Exhibit 99.1
LINE OF CREDIT AGREEMENT
This Line of Credit Agreement (this "Agreement") is entered
into as of April 15, 1999 by and between New Generation Plastic, Inc., a
Delaware corporation ("NGP"), and Bachkine & Xxxxx Industries, S.A., a British
Virgin Islands corporation ("BMI").
RECITALS
WHEREAS, on April 14, 1999 BMI entered into an Asset
Contribution Agreement with SW Venture, Inc. and Xxxxx Xxxxxxxx to contribute
all of the assets and liabilities related to a proprietary process capable of
producing homogeneous, commercially usable plastic polymer end products from a
mixed virgin or recycled stream of discrete polymers or waste plastic (the "NGP
Process"), to NGP in exchange for 11,580,000 shares of NGP common stock;
WHEREAS, BMI intends for NGP to be the operating entity that
will seek the commercialization of the NGP Process and desires, subject ot the
terms of this Agreement, to make available to NGP funds from time to time as may
be necessary for NGP operations;
WHEREAS, on the terms and subject to the conditions set forth
herein, BMI hereby agrees to lend to NGP and NGP agrees to repay to BMI any
amounts so advanced under this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, BMI and NGP, for
themselves, their successors and assigns, hereby agree as follows:
ARTICLE I
LINE OF CREDIT FOR ADVANCES
Section 1.1. Advances under the Line of Credit. On the terms
and subject to the conditions of this Agreement and in the Master Promissory
Note (the "Master Note") dated of even date herewith (attached hereto as
Appendix A), BMI agrees to lend to NGP amounts that NGP shall reasonably request
from time to time, provided that BMI reserves the right to limit or discontinue
advances hereunder in its sole discretion, with or without cause. NGP hereby
promises to repay the amounts advanced hereunder on demand, provided that the
parties agree that BMI will not demand payment of the Principal Amount due
hereunder until after July 15, 2000. The facility under which the foregoing
advances are made to NGP and repaid to BMI shall be referred to herein as the
"Letter of Credit."
Section 1.2 Notice of Request for Advance. NGP shall give BMI
at least three (3) business days notice in writing specifying the amount and
purpose of each advance and the date funds are required to be received.
Section 1.3 Master Note. Each of the advances under the Line
of Credit shall be made pursuant to the Master Note. The Master Note will
initially not bear
interest, but if parties determine that the Master Note is likely to remain
outstanding for more than six months, the parties have agreed to select a
commercially reasonable rate of interest (the "Interest Rate") based on the
Prime Rate (as defined below). Once established such Interest Rate may be
adjusted by the parties from time to time to reflect any changes to the
composite Prime Rate as published in the Wall Street Journal.
ARTICLE II
MISCELLANEOUS
Section 2.1. Future Litigation and other Proceedings. In the
event that NGP (or any of its officers or directors) or BMI (or any of its
officers or directors) at any time after the date hereof initiates or becomes
subject to any litigation or other proceedings before any governmental authority
or arbitration panel with respect to which the parties have no prior agreements
(as to indemnification or otherwise), the party (and its officers and directors)
that has not initiated and is not subject to such litigation or other
proceedings shall comply, at the other party's expense, with any reasonable
requests by the other party for assistance in connection with such litigation or
other proceedings (including by way of provision of information and making
available of employees as witnesses). In the event that NGP (or any of its
officers or directors) and BMI (or any of its officers or directors) at any time
after the date hereof initiate or become subject to any litigation or other
proceedings before any governmental authority or arbitration panel with respect
to which the parties have no prior agreements (as to indemnification or
otherwise), each party (and its officers and directors) shall, at their own
expense, coordinate their strategies and actions with respect to such litigation
or other proceedings to the extent such coordination would not be detrimental to
their respective interests and shall comply, at the expense of the requesting
party, with any reasonable requests of the other party for assistance in
connection therewith (including by way of provision a information and making
available of employees as witnesses).
Section 2.2. Force Majeure.
(a) For purposes of this Section, "force majeure" means an
event beyond the control of either party, which by its nature could not have
been foreseen by such party, or if it could have been foreseen, was unavoidable,
and includes without limitation acts of God, storms, floods, riots, fires,
sabotage, civil commotion or civil unrest, interference by civil or military
authorities, acts of war (declared or undeclared) and failure of energy sources.
(b) Neither party shall be under any liability for failure to
fulfill any obligation under this Agreement, so long as and to the extent to
which the fulfillment of such obligation is prevented, frustrated, hindered, or
delayed as a consequence of circumstances of force majeure, provided always that
such party shall have exercised all due diligence to minimize to the greatest
extent possible the effect of force majeure on its obligations hereunder.
(c) Promptly on becoming aware of force majeure causing a
delay in performance or preventing performance of any obligations imposed by
this Agreement (and the
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termination of such delay), the party affected shall give written notice to the
other party giving details of the same, including particulars of the actual, and
it applicable, estimated continuing effects of such force majeure on the
obligations of the party whose performance is prevented or delayed. If such
notice shall have been duly given and actual delay resulting from such force
majeure shall be deemed not to be a breach of this Agreement, and the period for
performance of the obligation, to which it relates shall be extended
accordingly, provided that if force majeure results in the performance of a
party being delayed by more than 60 days, the other party shall have the right
to terminate this Agreement with respect to any Service effected by such delay
forthwith by written notice.
Section 2.3. Entire Agreement. This Agreement (including the
Master Note attached hereto asAppendix A and constituting a part of this
Agreement) and any other writing signed by the parties that specifically
references this Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements,
understandings and negotiations, both written and oral between the parties with
respect to the subject matter hereof. This Agreement is not intended to confer
upon any Person other than the parties hereto any rights or remedies hereunder.
Section 2.4. Information. Subject to applicable law and
privileges, each party hereto covenants and agrees to provide the other party
with all information regarding itself and transactions under this Agreement that
the other party reasonably believes are required to comply with all applicable
federal, state, county and local laws, ordinances, regulations and codes,
including, but not limited to, securities laws and regulations.
Section 2.5. Notices. Any notice, instruction, direction or
demand under the terms of this Agreement required to be in writing will be duly
given upon delivery, if delivered by hand, facsimile transmission, intercompany
mail, or mail, to the following, addresses:
(a) If to NGP, to;
New Generation Plastic, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
(b) If to BMI, to
Bachkine & Xxxxx Industries, S.A.
000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxx
BVI
Phone: 000 00 00 000 0000
Fax: 000 00 00 000 0000
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or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
Section 2.6. Governing Law. This Agreement shall be construed
in accordance with and governed by the substantive internal laws of the State of
Delaware.
Section 2.7. Should any provision of this Agreement be invalid
or unenforceable, such invalidity or unenforceability shall not render the
entire Agreement invalid. Rather, the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision, and the rights and
obligations of each party shall be construed and enforced accordingly.
Section 2.8 Amendment. This Agreement may only be amended by a
written agreement executed by both parties hereto.
Section 2.9 Counterparts. This Agreement may be executed in
separate counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by their duly authorized representatives.
NEW GENERATION PLASTIC, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
BACHKINE & XXXXX INDUSTRIES, S.A.
By: /s/ Jacques Mot
-------------------------------
Name: Jacques Mot
Title: Chairman
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Appendix A
Master Promissory Note
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MASTER PROMISSORY NOTE
New York, New York
April 15, 1999
FOR VALUE RECEIVED, New Generation Plastic, Inc. ("Debtor")
promises to pay to the order of Bachkine & Xxxxx Industries, S.A. ("Lender"), in
lawful money of the United States of America, in immediately available funds, at
such location as the Lender shall designate, the principal sum of the aggregate
of all advances (the "Advances") made to the Debtor by the Lender pursuant to
the Line of Credit Agreement, or so much thereof as shall from time to time be
outstanding, together with interest on said principal sum or amount outstanding,
as appropriate (the "Principal Amount"), from the date hereof until this Note is
paid in full.
1. Interest. In the event that the parties determine that the
Note will remain outstanding for more than six (6) months from the date hereof,
the parties will determine an interest rate based on the Prime Rate (as defined
herein) in effect from time to time. The calculation of such rate (the "Interest
Rate") shall be annexed hereto as Schedule A. If interest is being charged as
set forth above, Debtor promises to pay interest on the Principal Amount of this
Note from the date the Interest Rate becomes effective, payable quarterly in
arrears beginning on the end of the first calendar quarter ending after interest
begins to accrue and continuing on the end of each quarter of each year for so
long as any of the Principal Amount remains unpaid at the Interest Rate.
Interest shall be calculated on the basis of a 360 day year consisting of 12
months of 30 days each.
2. Principal. Debtor promises to pay to the order of Lender,
the Principal Amount in one lump sum payment on demand, together with all
accrued but unpaid interest thereon. Notwithstanding the foregoing, the Lender
hereby agrees that, absent a default by the Debtor, it will not demand payment
of the Principal Amount until after July 15, 2000.
3. Payments. Debtor may pay this Note in whole or in part at
any time. Partial payments of this Note shall be applied first to accrued and
unpaid interest on the Principal Amount of this Note and then to the Principal.
4. Remedies. Upon default by Debtor of its obligation to pay
the Principal Amount on demand or the interest thereon when due, the Lender may
exercise any and all of the rights and remedies afforded to it under law.
5. Method of Payment. All payments of principal and interest
hereunder shall be made by certified check, wire transfer or other mutually
agreeable form of payment to Lender at its address specified herein or at any
other address of Lender which is specified in writing by Lender to Debtor at
least two (2) business days prior to the date when such payment is due. If the
payment of principal or interest on the Note shall become due on a day which is
not a business day, such payment shall be made on the next succeeding business
day and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
6. No Waiver. Each and every one of the rights, remedies,
options and benefits provided herein to Lender or the holder hereof, shall be
cumulative and shall not be exclusive of any other rights, remedies or benefits
provided in any other agreements between Lender and Debtor, or as provided by
law. Neither the failure nor delay by Lender or the holder hereof to exercise
any right, remedy, option, power or privilege hereunder shall operate as a
waiver of the right to exercise
the same at a later time; nor shall any single or partial exercise of any such
right, remedy, option, power or privilege by Lender or the holder hereof operate
as a waiver of any such right, remedy, option, power or privilege.
7. Waiver of Presentment. Debtor and all endorsers, guarantors
and all persons who are liable or who may hereafter become liable under this
Note, jointly and severally, hereby expressly waive presentment for payment,
demand, notice of nonpayment, notice of dishonor, protest of any dishonor,
notice of protest, diligence in collection and notice of any other kind in
connection with this Note.
8. Collection Costs. Debtor agrees to pay all collection costs
(including, but not limited to, reasonable attorneys' fees and disbursements)
incurred by Lender hereunder.
9. Governing Law. This Note shall be construed in accordance
with and governed by the internal laws and decisions of the State of Delaware
(without giving effect to choice of law principles).
10. Application of Law. The parties hereto intend and believe
that each provision of this Note comports with all applicable local, state and
federal laws and judicial decisions. However, if any provision or provisions or
if any portion of any provision or provisions in this Note is found by a court
of law to be in violation of any applicable local, state or federal ordinance,
statute, law, administrative or judicial decision, or public policy and if such
court should declare such portion, provision or provisions of this Note to be
illegal, invalid, unlawful, void or unenforceable as written, then it is the
intent of all parties hereto that such portion, provision or provisions shall be
given force to the fullest possible extent that it or they are legal, valid and
enforceable, that the remainder of this Note shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained therein, and that the rights, obligations and
interests of Debtor and the holder hereof under the remainder of this Note shall
continue in full force and effect. All agreements herein are expressly limited
so that in no contingency or event whatsoever, whether by reason of advancement
of the proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid or agreed to be paid to the holders
hereof for the use, forbearance or detention of the money to be advanced
hereunder exceed the highest lawful rate permissible under applicable usury
laws. If, from any circumstances whatsoever, the fulfillment of any provision
hereof at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity; and if, from any
circumstance, the holder hereof shall ever receive as interest an amount which
would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance due
here under and not to the payment of interest.
11. Captions. The captions and headings of various Sections of
this Note are for convenience only and are not to be considered as defining or
limiting in any way, the scope or intent of the provisions hereof.
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12. Notices. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be sufficiently given (i) on the date of transmittal, if
personally delivered, (ii) on the business day after transmittal, if sent by
facsimile (with a confirming copy mailed by international air mail), and (iii)
on the third day following posting if mailed postage prepaid, by registered air
mail, addressed as follows:
If to Lender: Bachkine & Xxxxx Industries, S.A.
000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxx
BVI
Facsimile: 011 41 22 318 3750
If to Debtor: New Generation Plastic, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
13. Modification, Waiver. No modification, waiver, amendment,
discharge or change of this Note shall be valid unless the same is in writing
and signed by the party against which the enforcement of such modification,
waiver, amendment, discharge or change is sought.
14. Time is of the Essence. Time is hereby declared to be of
the essence of this Note and of every part hereof.
15. Successors and Assigns. This Note shall inure to the
benefit of and shall be binding on the parties hereto and their respective
successors and assigns.
The undersigned has executed this Note as of the day and year
first set forth above.
New Generation Plastic, Inc.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
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