Exhibit 10.48
FIRST AMENDMENT TO MODIFIED LOAN AGREEMENT
AND FIRST AMENDMENT TO NOTE
THIS FIRST AMENDMENT TO MODIFIED LOAN AGREEMENT AND FIRST
AMENDMENT TO NOTE (the "Amendment") is made and entered into to be effective as
of May 23, 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 April 30, 2002, the Borrower and the Lender entered into
that certain Modified Loan Agreement (the "Loan Agreement") pursuant to which
the Lender agreed to lend to the Borrower up to $6,000,000 subject to the terms
and conditions contained therein. The borrowings under the Loan Agreement were
evidenced further by that certain Note in the original principal amount of
$6,000,000 executed by the Borrower in favor of the Lender on April 30, 2002
(the "Note").
B. The Court has this day issued in the Lender Case a Final
Order Authorizing Extension of Debtor's Obligations under a Modified Loan
Agreement with Xxxxxx Chemicals and Plastics Operating Limited Partnership
Through June 30, 2002 (the "Order") authorizing the extension of the maturity
date under the Loan Agreement until June 30, 2002 and the reduction of the
Commitment to $4,500,000.
C. The Borrower and the Lender mutually wish to amend the Loan
Agreement, according to the terms and conditions hereinafter set forth.
Agreement
1. Definitions. All capitalized terms used herein which are
defined in the Loan Agreement shall have the same meanings when used herein.
2. Amendments to the Loan Agreement and Note. As of the date
hereof, the Loan Agreement shall be and hereby is amended and modified as
follows:
a. The definition of "Maturity Date" contained in Section
1.1 of the Loan Agreement is hereby modified to delete therefrom the
phrase "May 23, 2002" and replace it with the phrase "June 30, 2002".
b. All references in the Loan Agreement and the Note to
"Six Million Dollars" and "$6,000,000" are hereby deleted and replaced
with "Four Million Five Hundred Thousand Dollars" and "$4,500,000",
respectively.
c. Section 2.1 of the Loan Agreement is hereby amended (i)
by deleting therefrom the phrase ", subject to the sublimits set forth
in this Section 2.1" from the first sentence, (ii) by deleting the
phrase "May 23, 2002" and replacing it with "June 30, 2002" and (iii)
by deleting all words appearing after the semi-colon in the second
sentence.
d. Exhibit B to the Loan Agreement is hereby amended to
delete paragraph 4 therefrom.
3. Confirmation and Ratification. Except as specifically
modified and amended pursuant to the terms hereof, the Loan Agreement remains
unchanged and in full force and effect as written. The parties hereto hereby
ratify and confirm in all respects, as of the date hereof, all of the terms,
conditions, representations, warranties, covenants and provisions contained
therein, as modified and amended hereby, and the Borrower hereby confirms and
ratifies in all respects all of the Obligations.
4. No Default. The Borrower hereby ratifies and confirms that
there are no Defaults or Events of Default which have occurred and are
continuing as of the date hereof.
5. Governing Law. This Amendment, and the rights and
obligations of the parties hereunder, 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 Amendment and the
forum for any action relating hereto shall be the Court.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment 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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