AMENDMENT TO INTERCOMPANY AGREEMENT
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AMENDMENT TO INTERCOMPANY AGREEMENT (this "Amendment") dated as of July 28,
2000, among Xxxxxx Chemicals and Plastics Limited Partnership, a Delaware
limited partnership (the "Partnership"), Xxxxxx Chemicals and Plastics Operating
Limited Partnership, a Delaware limited partnership (the "Operating
Partnership"), Xxxxxx, Inc., a New Jersey corporation ("Xxxxxx"), and BCP
Management, Inc., a Delaware corporation ("BCPM").
WITNESSETH:
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WHEREAS, the Operating Partnership, the Partnership, Xxxxxx and BCPM are
parties to an Intercompany Agreement dated November 30, 1987 (the "Agreement");
and
WHEREAS, Section 6 of the Agreement contains noncompetition covenants of
Xxxxxx and its Subsidiaries with respect to the manufacture or sale of various
products including, but not limited to, ammonia, urea and methanol; and
WHEREAS, a Xxxxxx Subsidiary, Xxxxxx Chemical, Inc., and the Operating
Partnership have entered into a Conveyance and Transfer Agreement dated June 27,
2000, which, inter alia, provides for the mutual release of the various
obligations between them with respect to the purchase and sale of ammonia, urea
and methanol,
NOW, THEREFORE, in consideration of the premises and of the mutual promises
contained herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used herein without definition
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shall have the respective meanings specified therefor in the Agreement.
Section 2. Amendment. Section 6 of the Agreement shall be amended and
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restated in its entirety as follows:
Section 6. Noncompetition Covenant of Xxxxxx. During the period
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Xxxxxx or any of its subsidiaries is a general partner of the Partnership
or the Operating Partnership, Xxxxxx shall not engage in the continental
United States in the manufacture or sale of acetylene, acetylene-based
vinyl chloride monomer, ethylene-based vinyl chloride monomer, acetic acid
and general-purpose and specialty-purpose polyvinyl chloride resins. In
addition, if the prohibition contained in the preceding sentence becomes
inapplicable by reason of (i) the withdrawal of the General Partner as
general partner of the Partnership or the Operating Partnership under
circumstances where such withdrawal violates the Partnership Agreement or
the Operating Partnership Agreement or (ii) the removal of the General
Partner as general partner of the Partnership by the Limited Partners under
circumstances where "cause" exists, then Xxxxxx shall not engage in the
activities referred to in the preceding sentence during the two year
period ending on the second anniversary of such withdrawal or removal. For
such purpose, "cause" means that a court of competent jurisdiction has
entered a final, non-appealable judgment finding BCPM (or such other
subsidiary serving as general partner of the Partnership or the Operating
Partnership) liable for actual fraud, gross negligence or willful or wanton
misconduct in its capacity as general partner of the Partnership or the
Operating Partnership.
Section 3. Effective Date. This Amendment shall be effective as of the
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day and year first set forth above.
Section 4. Remaining Terms. Except as amended above, the Agreement shall
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remain and continue between the parties upon its original terms and conditions.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the day and year first above written.
XXXXXX CHEMICALS AND PLASTICS
LIMITED PARTNERSHIP
By: BCP Management, Inc.,
as General Partner
By:
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Its:
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XXXXXX CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
By: BCP Management, Inc.,
as General Partner
By:
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Its:
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XXXXXX, INC.
By:
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Its:
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BCP MANAGEMENT, INC.
By:
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Its:
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