 13, 2001, respectively (the "Prior
Secured Parties"), and the security interest granted herein, Debtor owns, and
with respect to the Collateral acquired after the date hereof, Debtor will own,
the Collateral free and clear of any lien, security interest, or other
encumbrance.
Section 2.2 Accounts. As to all accounts existing on the date hereof
and whenever the security interest granted hereunder attaches to an account,
Debtor shall be deemed to have represented and warranted to the Secured Parties
as to each and all of its accounts that (i) each account is genuine and in all
respects what it purports to be, (ii) each account represents the legal, valid,
and binding obligation of the account debtor evidencing indebtedness unpaid and
owed by such account debtor arising out of the performance of labor or services
by Debtor or the sale or lease of goods by Debtor, (iii) the amount of each
account represented as owing is the correct amount actually and unconditionally
owing except for normal trade discounts granted in the ordinary course of
business, and (iv) no account is subject to any offset, counterclaim, or other
defense.
Section 2.3 Financing Statements. No financing statement, security
agreement, or other lien instrument covering all or any part of the Collateral
is on file in any public office, except as may have been filed in favor of the
collateral agents for the Prior Secured Parties, and the Collateral Agent
pursuant to this Agreement.
Section 2.4 Organization and Authority. Debtor is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware. Debtor has the corporate power and authority to execute, deliver, and
perform this Agreement, the Notes, the Loan Agreement and the Registration
Rights Agreement, and the execution, delivery, and performance of this
Agreement, the Notes, the Loan Agreement and the Registration Rights Agreement
by Debtor has been authorized by all necessary corporate action on the part of
Debtor.
Section 2.5 Principal Place of Business. The principal place of
business and chief executive office of Debtor, and the office where Debtor keeps
its books and records, is located at the address of Debtor shown beside its name
on the signature page hereof.
Section 2.6 Location of Collateral. All inventory, machinery, and
equipment of Debtor are located in Dallas County or Xxxxxx County, Texas.
Section 2.7 Capitalization. As of the date hereof, the authorized
capital stock of Debtor consists of:
(a) One Hundred Million (100,000,000) shares of common stock,
$0.001 par value per share (the "Common Stock"), of which 29,411,404 shares were
outstanding, all of which are duly authorized, validly issued, fully-paid and
non-assessable.
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(b) Ten Million (10,000,000) shares of preferred stock, $0.001
par value per share (the "Preferred Stock"), of which five hundred fifty
thousand (550,000) shares have been designated as Series A 10% Cumulative
Convertible Preferred Stock, and 532,500 of which are outstanding and are duly
authorized, validly issued, fully-paid and non-assessable.
(c) Schedule 2.7(c) of the Disclosure Schedule discloses all
outstanding options or warrants for the purchase of, or other rights to purchase
or subscribe for, or securities convertible into or exchangeable for, or
otherwise entitling the holder to acquire, Common Stock or other capital stock
of Debtor, or any contracts or commitments to issue or sell Common Stock or
other capital stock of Debtor or any such options, warrants, rights or other
securities.
(d) Debtor has duly reserved from its authorized and unissued
shares of Common Stock the full number of shares required for (a) all options,
warrants, convertible securities, exchangeable securities, and other rights to
acquire shares of Common Stock which are outstanding, and (b) all shares of
Common Stock and options and other rights to acquire shares of Common Stock
which may be issued or granted under the stock option and similar plans which
have been adopted by Debtor or any of its subsidiaries. Each outstanding class
or series of securities for which any anti-dilution adjustment will occur as a
result of the issuance and sale of the Notes, the conversion of the Notes or the
issuance of shares of Common Stock upon any extension of the Maturity Date
thereof is identified on Schedule 2.7(d) of the Disclosure Schedule attached
hereto, together with the amount of such anti-dilution adjustment for each such
class or series. The outstanding shares of Common Stock and outstanding options,
warrants and other securities entitling the holders to purchase or otherwise
acquire Common Stock have been duly authorized and validly issued. None of the
outstanding shares of Common Stock or options, warrants and other such
securities has been issued in violation of the preemptive rights of any
securityholder of Debtor. The offers and sales of the outstanding shares of
Common Stock and options, warrants and other rights to acquire Common Stock were
at all relevant times either registered under the Securities Act and applicable
state securities laws or exempt from such requirements. Except as set forth on
Schedule 2.7(d), there are no stockholders agreements, voting agreements or
other similar agreements with respect to the Common Stock to which Debtor is a
party. Except as set forth on Schedule 2.7(d), no holder of any of Debtor's
securities has any rights, "demand," "piggy-back" or otherwise, to have such
securities registered by reason of Debtor's intention to file, filing or
effectiveness of the registration statement on Form SB-2, Form S-1 or Form S-3,
if applicable, or such successor forms, registering the shares of Common Stock
for resale.
(e) Debtor has furnished to the Secured Parties true and
correct copies of Debtor's Certificate of Incorporation, as amended and in
effect on the date hereof ("Certificate of Incorporation"), and Debtor's Bylaws,
as in effect on the date hereof (the "Bylaws").
Section 2.8 SEC Documents; Financial Statements.
(a) Debtor has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and any other material reports or documents required to be
filed with the SEC. Debtor has delivered to the Secured Parties, or made
accessible to the Secured Parties, true and complete copies of documents filed
with the SEC, except for documents or portions of such documents that Debtor has
been granted or is seeking confidential treatment. As of their respective dates,
the documents filed with the SEC complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder applicable to the documents, and none of the documents
filed with the SEC, at the time they were filed with the SEC, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein, or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
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(b) As of their respective dates, the financial statements of
Debtor included in the documents filed with the SEC complied as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto. Such financial statements
have been prepared in accordance with United States generally accepted
accounting principles ("GAAP"), consistently applied, during the periods
involved (except (1) as may be otherwise indicated in such financial statements
or the notes thereto, or (2) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or summary statements)
and fairly present in all material respects, the consolidated financial position
of Debtor and its consolidated subsidiaries, as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments). The unaudited pro forma combined financial statements filed with
the SEC comply in all material respects with the requirements of Article 11 of
Regulation S-X under the Securities Act.
Section 2.9 No Conflicts. Except as set forth in Schedule 2.9 of the
Disclosure Schedule, the execution, delivery and performance of this Agreement,
the Loan Agreement, the Registration Rights Agreement and the Notes by Debtor
and the consummation by Debtor of the transactions contemplated hereby and
thereby will not (i) conflict with or result in a violation of any provision of
the Certificate of Incorporation or the Bylaws, or (ii) violate or conflict
with, or result in a breach of any provision of, or constitute a default (or an
event which with notice or lapse of time or both could become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which Debtor or any
of its subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to Debtor or any of its subsidiaries or by
which any property or asset of Debtor or any of its subsidiaries is bound or
affected. Neither Debtor nor any of its subsidiaries is in violation of its
certificate of incorporation, bylaws or other organizational documents. Except
as set forth in Schedule 2.9 of the Disclosure Schedule, neither Debtor nor any
of its subsidiaries is in default, and no event has occurred which with notice
or lapse of time or both could put Debtor or any of its subsidiaries in default,
under, and neither Debtor nor any of its subsidiaries has taken any action or
failed to take an action that would give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or other
instrument to which Debtor or any of its subsidiaries is a party or by which any
property or assets of Debtor or any of its subsidiaries is bound or affected,
except for possible defaults as would not, individually or in the aggregate,
have a Material Adverse Effect. Except as specifically contemplated by this
Agreement, the Registration Rights Agreement and as required under the
Securities Act and any applicable state securities laws, Debtor is not required
to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency or any regulatory or
regulatory agency in order for it to execute, deliver or perform any of its
obligations under this Agreement, the Loan Agreement, the Registration Rights
Agreement or the Notes in accordance with the terms hereof or thereof. All
consents, authorizations, orders, filings and registrations which Debtor is
required to obtain pursuant to the preceding sentence have been obtained or
effected on or prior to the date hereof. Debtor and its subsidiaries are unaware
of any facts or circumstances which might give rise to any of the foregoing. For
purposes of this Agreement, "Material Adverse Effect" shall mean a material
adverse effect on (i) the business, operations, affairs, financial condition,
assets or properties of Debtor or any of its subsidiaries, or (ii) the ability
of Debtor to perform the obligations under this Agreement, the Loan Agreement,
the Registration Rights Agreement or the Notes, or (iii) the validity or
enforceablity of this Agreement, the Loan Agreement, the Registration Rights
Agreement or the Notes or (d) the validity or perfection of the security
interests granted under and pursuant to this Agreement.
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Affirmative and Negative Covenants
Debtor covenants and agrees with the Secured Parties that so long as
the Notes are outstanding:
Section 3.1 Maintenance. Debtor shall maintain the Collateral in good
operating condition and repair and shall not permit any waste or destruction of
the Collateral or any part thereof. Debtor shall not use or permit the
Collateral to be used in violation of any law or inconsistently with the terms
of any policy of insurance. Debtor shall not use or permit the Collateral to be
used in any manner or for any purpose that would impair the value of the
Collateral or expose the Collateral to unusual risk.
Section 3.2 Encumbrances. Debtor shall not create, permit, or suffer to
exist, and shall defend the Collateral against, any lien, security interest, or
other encumbrance on the Collateral except the pledge and security interest of
the Prior Secured Parties and the Secured Parties hereunder, and shall defend
Debtor's rights in the Collateral and the Secured Parties' security interest in
the Collateral against the claims of all others, except the Prior Secured
Parties.
Section 3.3 Modification of Collateral. Debtor shall do nothing to
impair the rights of the Secured Parties in the Collateral. Without the prior
written consent of the Secured Parties, Debtor shall not grant any extension of
time for any payment with respect to the Collateral, or compromise, compound, or
settle any of the Collateral, or release in whole or in part any person or
entity liable for payment with respect to the Collateral, or allow any credit or
discount for payment with respect to the Collateral other than normal trade
discounts granted in the ordinary course of business, or release any lien,
security interest, or assignment securing the Collateral, or otherwise amend or
modify any of the Collateral.
Section 3.4 Sale of Collateral. Debtor shall not sell, assign, or
otherwise dispose of the Collateral or any part thereof without the prior
written consent of the Secured Parties, other than in the ordinary course of
business of Debtor and its subsidiaries.
Section 3.5 Further Assurances. At any time and from time to time, upon
the request of the Secured Parties, and at the sole expense of Debtor, Debtor
shall promptly execute and deliver all such further instruments and documents
and take such further action as the Secured Parties or the Collateral Agent may
deem reasonably necessary or desirable to preserve and perfect their security
interest in the Collateral and carry out the provisions and purposes of this
Agreement, including, without limitation, the execution and filing of such
financing statements as the Collateral Agent may require. A carbon,
photographic, or other reproduction of this Agreement or of any financing
statement covering the Collateral or any part thereof shall be sufficient as a
financing statement and may be filed as a financing statement. Debtor hereby
authorizes the Collateral Agent to file one or more financing statements,
continuation statements and amendments thereto, relating to any of the
Collateral, without the signature of Debtor; provided that Debtor shall be
provided with a copy of such statements and amendments immediately prior to the
filing or recording thereof.
Section 3.6 Risk of Loss; Insurance. Debtor shall be responsible for
any loss of or damage to the Collateral. Debtor shall maintain, with financially
sound and reputable companies, insurance policies (i) insuring the Collateral
against loss by fire, explosion, theft, and such other risks and casualties as
are customarily insured against by companies engaged in the same or similar
business, and (ii) insuring Debtor, the Prior Secured Parties and the Secured
Parties against liability for personal injury and property damage relating to
the Collateral and the operation of Debtor's business, such policies to be in
such amounts and covering such risks as are customarily insured against by
companies engaged in the same or similar business, with losses payable to
Debtor, the Prior Secured Parties and the Secured Parties as their respective
priority interests may appear. All insurance with respect to the Collateral
shall provide that no cancellation, reduction in amount, or change in coverage
thereof shall be effective unless the Secured Parties and the Collateral Agent
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have received thirty (30) days prior written notice thereof. Debtor shall
deliver to the Collateral Agent copies of all insurance policies covering the
Collateral or any part thereof upon request. In addition, Debtor shall cause
Probex Fluids Recovery, Inc., a Delaware corporation and Debtor's wholly-owned
subsidiary, to maintain insurance policies in such amounts and covering such
risks as are customarily insured against by companies engaged in the same or
similar business.
Section 3.7 Warehouse Receipts Non-Negotiable. Debtor agrees that if
any warehouse receipt, or receipt in the nature of a warehouse receipt, is
issued with respect to any of its inventory, such warehouse receipt, or receipt
in the nature thereof, shall not be "negotiable" (as such term is used in
Section 7-104 of the Uniform Commercial Code as adopted by the State of New
York).
Section 3.8 Inspection Rights. Debtor shall permit the Secured Parties
and their representatives to examine or inspect the Collateral wherever located
and to examine, inspect, and copy Debtor's books and records at any reasonable
time and as often as the Secured Parties may desire.
Section 3.9 Taxes. Debtor agrees to pay or discharge prior to
delinquency all taxes, assessments, levies, and other governmental charges
imposed on it or its property, except Debtor shall not be required to pay or
discharge any tax, assessment, levy, or other governmental charge if (i) the
amount or validity thereof is being contested by Debtor in good faith by
appropriate proceedings diligently pursued, (ii) such proceedings do not involve
any risk of sale, forfeiture, or loss of the Collateral or any interest therein,
and (iii) adequate reserves therefor have been established in conformity with
generally accepted accounting principles.
Section 3.10 Obligations. Debtor shall duly and punctually pay and
perform the Obligations.
Section 3.11 Notification. Debtor shall promptly notify the Secured
Parties and the Collateral Agent of (i) any lien, security interest,
encumbrance, or claim made or threatened against the Collateral, (ii) any
material change in the Collateral, including, without limitation, any material
damage to or loss of the Collateral, and (iii) the occurrence or existence of
any Event of Default (as defined in the Notes) or the occurrence or existence of
any condition or event that, with the giving of notice or lapse of time or both,
would be an Event of Default.
Section 3.12 Corporate Changes. Debtor shall not change its name,
identity or corporate structure. Debtor shall not change its state of
incorporation, principal place of business, chief executive office, or the place
where it keeps its books and records unless it shall have given the Secured
Parties thirty (30) days prior written notice thereof and shall have taken all
action deemed reasonably necessary or desirable by the Secured Parties to cause
the security interest in the Collateral to be perfected with the priority
required by this Agreement. Debtor shall not amend its Certificate of
Incorporation, except as necessary to effect the Qualified Equity Financing (as
defined in the Notes) and Wellsville Financing (as defined below).
Section 3.13 Books and Records. Debtor shall keep accurate and complete
books and records of the Collateral and Debtor's business and financial
condition in accordance with generally accepted accounting principles
consistently applied. Debtor shall xxxx its books and records to reflect the
security interest of the Secured Parties under this Agreement.
Section 3.14 Information. Debtor shall from time to time at the request
of the Secured Parties deliver to the Secured Parties such information regarding
the Collateral and Debtor, to the extent publicly disclosed, as the Secured
Parties may reasonably request, including, without limitation, lists and
descriptions of the Collateral and evidence of the identity and existence of the
Collateral. The Secured Parties shall have ready access to all documentation
related to the proposed Qualified Equity Financing and related to the proposed
Wellsville project debt financing ("Wellsville Financing"), either by electronic
means or such other reasonable delivery method, and the Secured Parties shall be
afforded a reasonable opportunity to comment on the Qualified Equity Financing
and Wellsville Financing documents; provided, however, Debtor shall not be
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obligated to accept any comments by the Secured Parties or, with respect to the
Wellsville Financing documents, delay the completion of such documents for the
Secured Parties' comments, if any. The Secured Parties shall have the right to
participate in meetings with Debtor's financial advisors or other third parties
related to the Qualified Equity Financing and Wellsville Financing; provided,
however, that participation in meetings other than "all hands" or comparable
meetings by the Secured Parties is subject to mutual agreement between the
Secured Parties and Debtor.
Section 3.15 Compliance with Agreements. Debtor shall comply in all
material respects with all mortgages, deeds of trust, instruments, and other
agreements binding on it or affecting its properties or business.
Section 3.16 Compliance with Laws. Debtor shall comply with all
applicable laws, rules, regulations, and orders of any court or governmental
authority.
Section 3.17 Location of Collateral. Debtor shall not move any of its
equipment, machinery, or inventory from the locations specified herein without
the prior written consent of the Collateral Agent.
Section 3.18 Intellectual Property. So long as any of the Obligations
remain outstanding, Debtor shall not create, permit, or suffer to exist, any
lien, security interest, or other encumbrance on, and shall not sell, assign, or
otherwise dispose of, the Intellectual Property, in any case, without the prior
written consent of the Secured Parties; provided, however, the foregoing shall
not limit Debtor's or its subsidiaries' ability to license or otherwise
distribute the Intellectual Property in the ordinary course of business while
retaining its ownership interest therein.
Section 3.19 Additional Indebtedness. So long as any of the Obligations
remain outstanding, neither Debtor nor any of its subsidiaries shall incur any
additional indebtedness for borrowed money, other than indebtedness of not less
than $80 million in principal amount used to finance Debtor's proposed facility
in Wellsville, Ohio, or grant any liens, mortgages or other security interests,
in each case without the prior consent of the Secured Parties.
Section 3.20 Merger; Consolidation. Debtor and each of its subsidiaries
shall not consolidate with or merge with any other entity or convey, transfer or
lease all or substantially all of its assets in a single transaction or series
of transactions to any person.
Section 3.21 Limitations on Restricted Payments. Debtor shall not, and
will not permit any of its subsidiaries to:
(a) declare or pay any dividends, either in cash or
property, on Common Stock, except (i) dividends
payable solely in shares of common stock or other
equity interests of Debtor and (ii) dividends payable
by a wholly-owned subsidiary of Debtor to Debtor or
to another wholly-owned subsidiary of Debtor; or
(b) directly or indirectly, or through any of Debtor's
subsidiaries or through any affiliate of Debtor,
purchase, redeem or retire any shares of Debtor's
capital stock of any class or other equity interests
or any warrants, rights or options to purchase or
acquire any shares of Common Stock or other equity
interests of Debtor (other than in exchange for or
out the net cash proceeds to Debtor from the
substantially concurrent issue or sale of shares of
Common Stock or other equity interests of Debtor or
warrants, rights or options to purchase or acquire
any shares of Common Stock or other equity interests
of Debtor).
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Section 3.22 Limitations on Guarantees. Except as in effect on the date
hereof, Debtor shall not guarantee or otherwise in any manner become liable in
respect of any debt or liability of any other person.
Section 3.23 Limitations on Investment. Neither Debtor nor any of its
subsidiaries shall make any investments, loans or advances to any person other
than Debtor (including, without limitation, any of Debtor's subsidiaries), other
than loans or advances to officers, directors and employees for expenses
(including moving expenses related to a transfer) incidental to and in the
ordinary course of the business of Debtor or any of its subsidiaries.
Section 3.24 Limitations on Securities Issuance. So long as the Notes
remain outstanding, upon the issuance of an aggregate of two million (2,000,000)
shares of Common Stock by Debtor from the date hereof, Debtor shall notify the
Secured Parties prior to each issuance of shares of Common Stock thereafter. So
long as the Notes remain outstanding, upon the issuance of an aggregate of five
million (5,000,000) shares of Common Stock by Debtor from the date hereof,
Debtor shall not issue any additional shares of Common Stock without the prior
written consent of the Secured Parties. For purposes of this Section 3.24,
shares of Common Stock issued in accordance with the terms of the Notes and
Debtor's securities issued to consummate the Qualified Equity Financing and
Wellsville Financing shall not be included.
Rights of Secured Parties and Debtor
Section 4.1 Power of Attorney. DEBTOR HEREBY IRREVOCABLY CONSTITUTES
AND APPOINTS THE COLLATERAL AGENT AND ANY OFFICER OR AGENT THEREOF, WITH FULL
POWER OF SUBSTITUTION, AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT WITH FULL
IRREVOCABLE POWER AND AUTHORITY IN THE PLACE AND STEAD AND IN THE NAME OF DEBTOR
OR IN ITS OWN NAME, FROM TIME TO TIME IN THE COLLATERAL AGENT'S DISCRETION, TO
TAKE ANY AND ALL ACTION AND TO EXECUTE ANY AND ALL DOCUMENTS AND INSTRUMENTS
WHICH MAY BE NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS
AGREEMENT. THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN INTEREST AND SHALL
BE IRREVOCABLE. Neither the Secured Parties, Xxxxxxx Capital Group, LLC
("Xxxxxxx") nor the Collateral Agent shall be under any duty to exercise or
withhold the exercise of any of the rights, powers, privileges, and options
expressly or implicitly granted to the Secured Parties, Xxxxxxx or the
Collateral Agent in this Agreement, and shall not be liable for any failure to
do so or any delay in doing so. Neither the Secured Parties, Xxxxxxx nor the
Collateral Agent shall be liable for any act or omission or for any error of
judgment or any mistake of fact or law in their individual capacity or in the
Collateral Agent's or Xxxxxxx'x capacity as attorney-in-fact except acts or
omissions resulting from their willful misconduct. This power of attorney is
conferred on the Collateral Agent solely to protect, preserve, and realize upon
the Secured Parties' security interest in the Collateral.
Section 4.2 Secured Parties' Duty of Care. The Collateral Agent,
Xxxxxxx and the Secured Parties shall not have any responsibility for or
obligation or duty with respect to all or any part of the Collateral or any
matter or proceeding arising out of or relating thereto, including, without
limitation, any obligation or duty to collect any sums due in respect thereof or
to protect or preserve any rights against prior parties or any other rights
pertaining thereto; it being understood and agreed that Debtor shall be
responsible for preservation of all rights in the Collateral. Without limiting
the generality of the foregoing, as against Debtor, the Collateral Agent and the
Secured Parties shall be conclusively deemed to have exercised reasonable care
in the custody of the Collateral, if the Collateral Agent or any of the Secured
Parties take such action, for purposes of preserving rights in the Collateral,
as Debtor may request in writing, but no failure or omission or delay by the
Collateral Agent or the Secured Parties in complying with any such request by
Debtor, and no refusal by the Collateral Agent or the Secured Parties to comply
with any such request by Debtor, shall be deemed to be a failure to exercise
reasonable care.
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Default
Section 5.1 Rights and Remedies. If any event of default shall occur
under either the Notes or this Agreement, the Collateral Agent and the Secured
Parties shall have all of the rights and remedies of secured parties under the
Uniform Commercial Code as in effect by the State of New York as well as any
other rights and remedies permitted under or provided by applicable law, subject
in all respects to the rights of the Prior Secured Parties.
Agreement Among Secured Parties
Section 6.1 Financing Statement. The Secured Parties together will file
one financing statement covering all of the Collateral in the name of the
Collateral Agent in order to simultaneously perfect their security interest in
the Collateral.
Section 6.2 Agreement Among Secured Parties Listed On Exhibit C. The
Secured Parties listed on Exhibit C attached hereto hereby appoint, empower and
authorize Xxxxxxx to act their attorney-in-fact for the sole purpose of
effecting consents, requests, waivers and amendments under and to this
Agreement.
Section 6.3 Agreement Among All Secured Parties. The Collateral Agent
agrees to act as collateral agent for the Secured Parties hereunder. The
Collateral Agent is hereby appointed, empowered and authorized to act as the
agent-in-fact for each Secured Party for the sole purpose of filing the
financing statements relating to the Collateral. Each Secured Party also hereby
appoints and authorizes the Collateral Agent to take such actions as agent on
its behalf as are necessary to enforce the Secured Parties rights and exercise
their powers under this Agreement; provided, however, the Collateral Agent shall
take such actions and exercise such powers only as and in the manner agreed from
time to time by the holders of two-thirds (2/3) of the aggregate principal
amount of the Notes outstanding on the date thereof; provided, further, however,
that the Collateral Agent shall not be required to take any action that is
contrary to this Agreement, the Notes or applicable law. Upon an Event of
Default (as defined in the Notes) or Events of Default, such Event of Default or
Events of Default may be waived, but only by the holders of two-thirds (2/3) of
the aggregate principal amount of the Notes outstanding on the date thereof. If
the Event of Default, or Events of Default, are not waived by the holders of
two-thirds (2/3) of the aggregate principal amount of the Notes outstanding on
the date thereof, any holder of the Notes shall have the right to accelerate all
of the Notes outstanding on the date thereof in accordance with the terms of the
Notes.
Section 6.4 Pro Rata Sharing. If one of the Secured Parties shall
obtain any payment or funds with respect to any Obligations, except as otherwise
expressly provided for herein (whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise), in excess of its pro rata share
of payments, such recipient Secured Party shall pay to each of the other Secured
Parties its pro rata share of such excess payment or funds, and each of the
Secured Parties shall reallocate such funds pro rata among all of the Secured
Parties. If all or a portion of any payment received by one of Secured Parties
with respect to any Obligations is held to constitute a preference or otherwise
recovered under the bankruptcy laws, or if for any other reason such Secured
Party is required to refund such payment or pay the amount thereof to Debtor or
any third party, each of the other Secured Parties shall pay such Secured Party
its pro rata share of such recovered payment.
Section 6.5 Enforcement. Upon enforcement and collection of the
Obligations in whole or in part under this Agreement, the Secured Parties will
share pro rata in the proceeds resulting from such collections based upon the
ratio of the amount due and owing to the Secured Parties under their respective
Notes to the aggregate amount due and owing under all of the Notes.
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Miscellaneous
Section 7.1 No Waiver; Cumulative Remedies. No failure on the part of
the Collateral Agent or any of the Secured Parties 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.
Section 7.2 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Debtor and the Secured Parties and their
respective heirs, personal representatives, successors and assigns, except that
Debtor may not assign any of its rights or obligations under this Agreement
without the prior written consent of the Secured Parties.
Section 7.3 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.
Section 7.4 Notices. All notices and other communications provided for
in this Agreement shall be given or made in writing and telecopied, mailed by
certified mail return receipt requested, or delivered to the intended recipient
at the "Address for Notices" specified beside its name on the signature pages
hereof; or, as to any party at such other address as shall be designated by such
party in a notice to the other party given in accordance with this Section.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopy, subject to
telephone confirmation of receipt, or when personally delivered or, in the case
of a mailed notice, three (3) business days after deposit in the mails, in each
case given or addressed as aforesaid.
Section 7.5 Applicable Law; Venue; Service of Process. 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.
Section 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.
Section 7.7 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 7.8 Headings; Schedules. The headings, captions and
arrangements used in this Agreement are for convenience only and shall not
affect the interpretation of this Agreement. The Disclosure Schedules and
exhibits attached hereto are as fully a part of this Agreement as if set forth
herein in full.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTOR:
PROBEX CORP.,
a Delaware corporation
Address:
00000 Xxxx Xxxx, Xxxxx 0000 By: /s/ Xxxxx X. Xxxx
Xxxxxx, Xxxxx 00000 -----------------------------------
Attn: Xxxxx X. Xxxx, CFO Name: Xxxxx X. Xxxx
Facsimile: (000) 000-0000 Title: Senior Vice President
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SECURED PARTIES:
---------------
Address: UNITED INFRASTRUCTURE COMPANY, LLC,
a Delaware limited liability company
United Infrastructure Company, LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 By: /s/ Xxxx X. Xxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ------------------------------
Attn: Chief Operating Officer Xxxx X. Xxxx
Facsimile: (000) 000-0000 Vice President
SECURED PARTIES LISTED ON EXHIBIT C
HERETO
Address: By: Xxxxxxx Capital Group, LLC,
as agent and attorney-in-fact
c/o Zesiger Capital Group, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX, 00000 By:/s/ Xxxx X. Xxxx
Attn: Xxxxxx X. Xxxxxxx ---------------------------
Facsimile: 000-000-0000 Name: Xxxx X. Xxxx
Title:
COLLATERAL AGENT:
----------------
Address: UNITED INFRASTRUCTURE COMPANY, LLC,
a Delaware limited liability company
United Infrastructure Company, LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 By: /s/ Xxxx X. Xxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 --------------------------------
Attn: Chief Operating Officer Xxxx X. Xxxx
Facsimile: (000) 000-0000 Vice President
SCHEDULES AND EXHIBITS INTENTIONALLY OMITTED.
12
