Exhibit 10.33.3.1
FIRST AMENDMENT
TO
INTERCREDITOR AND SECURITY AGREEMENT
This FIRST AMENDMENT TO INTERCREDITOR AND SECURITY AGREEMENT (this
"Amendment"), dated as of July 26, 2002, is by and among Probex Corp., a
Delaware corporation (the "Debtor"), General Conference Corporation of
Seventh-day Adventists, a District of Columbia corporation (the "Collateral
Agent"), and the signatories designated as Secured Parties hereto (the "Secured
Parties").
RECITALS:
WHEREAS, the Debtor, the Collateral Agent and the Secured Parties
previously entered into that certain Intercreditor and Security Agreement, dated
as of March 29, 2002 (the "Security Agreement"), to secure certain obligations
of the Debtor to the Secured Parties. Capitalized terms not defined herein shall
have the meanings given to such terms in the Security Agreement.
WHEREAS, the Debtor is incurring new obligations of up to $3,000,000
original principal amount that will be New Obligations, and entitled to the
benefits thereof, under the Security Agreement.
WHEREAS, the Debtor, the Collateral Agent and the Secured Parties
desire to amend certain provisions of the Security Agreement as set forth
herein.
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:
AGREEMENTS:
Section 1. Amendment to the Security Agreement.
Section 1.1 The Section titled "Certain Definitions" of the Security
Agreement shall be amended to read in its entirety as follows:
" Certain Definitions
Definitions. As used herein, the following terms have the respective
meanings set forth below or as set forth in the Section hereof following such
term:
(a) "Existing Lenders" shall have the meaning set forth in the
recitals.
(b) "Existing Notes" shall have the meaning set forth in the
recitals.
(c) "Existing Obligations" shall have the meaning set forth in the
recitals.
(d) "Existing Senior Lenders" shall mean Existing Lenders to the
extent of their respective Existing Senior Obligations.
(e) "Existing Senior Obligations" shall mean the amounts set forth
on Exhibit H hereto.
(f) "Existing Subordinated Lenders" shall mean Existing Lenders to
the extent of their respective Existing Subordinated
Obligations.
(g) "Existing Subordinated Obligations" shall mean the amounts set
forth on Exhibit I hereto.
(h) "Intellectual Property" means, on a worldwide basis,
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.
(i) "July Lenders" shall mean the lenders who are parties to that
certain Loan Agreement, dated as of July 26, 2002.
(j) "New Notes" shall have the meaning set forth in the recitals.
(k) "New Obligations" shall have the meaning set forth in the
recitals.
(l) "New Senior Lenders" shall have the meaning set forth in the
recitals.
(m) "Senior Lenders" shall mean, collectively, the New Senior
Lenders and the Existing Senior Lenders.
(n) "Senior Obligations" shall mean, collectively, the New
Obligations and the Existing Senior Obligations."
Section 1.2 Section 6.6 of the Security Agreement is hereby amended to
read in its entirety as follows:
"Section 6.6 Right of First Refusal. If the exercise of the provisions
of Section 5.1 hereof results in the sale or other disposition of the
Collateral, the Debtor and the Secured Parties hereby agree, to the extent
permitted by applicable law, that GCC shall have a right of first refusal to
acquire all or any portion of the Collateral. If GCC elects to purchase less
than all of the Collateral pursuant to foregoing sentence, the July Lenders
shall, to the extent permitted by applicable law, a right of first refusal to
acquire all or any portion of the Collateral not elected to be purchased by GCC.
If such July Lenders elect to purchase more than the remaining Collateral not
elected to be purchased by GCC, such electing July Lenders shall have the right
to purchase their respective pro rata portion (based on their respective
principal amount of New Obligations) of such Collateral not elected to be
purchased by GCC."
1.3 Exhibits H and I attached hereto shall be added to and incorporated
by reference in the Security Agreement as if set forth therein in full.
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Section 2. Miscellaneous.
Section 2.1 Except as specifically provided for herein, the Security
Agreement shall remain in full force and effect.
Section 2.2 This Amendment 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.
Section 2.3 This Amendment 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 2.4 Each of the signatories hereto that is not an original
party to the Security Agreement shall by virtue of his or her execution of this
Amendment agree to be bound by the terms of the Security Agreement and be
entitled to the benefits thereof to the same extent as if he or she executed the
Security Agreement on the date hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first written above.
DEBTOR:
PROBEX CORP.,
a Delaware corporation
Address:
00000 Xxxx Xxxx, Xxxxx 0000 By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx, Xxxxx 00000 Name: Xxxxxxx X. Xxxxxxxx
Attn: President Title: President & Chief Executive
Facsimile: (000) 000-0000 Officer
REMAINDER OF SIGNATURE PAGES, EXHIBITS AND SCHEDULES INTENTIONALLY OMITTED.
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