Exhibit 10.22.3.1
XXXXXX AND CONSENT
AND
FIRST AMENDMENT
TO
7% SENIOR SECURED CONVERTIBLE NOTE,
DUE NOVEMBER 29, 2004
THIS FIRST AMENDMENT TO 7% SENIOR SECURED CONVERTIBLE NOTE, DUE
NOVEMBER 29, 2004 (the "Amendment"), dated as of February 15, 2002, is entered
into by and among Probex Fluids Recovery, Inc., a Delaware corporation (the
"Company"), Probex Corp., a Delaware corporation ("Probex"), and ___________
("Payee"), as nominee for _________________ ("Owner"). Terms with initial
capital letters that are used herein but not otherwise defined herein shall have
the meanings given to such terms in the Note Purchase Agreement, dated as of
November 29, 2000, by and among the Company, Probex, the purchasers named
therein and Wilmington Trust Company, as collateral agent, and amended by that
certain First Amendment to Note Purchase Agreement, dated as of July 5, 2001
(collectively, the "NPA").
WITNESSETH:
WHEREAS, the Company and Probex. executed that certain 7% Senior
Secured Convertible Note, Due November 29, 2004 made payable to Payee in the
original principal amount of $_________ (the "Original Note");
WHEREAS, the Company, Probex and Payee, by being the registered owner
of the Original Note, are parties to the NPA;
WHEREAS, Probex did not secure equity commitments for financing for its
working capital and debt and equity financing or other arrangement for the
construction of an initial facility using Probex proprietary technology on or
prior to September 30, 2001, as contemplated by Section 10(e) of the NPA;
WHEREAS, the parties hereto desire to amend the Original Note to the
extent provided below;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
A. Amendments to the Original Note. The Original Note is hereby amended
as follows:
1. The first two sentences of Section 3.1 of the Original Note
are deleted in their entirety and replaced with the following two
sentences:
"3.1. In order to prevent dilution of the right granted hereunder, the
Conversion Price shall be subject to adjustment from time to time in accordance
with this Section 3. At any given time the Conversion Price, whether as the
initial Conversion Price ($1.40 per share) or as last adjusted, shall be the
lesser of: (i) the Conversion Price otherwise computed under this Section 3 and
(ii) that dollar (or part of a dollar) amount the payment of which shall be
sufficient at the given time to acquire one share of Probex Common Stock (as
presently constituted) upon conversion of the Conversion Amount based on the
lowest price per share Probex has issued shares of Probex Common Stock after the
date hereof or at which any other securities issued after the date hereof are
then convertible into such common stock, in each case as adjusted for any stock
dividends, stock splits, recapitalizations or other similar events affecting the
Probex Common Stock; provided, however, immediately after the consummation of
the equity portion of the project financing for the construction of an initial
facility using Probex proprietary technology described in Section 10(e) of the
NPA, no further reduction of the Conversion Price shall made under this Section
3.1(ii)."
B. Waiver. The Payee hereby waives the default under the Original Note
arising from an Event of Default under Section 10(e) of the NPA, provided such
Event of Default is cured on or before June 30, 2002.
C. Miscellaneous.
1. Except as specifically provided herein, the Original Note and the
NPA shall remain in full force and effect. Notwithstanding anything contained
herein to the contrary, the Guaranty of the Original Note made by Probex
pursuant to that certain Guaranty Agreement, dated as of November 29, 2000, and
all liens, mortgages, pledges and other security interests and guarantees of
every kind securing the Original Note shall remain in full force and effect and
continue to secure and guarantee the Original Note as amended by this Amendment.
2. This Amendment shall not be effective unless and until the Company
and Probex have received, on or prior to March 1, 2002, an executed amendment
identical to this Amendment (except for the name of Payee and principal amount
of the Original Note) from each of the other holders of the 7% Senior Secured
Convertible Notes, Due November 29, 2004 (the "Notes") that, when taken together
with principal amount the Original Note, amend not less than $11.5 million
aggregate principal amount of the Notes outstanding. Probex and the Company
agree to promptly offer each Holder of any of the Notes an opportunity to
execute such an amendment and to promptly send the Payee copies of each such
amendment executed.
3. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Probex Fluids Recovery, Inc., Probex Corp. and
Payee have caused this Agreement to be duly executed and delivered by its duly
authorized officer as of the date first above written.
PROBEX FLUIDS RECOVERY, INC.
By:_____________________________________
Its:____________________________________
PROBEX CORP.
By:_____________________________________
Its:____________________________________
OWNER:
By:_____________________________________
Name:___________________________________
Its:____________________________________
