Exhibit 10.60
AMENDED AGREEMENT TO ASSUME AND ASSIGN CERTAIN EXECUTORY
CONTRACTS DATED AS OF AUGUST 16, 2002 BETWEEN XXXXXX CHEMICALS
AND PLASTICS OPERATING LIMITED PARTNERSHIP AND
GEORGIA GULF CORPORATION
Xxxxxx Chemicals and Plastics Operating Limited Partnership
("Assignor"), debtor and debtor in possession in the Chapter 11 proceeding In
re: Xxxxxx Chemicals and Plastics Operating Limited Partnership et al., Case No.
01-1268 (PJW), United States Bankruptcy Court for the District of Delaware,
hereby agrees to assume all of its right, title, interest and obligations under
certain contracts between Shell Chemical Company, Shell Oil Company and Shell
Chemical Capital Company (collectively, "Shell") and Xxxxxx Chemicals and
Plastics Operating Limited Partnership (these contracts being referred to as
"V-Cracker Contracts" and "Assignment Contracts" and hereinafter collectively
referred to as "Ethylene Contracts"), dated as of February 1996, as extended,
amended, or modified where applicable between Shell and Assignor, and to assign,
all of its right, title, interest and obligations under the Ethylene Contracts
to Georgia Gulf Corporation ("GGC") ("Assignee"), pursuant to 11 U.S.C.
Section 365, subject to the terms set forth below.
1. Assignor has filed a motion with the Bankruptcy Court seeking an
Order, pursuant to 11 U.S.C. Section 365, authorizing Assignor to assume and
assign all of its rights, title, interests and obligations under the Ethylene
Contracts to Assignee upon the terms and conditions set forth in this Agreement
to Assume and Assign Certain Executory Contracts Dated as of August 16, 20002
Between Xxxxxx Chemicals and Plastics Operating Limited Partnership and Georgia
Gulf Corporation (the "Agreement"). Consummation of the transaction contemplated
by the Agreement is subject to entry of the Assumption and Assignment Order (the
"Order") by the Bankruptcy Court. Assignee shall, at Assignee's own cost,
cooperate in good faith with the
reasonable requests of Assignor regarding the procurement of the Order and with
any proceedings in connection therewith or in furtherance thereof.
2. The Ethylene Contracts are being assigned "as is," without any
oral or written warranties or representations, express or implied, except that
Assignor warrants and represents that, subject only to Shell Chemical Capital's
rights and interests under the Assignment Agreements, Assignor has title to the
Ethylene Contracts and has not previously assigned or transferred the Ethylene
Contracts and the Ethylene Contracts are not currently pledged or hypothecated.
3. Effective as of the date of the Order becomes a final,
non-appealable order (the "Approval Date"), Assignor hereby assigns to Assignee
all of Assignor's rights, title, interest and obligations under the Ethylene
Contracts in consideration for which Assignee shall pay to Assignor, by wire
transfer, within 3 days of the Approval Date an amount of 3.2 million dollars
($3,200,000.00) (the "Purchase Price") less the one hundred thousand dollar
($100,000) deposit fee set forth in paragraph 5, and Assignee hereby assumes all
of Assignor's right, title, interest and obligations under the Ethylene
Contracts.
4. Assignee shall also pay to Shell within 3 days of the Approval
Date $10,385,538.62 constituting the cure amount necessary to cure all defaults
or breaches related to the Ethylene Contracts pursuant to 11 U.S.C. section 365.
Any payments made by Assignee under this paragraph 4 shall not be deemed to
constitute a portion of the Purchase Price. The Cure Amount does not include
payment for product designated for delivery in August and payable under the
Ethylene Contracts on September 8, 2002. Assignee shall pay all payments due for
product designated for delivery in August as required under the Ethylene
Contracts.
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5. As of the date hereof, Assignee has deposited with counsel for
the Assignor one hundred thousand dollars ($100,000.00) (the "Deposit"). Counsel
for the Assignor shall hold the Deposit in escrow until such time as the
Bankruptcy Court enters the Order. The balance of the Purchase Price shall be
paid to Assignor within three (3) days of the Approval Date. If the transaction
fails due to Assignee's failure to perform its duties hereunder, the Deposit
shall be deemed forfeited and shall be remitted to the Assignor.
6. Assignee and Assignor agree that the Bankruptcy Court shall
retain jurisdiction over any and all disputes hereunder, and thereby consent to
such jurisdiction.
7. The Agreement may be executed with counterpart signature pages or
in more than one counterpart, all of which shall be deemed one and the same
agreement, and shall become effective on or after the Approval Date when one or
more of the counterparts have been signed by each of the parties and delivered
to all the parties.
8. The Agreement sets forth the entire agreement and understanding
of the parties with respect to the transaction contemplated herein and
supersedes any prior instruments, arrangements, and understandings relating to
the subject matter thereof.
9. The Agreement is subject to approval by the Bankruptcy Court.
Until the Approval Date, the Agreement shall not prejudice or impair any of the
rights and remedies of the parties herein.
10. The Agreement shall be interpreted in accordance with the
substantive law of the State of Delaware, without regard to its choice of law
rules.
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IN WITNESS WHEREOF, the parties to this Agreement have caused the
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ASSIGNOR:
XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP
By: BCP Management Inc.,
Its General Partner
By:
Name:
Title:
ASSIGNEE
By: Georgia Gulf Corporation
Name:
Title:
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