Exhibit 10.47
MODIFIED LOAN AGREEMENT
THIS MODIFIED LOAN AGREEMENT (the "Agreement") is made and
entered into to be effective as of April 30, 2002, by and between XXXXXX
CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership, in its capacity as debtor-in-possession under that certain Chapter
11 bankruptcy case filed as Case No. 01-1268 (the "Case") filed on April 3, 2001
with the United States Bankruptcy Court for the District of Delaware (the
"Court") (the "Borrower"), and BCP MANAGEMENT, INC., a Delaware corporation, in
its capacity as debtor-in-possession under that certain Chapter 11 bankruptcy
case filed as Case No. 02-10875 (the "Lender Case") filed on March 22, 2002 with
the Court (the "Lender"). For valuable consideration, the receipt, sufficiency
and adequacy of which are hereby acknowledged, the Borrower and the Lender,
intending to be legally bound, hereby recite and agree as follows:
Recitals
A. On January 14, 2002, the Borrower and the Lender entered
into that certain Loan Agreement (as amended by that certain First Amendment to
Loan Agreement dated March 29, 2002, the "Original Loan Agreement") pursuant to
which the Lender agreed to lend to the Borrower up to $10,000,000, subject to
the terms and conditions contained therein. The borrowings under the Original
Loan Agreement were evidenced further by that certain Note in the original
principal amount of $10,000,000 executed by the Borrower in favor of the Lender
on January 14, 2002 (the "Original Note"). The Original Loan Agreement and the
Original Note provided secondary financing subordinate to that certain
$100,000,000 Loan and Security Agreement dated March 31, 2000, by and among the
Borrower, Fleet Capital Corporation, as agent for the various Lenders party
thereto, and the various Lenders party thereto, as the same was subsequently
amended prior to the filing of the Case, and as the same was modified subsequent
to the filing of the Case by that certain Agreed Final Order Authorizing Debtor:
(A) To Use Cash Collateral; (B) To Incur Post-Petition Debt; and (C) To Grant
Adequate Protection And Provide Security To Fleet Capital Corporation, As Agent,
which was issued by the Court on July 11, 2001 and by the Interim Orders (as
defined therein) (as so amended and modified and as amended or extended by
subsequent orders of the Court, the "Fleet DIP Facility").
B. In April, 2002, the Borrower paid the Fleet DIP Facility in
full.
C. As of April 24, 2002, there were no borrowings outstanding
under the Original Loan Agreement, although there may be borrowings before April
30, 2002.
D. The Borrower has requested that the Lender continue to
provide the Borrower with a credit facility of up to $6,000,000, subject to
potential increase after May 23, 2002, as described more fully herein.
E. On or about April 24, 2002, the Borrower, as a debtor and
debtor-in-possession, and the other debtor and debtor-in-possession in the Case,
filed with the Court their Motion of Debtor and Debtor-in-Possession for
Authority to Extend Obligations of Xxxxxx Chemicals and Plastics Operating
Limited Partnership Under Modified Loan Agreement with BCP Management, Inc. (the
"Debtor Motion"). After a hearing on April 24, 2002, the Court entered that
certain Borrower Bridge DIP Order (the "Borrower Bridge DIP Order"). This
Agreement is the Loan Agreement defined in the Borrower
Bridge DIP Order. A final order approving this Agreement is contemplated
following a final hearing, which is currently scheduled to be held on May 23,
2002.
G. On April 24, 2002, the Lender, as a debtor and
debtor-in-possession in the Lender Case filed with the Court its Motion of
Debtor for Entry of Interim and Final Orders Authorizing an Extension of Its
Obligations Under a Modified Loan Agreement with Xxxxxx Chemicals and Plastics
Operating Limited Partnership (the "Lender Motion"). After a hearing on April
24, 2002, the Court entered that certain Lender Bridge DIP Order (the "Lender
Bridge DIP Order"). This Agreement is the Modified Loan Agreement defined in the
Lender Bridge DIP Order. A final order approving this Agreement is contemplated
following the Final Hearing (as defined in the Lender Bridge DIP Order), which
is currently scheduled to be held on May 23, 2002. At such Final Hearing, the
Lender intends to request that the Maturity Date (as defined herein) be extended
until June 30, 2002 and that the Commitment (as defined herein) be increased
commensurate with the Borrower's projected cash needs between May 23, 2002 and
June 30, 2002 (the "Extension and Increase Request").
H. Based upon the foregoing, the Lender has agreed to extend
the foregoing credit to the Borrower upon the terms and conditions hereinafter
set forth.
Agreement
SECTION 1. DEFINITIONS
1.1 Defined Terms. In addition to the other terms defined
herein, the terms set forth below shall have the meanings indicated below.
Borrowing means a borrowing hereunder consisting of any Loan
or Loans made to the Borrower by the Lender.
Borrowing Date means any Business Day upon which a Borrowing
occurs.
Business Day means a day other than a Saturday, Sunday or
other day on which commercial banks in Ohio are authorized or required by law to
close. Periods of days referred to in this Agreement shall be counted in
calendar days unless Business Days are expressly prescribed.
Code means U.S.C. Title 11, as amended from time to time.
Commitment means the commitment of the Lender to make Loans to
the Borrower pursuant to Section 2.1 hereof in the amounts referred to therein,
as such commitment may be terminated pursuant to Section 2.4 hereof.
Commitment Period means the period from and including the date
on which the conditions to the initial Loans under Section 3 hereof have been
satisfied or waived to but excluding the Maturity Date.
Default means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
Default Rate means 2.0% per annum plus the non-default
interest rate otherwise payable hereunder.
Dollars and "$" means dollars in lawful currency of the United
States of America.
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Employee Expenses has the meaning set forth in Section 2.1
hereof.
Event(s) of Default has the meaning set forth in Section 4
hereof.
Excess Cash Flow means all cash received by the Borrower,
regardless of source, on any calendar day, which cash is not necessary to make a
payment reasonably estimated by the Borrower to be payable on the following
Business Day. Notwithstanding the foregoing, an aggregate maximum amount of
$500,000 may be maintained by the Borrower at all times across its various bank
accounts, in order to comply with certain minimum balance requirements and for
other immediate cash needs, and cash received into such bank accounts shall not
constitute "Excess Cash Flow" hereunder to the extent that the Borrower's bank
accounts have an aggregate balance below such amount.
Loan Documents means this Agreement, the Note, and all other
written agreements, instruments, certificates, and documents, and all other
writings which are now or hereafter executed by or on behalf of the Borrower and
delivered to the Lender in connection with or as related to this Agreement or
the transactions arising herefrom, and as now in effect or as at any time
hereafter amended, modified, supplemented or restated.
Loans has the meaning set forth in Section 2.1 hereof.
Maturity Date means the earliest of (a) any conversion of the
Borrower's Chapter 11 case to Chapter 7, (b) May 23, 2002, (c) such earlier date
as the Lender's obligation to make Loans hereunder shall otherwise terminate as
provided herein, (d) the date of the confirmation of a plan of reorganization
under the Case or (e) the date upon which the sale of substantially all of the
Borrower's assets has been completed.
Note has the meaning set forth in Section 2.2(a) hereof.
Obligations means, as of any date, the Loans, and all debts,
liabilities, covenants, duties, obligations of, and amounts owing from, the
Borrower to the Lender of every kind and description arising out of or in
connection with the Loan Documents, howsoever arising, whether now in existence
or hereafter incurred or arising, absolute or contingent, joint or several,
matured or unmatured, direct or indirect, and all interest, charges and
expenses.
Ordinary Expenses has the meaning set forth in Section 2.1
hereof.
Payment Date means the first day of each calendar month after
the date hereof.
Responsible Officer means, as to the Borrower, the President,
Chief Executive Officer, Chief Financial Officer or Senior Vice President -
Commercial of such entity.
1.2 Other Definitional Provisions. Unless otherwise
specified,
(a) All terms defined in this Agreement have the defined
meanings provided herein when used herein, in the Note, or in any other Loan
Documents, or any other certificate, instrument or other document made or
delivered pursuant hereto or thereto, unless otherwise defined therein. The
definition of any document or instrument includes all schedules, attachments and
exhibits thereto and all renewals, extensions, supplements, restatements and
amendments thereof.
(b) "Hereunder," "herein," "hereto," "this Agreement"
and words of similar import refer to this entire document; "including" is used
by way of illustration and not by way of
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limitation, unless the context clearly indicates the contrary; the singular
includes the plural and conversely, and any action required to be taken by the
Borrower is to be taken promptly, unless the context clearly indicates the
contrary.
SECTION 2. AMOUNT AND TERMS OF COMMITMENT
2.1 Commitment. Subject to the terms and conditions of this
Agreement, the Lender agrees to make or continue to make loans to the Borrower
from time to time during the Commitment Period in an aggregate principal amount
at any one time outstanding not to exceed the aggregate amount of $6,000,000,
subject to the sublimits set forth in this Section 2.1. The Borrower shall use
the proceeds of loans made pursuant to the Commitment for ordinary and necessary
business expenses ("Ordinary Business Expenses"), and payroll and other employee
expenses, including severance benefits that may become due on or before May 23,
2002 ("Employee Expenses"); provided, that the Borrower may not borrow an
aggregate principal amount that exceeds $1,500,000 for Ordinary Business
Expenses and $4,500,000 for Employee Expenses, and provided further that in the
sole discretion of the Lender, the $1,500,000 Business Expenses sublimit may be
increased and the $4,500,000 Employee Expenses sublimit decreased as Borrower
pays or makes provision for payment of the Employee Expenses of Borrower. So
long as no Default or Event of Default then exists, the Borrower may use the
Commitment by borrowing, repaying the loans made thereunder in whole or in part,
and reborrowing such loans, all in accordance with the terms and conditions set
forth herein. The loans made to the Borrower by the Lender pursuant to this
Section 2.1 shall be referred to herein as "Loans".
2.2 Notes.
(a) The Loans made by the Lender pursuant to Section 2.1
hereof shall be evidenced by a promissory note in the form of Exhibit A hereto
made by the Borrower payable to the order of the Lender in the original
principal amount of $6,000,000 (the "Note"). The Note shall evidence the
obligations of the Borrower to pay the Lender, or any subsequent holder(s) of
the Note, the aggregate unpaid principal amount of the Loans made by the Lender
and evidenced thereby, together with interest thereon as prescribed herein.
(b) The Note shall (i) be dated as of the date hereof, (ii) be
stated to mature, with respect to the aggregate principal amount of all of the
Loans evidenced thereby, on the Maturity Date, and (iii) bear interest for the
period from the date thereof on the unpaid principal amounts of each of the
Loans from time to time outstanding at the applicable interest rates per annum
determined as provided herein. Interest on the unpaid principal balances of each
of the Loans evidenced by the Note shall be payable as specified herein.
2.3 Procedure for Borrowing. The Borrower may borrow under the
Commitment during the Commitment Period on any Business Day. Notices by the
Borrower to the Lender of Borrowings of Loans shall be irrevocable and shall be
effective only if received by the Lender not later than 11:00 a.m., Ohio time,
on the day of such Borrowing. Each such notice of Borrowing shall specify the
aggregate amount of the requested Borrowing, the requested Borrowing Date (which
shall be a Business Day), the location and number of the Borrower's account to
which funds are to be disbursed and shall include with such notice a
fully-completed and executed certificate of a Responsible Officer substantially
in the form of Exhibit B attached hereto. The Lender shall make funds available
to the Borrower, subject to the satisfaction of the terms and conditions of this
Agreement, including subsection 3.2(d), by transferring immediately available
funds to the Borrower's account in the amount of any such Borrowing on the
requested date of Borrowing.
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2.4 Termination of Commitment Period. Unless earlier
terminated pursuant to the terms of this Agreement, the Commitment shall,
without notice to the Borrower, terminate at close of business on the last day
of the Commitment Period.
2.5 Repayment of Loans. The Borrower hereby promises to pay
the outstanding principal amount of any Loans and any other Obligations
outstanding in full on the Maturity Date.
2.6 Prepayments of Loans. The Borrower shall prepay the Loans,
in whole or in part, as applicable, with all Excess Cash Flow, on or prior to
the date(s) that is/are the Business Day immediately following the date such
Excess Cash Flow is received by the Borrower. In the case of any prepayment
hereunder, whether in part or in full, the payment received shall be applied in
the order set forth in the Note.
2.7 Interest Rates; Computation.
(a) The Borrower hereby promises to pay to the Lender
interest on the unpaid principal amount of each Loan made by the Lender for the
period from and including the date of such Loan to but excluding the date such
Loan shall be paid in full, at a fluctuating rate of interest equal to the
Alternate Base Rate (as such term was defined in the Fleet DIP Facility) plus
2.75%. Notwithstanding the foregoing, the Borrower hereby promises to pay to the
Lender (upon written notification from the Lender) interest at the applicable
Default Rate:
(i) on any principal of any Loan or any other Obligation
that shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date
thereof to but excluding the date the same is paid in full; and
(ii) during any period when any Event of Default shall
have occurred and for so long as such Event of Default shall be
continuing.
(b) Accrued and unpaid interest on each Loan shall be
payable monthly in arrears on each Payment Date, and upon the payment thereof,
except that interest payable at the Default Rate shall be payable from time to
time on demand.
(c) Interest on all Loans and other Obligations shall be
calculated on the basis of a 365 or 366, as appropriate, day year for the actual
number of days elapsed.
2.8 Payments.
(a) Payment of all principal of, and accrued but unpaid
interest on, the Loans shall be made not later than 12:00 Noon, Ohio time, on
the date when due, in immediately available funds, to the Lender at its address
as set forth in Section 5.2 hereof. Whenever any payment of principal of, or
interest on, the Loans shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next succeeding Business Day.
If the date for any payment of principal is extended by order of the Court,
operation of law or otherwise, interest thereon shall be payable for such
extended time period unless the Court otherwise specifies.
(b) All payments of principal and interest with respect
to Loans shall be made in Dollars without setoff or counterclaim.
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SECTION 3. CONDITIONS PRECEDENT
3.1 Conditions to Initial Loans. The obligation of the Lender
to make the initial Loans to the Borrower hereunder is subject to the full
satisfaction, in the opinion of the Lender, of the following conditions
precedent on or prior to the first Borrowing Date:
(a) This Agreement, the Note and the other Loan Documents. The
Lender shall have received this Agreement, the Note and all other Loan Documents
reasonably required by the Lender, duly executed and delivered by a Responsible
Officer of the Borrower.
(b) Approvals; Court Orders. All governmental and third-party
approvals necessary in connection with the execution of this Agreement, the
consummation of the transactions contemplated hereby, and the continuing
operations of the Borrower, including without limitation the orders of the Court
(i) in the Case, (A) that the Borrower may incur the debt contemplated by this
Agreement pursuant to Section 364(b) of the Code with the protection afforded by
Section 364(e) of the Code, (B) that such debt shall constitute the debt of the
Borrower and not a contribution of capital into the Borrower by the Lender and
(C) that the Obligations shall constitute an allowed administrative expense
under Section 503(b)(1)(A) of the Code, and (ii) in the Lender Case, that the
extension of credit and the consummation of the transactions contemplated by
this Agreement are approved, shall all have been obtained and be in full force
and effect and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the transactions
contemplated hereby.
(c) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing hereunder after giving effect to
the making of the initial Loans.
3.2 Conditions to All Loans. The obligation of the Lender to
make any Loans hereunder on any date, including without limitation the initial
Loans, is subject to the full satisfaction, in the opinion of the Lender, of the
following conditions precedent as of the Borrowing Date for such Loan:
(a) Representations and Warranties. The representations and
warranties made by the Borrower in this Agreement, any other Loan Document, or
the Original Loan Agreement, and any representations and warranties made by the
Borrower which are contained in any certificate, document or financial or other
statement or Loan Document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects on and as of
the Borrowing Date of such Loan as if made on and as of such date other than
representations and warranties that by their terms refer to a specific date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date or after
giving effect to the Loan to be made on such Borrowing Date, unless the same is
expressly waived by the Lender.
(c) No Revocation of Prior Court Orders. Except with the
written consent of the Lender, no order of the Court relating to this Agreement
shall have been revoked, rescinded, vacated or modified in any manner and there
shall be pending no motions from any party seeking such revocation, rescission,
vacation or modification.
(d) Lender's Determination of Continued Feasibility of Exit
Strategy. The Lender (i) shall have determined, in its reasonable discretion
based upon its review of such information as it may reasonably require, that the
Borrower's previously announced exit strategy remains achievable and sufficient
to indefeasibly pay in full the Obligations and all amounts senior thereto, if
any, or (ii) shall
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have determined, in its sole discretion as to any requested Borrowing, to waive
its rights under the foregoing clause (i).
Each Borrowing by the Borrower under this Agreement shall constitute
a representation and warranty by the Borrower as of the date of such Borrowing
that the conditions contained in the foregoing paragraphs (a), (b) and (c) of
this Section 3.2 have been fully satisfied.
SECTION 4. EVENTS OF DEFAULT AND REMEDIES
Upon the occurrence of any of the following events (each an "Event
of Default"):
(1) the Borrower (a) shall fail to pay any principal on
any Loan when such amount becomes due in accordance with the terms hereof; or
(b) shall fail to pay any interest on any Loan or any other Obligation within
three days of the date when such amount becomes due in accordance with the terms
hereof or thereof; or
(2) the Borrower shall (a) default in the observance or
performance of any covenant or agreement set forth in any Loan Document; (b)
fail to deliver or cause to be delivered the information, notices or other items
specified in this Agreement, or under the Note or any other Loan Document when
due; or
(3) any representation or warranty made by the Borrower
herein, in the Note, in any other Loan Document, or in the Original Loan
Agreement, or which is contained in any certificate, document or financial or
other statement or other Loan Document furnished at any time under or in
connection herewith or therewith, shall prove to have been incorrect in any
material respect on or as of the date made; or
(4) the Case is either dismissed or converted to Chapter
7 of the Code.
then, and in any such event: (i) the Lender may, by written notice to the
Borrower, declare its obligation to make Loans hereunder to be immediately
terminated, whereupon such obligation shall immediately terminate, and (ii) the
Lender may, by written notice of default to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other Obligations to be
immediately due and payable, and upon the giving of such notice of default, all
such amounts immediately shall become due and payable without further demand,
notice or protest of any kind; the giving of any such further demand, notice or
protest being hereby expressly waived by the Borrower, and all other Persons
directly or indirectly liable for the payment and/or performance of the
Obligations; and thereupon, the Lender may proceed to exercise any and all
remedies that are provided to it under this Agreement, the Note, the other Loan
Documents, applicable law or by order of the Court.
SECTION 5. MISCELLANEOUS
5.1 Amendments and Waivers. Unless prohibited from doing so by
order of the Court, the Lender and the Borrower may, from time to time, enter
into written amendments, supplements or modifications for the purpose of adding
any provisions to this Agreement, the Note or any other Loan Documents, or
changing in any manner the rights of the Lender or the Borrower hereunder or
thereunder, and the Lender may execute and deliver to the Borrower a written
instrument waiving, on such terms and conditions as the Lender may specify in
such instrument, any of the requirements of this Agreement, the Note or any
other any Loan Document, or any Default or Event of Default and its
consequences.
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5.2 Notices. All notices required or permitted hereunder shall
be in writing and shall be deemed to be properly given when personally delivered
to any officer or designated representative of the party entitled to receive the
notice, or when sent by certified or registered first class mail or nationally
recognized overnight courier, postage prepaid, by facsimile transmission (if
provided for below) or by e-mail (if provided for below), when properly
addressed or sent to the party entitled to receive such notice at the address
stated below:
If to the Borrower, to:
Xxxxxx Chemicals and Plastics Operating Limited Partnership
Highways 73 & 30
Xxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Fax: 000.000.0000
If to the Lender, to:
BCP Management, Inc.
c/x Xxxxxx, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxx, Director, Treasury Operations
e-mail: xxxxxx@xxxxxxxxxx.xxx
Either party may change its address for purposes of notice
hereunder by delivering written notice of such change to the other party.
5.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Lender, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
5.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Note.
5.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lender and their respective successors
and assigns permitted hereby. Notwithstanding the foregoing, the rights and
obligations of Borrower hereunder may not be assigned or transferred by Borrower
without the prior written consent of Lender.
5.6 Counterparts; Effective Date. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with Borrower and the Lender. This
Agreement shall become effective upon the receipt by the Lender of executed
counterparts of this Agreement by each of the parties hereto. The parties agree
that facsimile counterpart signatures shall be sufficient to bind a party
hereto.
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5.7 Governing Law. This Agreement, and the Note, and the
rights and obligations of the parties hereunder and thereunder, shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Ohio, except and only to the extent precluded by other laws of
mandatory application. Notwithstanding the foregoing, the Court shall retain
jurisdiction over this Agreement and the forum for any action relating hereto
shall be the Court.
5.8 Supersession and Headings. Except as specified in Section
5.10 hereof, this Agreement, the Notes and the other Loan Documents contain the
entire agreement between the Borrower and the Lender with respect to the subject
matter hereof, and replace any prior or contemporaneous understandings and
agreements, oral or written, between the Borrower, and the Lender with respect
to the subject matter hereof, including any commitment, oral or written, of the
Lender previously issued. No representation, warranty, modification, alteration
or agreement shall affect this Agreement, unless made in writing and executed
with the same formalities as this Agreement. The paragraph headings do not form
a part of this Agreement, but are for convenience only, and shall not limit or
affect in any way the meaning of its provisions.
5.9 No Joint Venture. The Lender, by entering into this
Agreement or by any action taken pursuant hereto, shall not be deemed to be a
partner or joint venturer with the Borrower and the Borrower hereby indemnifies
and holds the Lender harmless from and against any and all claims, demands,
losses, damages and expenses made or incurred, resulting from or arising out of
any such construction or alleged construction of any agreement between the
Borrower and the Lender, either individually or collectively.
5.10 Incorporation of Borrower Bridge DIP Order and Lender
Bridge DIP Order. The Borrower Bridge DIP Order and the Lender Bridge DIP Order
are hereby incorporated in their entirety into this Agreement by this reference.
Anything to the contrary contained in this Agreement notwithstanding, and
pursuant to the terms of the Borrower Bridge DIP Order and the Lender Bridge DIP
Order, the Commitment referenced in Section 2.1 hereof shall only be in the
amount of $6,000,000 until such time, if at all, that the Court orders the
approval of the Extension and Increase Request. Upon such order, if issued, the
Borrower shall execute such amendments and other documentation as the Lender
deems reasonable necessary to effectuate such order.
5.11 Effect of Court Orders. Subject to the terms of the
following sentence, if any provision of this Agreement or any other Loan
Document conflicts with any final or other order of the Court relating to this
Agreement or any other order of the Court, the provisions of such order shall
control and this Agreement or such other Loan Document shall automatically,
without the execution of further documentation, be deemed modified to comply
with such order. Notwithstanding the foregoing, no order of the Court shall have
the effect of postponing the Maturity Date beyond June 30, 2002 without the
prior written consent of the Lender, which may be withheld in the Lender's sole
discretion.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
XXXXXX CHEMICALS AND PLASTICS OPERATING
LIMITED PARTNERSHIP, a Delaware limited
partnership
By: BCP Management, Inc., a Delaware
corporation, its general partner
By:______________________________________
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
BCP MANAGEMENT, INC.
a Delaware corporation
By:______________________________________
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
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Exhibit A
[Form of Note]
NOTE
$6,000,000 April 30, 2002
FOR VALUE RECEIVED, the undersigned ("Borrower") promises to
pay to the order of BCP Management, Inc., a Delaware corporation ("Lender"), at
the office of Lender, c/x Xxxxxx, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, Attn: Director, Treasury Operations, or at such other place as the holder
hereof may, from time to time, in writing designate, the principal sum of Six
Million Dollars ($6,000,000) (or so much thereof as may be disbursed to, or for
the benefit of, Borrower and remain unpaid) in lawful money of the United States
of America and in immediately available funds, together with interest and
payable at such interest rates and for such periods and in such manner, time(s)
and place(s) as are specified in the Loan Agreement hereinafter defined.
This note ("Note") is the Note identified in the Modified Loan
Agreement dated as of April 30, 2002 (as the same shall be amended, modified or
supplemented from time to time, the "Loan Agreement") between Borrower and
Lender, and the Loan Agreement is hereby incorporated into this Note and made a
part hereof. Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Loan Agreement.
Principal and interest shall be payable as set forth in the
Loan Agreement. Anything to the contrary contained herein or therein
notwithstanding, all principal, accrued but unpaid interest and other amounts
payable in connection herewith shall be due and payable in full on the Maturity
Date.
Lender's records of the principal, accrued interest and other
charges due hereunder, as well as applicable interest rates and periods are,
absent manifest error, conclusive as to and binding upon all Persons.
Upon occurrence of an Event of Default, the whole or any part
of the unpaid indebtedness evidenced hereby shall, at once or at any time
thereafter, at the option of the holder or holders hereof, become due and
payable without notice or demand therefor, the same being expressly waived. A
failure of the holder thereof to insist upon strict compliance with the terms
hereof or to assert any right hereunder shall not be a waiver of any default and
shall not be deemed to constitute a modification of the terms hereof or to
establish any claim or defense.
All payments received under the terms of this Note will be
applied by the Lender first to any sums due under this Note other than interest
and principal, second to any accrued but unpaid interest hereunder, third to any
principal due hereunder.
This Note shall bind Borrower and its successors and assigns,
and shall inure to the benefit of the Lender and its successors and assigns.
Notwithstanding the foregoing, the obligations of Borrower hereunder may not be
assigned or transferred by Borrower without the prior written consent of Lender.
No delay or omission on the part of the holder in exercising
any right hereunder shall operate as a waiver of such right or of any other
right under this Note. A waiver on any one occasion shall not be construed as a
bar to or waiver of any such right and/or remedy on any future occasion.
All persons now or hereafter liable, primarily or secondarily,
for the payment of the indebtedness evidenced hereby or any part thereof, do
hereby expressly waive presentment for payment, notice of dishonor, protest and
notice of protest, and agree that the time for payment or payments of any part
of the indebtedness evidenced hereby may be extended without releasing or
otherwise affecting their liability hereon.
Borrower agrees that the laws of the State of Ohio shall
govern its rights and duties hereunder and the construction and effect hereof.
However, if any provision hereof is or becomes invalid or unenforceable under
any law of mandatory application, it is the intent of Borrower, Lender and all
parties primarily or secondarily liable hereunder, that such provision will be
deemed severed and omitted herefrom, the remaining portions hereof to remain in
full force and effect as written.
IN WITNESS WHEREOF, Borrower has executed this Note as of the
day and year first above written.
XXXXXX CHEMICALS AND PLASTICS OPERATING
LIMITED PARTNERSHIP, a Delaware limited
partnership
By: BCP Management, Inc., a Delaware
corporation, its general partner
By:____________________________________
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
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Exhibit B
[Form of Borrowing Certificate]
[Letterhead of Xxxxxx Chemicals and
Plastics Operating Limited Partnership]
_____________________, 200_
BCP Management, Inc.
____________________
____________________
____________________
The undersigned, a Responsible Officer of Xxxxxx Chemicals and
Plastics Operating Limited Partnership, a Delaware limited partnership
("Borrower"), gives this certificate to BCP Management, Inc. ("Lender") in
accordance with the requirements of subsection 2.3 of that certain Modified Loan
Agreement dated __________, 2002 by and between Borrower and Lender (the "Loan
Agreement"). Capitalized terms used in this Certificate, unless otherwise
defined herein, shall have the meanings ascribed to them in the Loan Agreement.
1. Borrower hereby requests that Lender make a Loan to
Borrower in the amount of $________________ on _________, 200_ by wiring funds
to the following account: ___________________________________________________.
2. No Default exists on the date hereof, other than: _________
__________________________________________________ [if none, so state].
3. No Event of Default exists on the date hereof, other than
___________________________________________________________ [if none, so state].
4. As a result of this requested Borrowing, the Borrower shall
have outstanding Borrowings under the Loan Agreement in the aggregate principal
amounts of $__________ which were used for purposes of paying Employee Expenses
and $__________ which were used for purposes of paying other Ordinary Expenses.
5. All other conditions precedent to Lender's obligation to
make the requested Loan, as set forth in Section 3 of the Loan Agreement, have
been satisfied.
Very truly yours,
_________________________________
Title: __________________
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