Exhibit 10.62
THIRD AMENDMENT TO MODIFIED LOAN AGREEMENT
AND SECOND AMENDMENT TO NOTE
THIS THIRD AMENDMENT TO MODIFIED LOAN AGREEMENT AND SECOND AMENDMENT
TO NOTE (the "Amendment") is made and entered into to be effective as of August
19, 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 (as amended, 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 (as amended,
the "Note"). On May 23, 2002, the Borrower and the Lender entered into
that certain First Amendment to Modified Loan Agreement and First
Amendment to Note, pursuant to which the maturity date under the Loan
Agreement was extended until June 30, 2002 and the Commitment was
reduced to $4,500,000. On June 30, 2002, the Borrower and the Lender
entered into that certain Second Amendment to Modified Loan Agreement,
pursuant to which the maturity date under the Loan Agreement was
extended until July 17, 2002. On July 29, 2002, the Court issued an
order extending the maturity date under the Loan Agreement until
August 19, 2002.
B. The Court has issued in the Lender Case and the Case orders
authorizing the extension of the maturity date under the Loan
Agreement until September 30, 2002 and the increase of the Commitment
to $8,000,000.
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 and the Note shall be and hereby are amended and
modified as follows:
a. The definition of "Employee Expenses" contained in Section 1.1 of
the Loan Agreement is hereby deleted.
b. The definition of "Excess Cash Flow" contained in Section 1.1 of
the Loan Agreement is hereby modified to delete therefrom the phrase
"$500,000" and replace it with the phrase "$250,000".
c. The definition of "Maturity Date" contained in Section 1.1 of the
Loan Agreement is hereby modified to delete therefrom the phrase "July
17, 2002" and replace it with the phrase "September 30, 2002".
d. The definition of "Ordinary Expenses" contained in Section 1.1 of
the Loan Agreement is hereby deleted.
e. All references in the Loan Agreement and the Note to "Four
Million Five Hundred Thousand Dollars" and "$4,500,000" are hereby deleted and
replaced with "Eight Million Dollars" and "$8,000,000", respectively.
f. Section 2.1 of the Loan Agreement is hereby amended by deleting
therefrom the first two sentences thereof and replacing them with the
following language:
"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 $8,000,000, subject to reduction as set forth
in this Section 2.1. The loans made to the Borrower by the Lender
pursuant to this Section 2.1 shall be referred to herein as
"Loans". The Borrower shall use the proceeds of Loans for
ordinary and necessary business expenses; provided that the
amount of the Commitment shall automatically and permanently
reduce from time to time, without the execution of further
documentation, upon the receipt by the Borrower of cash proceeds
from the sale of any assets outside the ordinary course of
business, upon motion to and order of the Court, in the net
amount of such sales proceeds as may be paid to the Borrower on
each such occasion; and further provided that, upon receipt of
any such cash proceeds from the sale of assets, the Borrower
shall prepay the Loans outstanding in an amount that is the
lesser of (a) that portion of such cash proceeds which
constitutes Excess Cash Flow (unless such payment would, giving
effect to this Section 2.1 in its entirety, render the amount of
the Loans outstanding immediately following such payment as being
greater than the amount of the Commitment, as the same has been
reduced, in which case the prepayment shall be in such greater
amount as is necessary to reduce the outstanding Loans to an
amount which is equal to or less than the Commitment) or (b)
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the amount of the Loans currently outstanding under the
Commitment; and further provided that the Borrower may not make
any Borrowings whatsoever under the Commitment so long as and to
the extent that the Borrower has or has access to any cash
whatsoever other than the $250,000 in maximum aggregate bank
balances. Except as expressly set forth above, the foregoing does
not affect in any manner the Borrower's obligation to make
payments of Excess Cash Flow pursuant to Section 2.6 hereof,
which obligation remains absolute. In the event of any conflict
between the provisions of this Section 2.1 and Section 2.6, this
Section 2.1 shall control."
g. Exhibit B to the Loan Agreement is hereby amended to add a new
paragraph 4 thereto as follows: "The Borrower currently does not have or have
access to any cash, except for an amount not greater than $250,000 in maximum
aggregate bank balances."
3. Extension and Increase Request. This Amendment is the amendment
relating to the Extension and Increase Request contemplated by recital paragraph
G and Section 5.10 of the Loan Agreement.
4. 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.
5. 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.
6. 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.
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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:
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Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
BCP MANAGEMENT, INC.
a Delaware corporation
By:
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Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
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