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EXHIBIT 10.15
MASTER PROMISSORY NOTE
Date: May 30, 1995
US $13,000,000 New York, New York
FOR VALUE RECEIVED (and, if applicable, pursuant to the terms
and conditions contained in the Facility Letter Agreement dated May 12, 1994, as
same may be amended, extended, renewed or modified from time to time), JLM
INTERNATIONAL INC. and OLEFINS MARKETING INC., both corporations organized under
the laws of the State of Delaware, (the "Borrowers"), hereby promise to pay to
the order of CAISSE NATIONALE DE CREDIT AGRICOLE, NEW YORK BRANCH (the "Bank")
at its offices located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the
principal sum of US$13,000,000 (THIRTEEN MILLION US DOLLARS) or the outstanding
principal amount of all obligations owing to the Bank as set forth on the grid
attached hereto, whichever is less, in lawful money of the United States and in
immediately available funds, either (i) on DEMAND or (ii) on the dates agreed
upon between the Borrowers and the Bank and recorded in the Bank's Books and
records and on the grid attached hereto. The Borrowers also agree to pay
interest from the date hereof, in like money, on such principal amount at said
office upon the Bank's first DEMAND or on the applicable interest payment date
as agreed upon between the Borrowers and the Bank and at a rate per annum as
agreed, from time to time, between the Borrowers and the Bank (the interest rate
in respect of any borrowing evidenced hereby, the "Applicable Rate"); provided
that the failure to make notations on the grid attached hereto shall not limit
or otherwise affect the obligations of the Borrowers with respect to payments of
principal and interest on this Note. Interest on any overdue amount of principal
of this Note and any interest accrued thereon shall be payable on demand at a
rate per annum (computed on the basis of the actual number of days elapsed in a
year of 360 days) equal at all times to the Applicable Rate plus 2%, (unless
the Bank and the Borrowers agree, subject to the Bank's sole and absolute
discretion, to an alternative means of financing the transaction).
Unless any sums outstanding under this Note are payable on DEMAND, the
aggregate outstanding principal amount of this Note, all accrued interest
hereon, and all other monetary obligations of the Borrowers to the Bank, whether
absolute or contingent, direct or indirect, now or hereafter existing, shall
become immediately due and payable, upon notice from the Bank to the Borrowers,
after the occurrence of any of the following events (each an "Event of
Default"), without presentment, demand, protest or notice of any kind, all of
which, to the extent permitted by applicable law, are hereby expressly and
irrevocably waived by the Borrowers: (i) any Borrowers shall default in the
payment of any amount owing to the Bank including, without limitation, the
payment of any amount of the principal of or interest on this Note, when and as
the same shall become due and payable, whether at maturity, upon the demand of
the Bank, by acceleration or otherwise; (ii) the Borrowers, any subsidiary of
the Borrowers, or any guarantor or endorser hereof (a "Guarantor") shall (a)
apply for or consent to the appointment of, or the taking of possession
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by, a receiver, custodian, trustee, liquidator or similar official for itself or
of all or a substantial part of its properties or assets, (b) admit in writing
to its inability, or be generally unable, to pay its debts as such debts become
due, (c) make a general assignment for the benefit of creditors, (d) be
adjudicated bankrupt or insolvent, (e) commence a voluntary case under any
bankruptcy, insolvency, reorganization or similar law, in New York or any other
jurisdiction, (f) file a voluntary petition in bankruptcy, or a petition or
answer seeking an arrangement with creditors or seeking to take advantage of any
bankruptcy, insolvency, reorganization, winding-up, composition or readjustment
of debts, dissolution or liquidation law or statute or file an answer admitting
the material allegations of a petition filed against it under any such law or
statute, (g) fail to controvert in a timely or appropriate manner, or acquiesce
in writing to any such petition filed against it or (h) take any action for the
purpose of effecting any of the foregoing; (iii) a proceeding or case shall be
commenced in any court of competent jurisdiction seeking (a) the liquidation,
reorganization, dissolution, winding-up, or composition or readjustment of debts
of any one of the Borrowers, any subsidiary of the Borrowers, or any Guarantor,
(b) the appointment of a trustee, receiver, custodian, liquidator or similar
official of the Borrowers, any subsidiary of the Borrowers or any Guarantor
under any law relating to bankruptcy, insolvency, reorganization, winding-up,
composition or readjustment of debts and such proceeding or case shall continue
undismissed, or an order, judgement or decree approving or ordering any of the
foregoing shall be entered and continued unstayed and in effect for a period of
forty-five (45) days; or (iv) an order, judgment or decree relating to the
Borrowers, any subsidiary of the Borrowers, or any Guarantor shall be entered
without the application, approval or consent of the applicable debtor relating
to the insolvency, bankruptcy, reorganization, winding up, composition or
readjustment of debts of the Borrowers, such subsidiary or such Guarantor; (v)
attachment, distraint, levy or execution of judgement shall be levied on or
enforced against any one of the Borrowers, any subsidiary of the Borrowers, or
any Guarantor or their respective properties or assets which is not stayed or
dismissed within forty-five (45) days; (vi) the Borrowers, any subsidiary of the
Borrowers, or any Guarantor shall be discovered to have submitted to the Bank,
directly or indirectly, any financial statement or other information which
proves to be incorrect or misleading in any material respect; (vii) any holder
or obligee of any indebtedness of the Borrowers or any Guarantor or a trustee or
similar official on behalf of such holder or obligee shall have the right to
accelerate such indebtedness prior to its stated maturity date; (viii) the
Borrowers, any subsidiary of the Borrowers or any Guarantor shall fail, breach
or default in the performance or observance of any of the obligations, covenants
or conditions set forth in this Note or under any other agreement with the Bank
to which the Borrowers, such subsidiary or such Guarantor is a party; (ix) there
shall be a material adverse change in the financial condition of the Borrowers,
any subsidiary of the Borrowers or any Guarantor; (x) any representation or
warranty set forth in this Note or in any report, financial statement,
certificate, instrument, agreement or other document furnished by the Borrowers,
any subsidiary of the Borrowers or any Guarantor to the Bank shall prove to have
been false or misleading in any material respect; (xi) the Borrowers, any
subsidiary of the Borrowers or any Guarantor shall fail to furnish any financial
information to the Bank or permit inspection of any of its books or records at
the Bank's reasonable request; or (xii) there shall be any material tax
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assessment by the United States Government or any state or political subdivision
thereof against the Borrowers, any subsidiary of the Borrowers or any Guarantor.
The Borrowers covenant and agree that until this Note is
indefeasibly paid in full it will (i) promptly provide to the Bank all financial
and operational information with respect to the Borrowers as the Bank may
reasonably request; (ii) promptly after the occurrence of an Event of Default or
an event, act or condition which, with notice or lapse of time or both, would
constitute an Event of Default, provide the Bank with a certificate of an
officer of the Borrowers specifying the nature thereof and the Borrowers'
proposed response thereto; or (iii) not merge into or consolidate with any other
entity, or sell, lease or otherwise dispose of all or any substantial part of
its property or assets to any other entity outside the ordinary course of
business.
The Borrowers hereby expressly represent and warrant to the Bank
that (i) they are corporations duly formed, validly existing and in good
standing under the laws of the place of their formation; (ii) they have full
power and authority to execute, deliver and perform this Note; (iii) the
execution, delivery and performance by the Borrowers of this Note will not (a)
violate any provision of law, or any order, judgment, rule or regulation of any
court or any governmental agency, authority or regulatory body applicable to the
Borrowers, (b) violate the Charter documents and/or Bylaws of the Borrowers, (c)
violate any of the terms or provisions of any indenture, agreement, mortgage,
contract or other instrument to which the Borrowers are parties or by which any
of their property or assets are bound, or be in conflict with, result in a
breach of, or constitute (with notice or lapse of time or both) a default under
any such indenture, agreement, mortgage, contract or other instrument or (d)
result in the creation or imposition of any mortgage, pledge, lien, security
interest, charge or other encumbrance of any nature whatsoever upon any of the
property or assets of the Borrowers other than that expressly permitted hereby;
(iv) this Note has been duly executed and delivered by the Borrowers in
accordance with all requisite corporate power and authority and constitutes the
legal, valid and binding obligation of the Borrowers enforceable against the
Borrowers in accordance with its terms; (v) all consents and grants of approval
required to have been granted by any entity in connection with the execution,
delivery and performance of this Note have been granted; (vi) there is no
action, suit, proceeding or governmental investigation pending or, to the
knowledge of the Borrowers, threatened against the Borrowers or any of their
assets which, if adversely determined, would have a material adverse effect on
the business, operations, properties, assets, condition (financial or otherwise)
or prospects of the Borrowers, or the ability of the Borrowers to comply with
their obligations hereunder; and (vii) the proceeds of the loan evidenced by
this Note shall be used by the Borrowers to finance trade; provided that no part
of such proceeds will be used by the Borrowers to purchase or carry any "margin
stock" within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect or to
extend credit to others for the purpose of purchasing or carrying any such
"margin stock" or to reduce or retire any indebtedness incurred for any such
purpose, and neither the Borrowers nor any of their subsidiaries are engaged
principally or as one of their important activities in the business of
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extending credit for the purpose of purchasing or carrying any such "margin
stock". The foregoing representations and warranties are hereby deemed repeated
and reaffirmed by the Borrowers in respect to each advance made pursuant to this
Note at and as of the time that each advance is made. At the time that each
advance is made, the Borrowers are hereby deemed to further expressly represent
and warrant that all of the covenants and agreements contained in the previous
paragraph are true and correct as of the time of each such advance.
As a security for the payment of all amounts owing to the Bank by
the Borrowers under this Note or otherwise, the Borrowers hereby mortgage,
pledge, assign, transfer, set over and convey to the Bank a first, prior and
perfected mortgage, lien, pledge and security interest in any cash, deposits,
securities or other property, tangible or intangible, from time to time left in
or coming into the possession, control or custody of the Bank, including,
without limitation, all proceeds thereof, in accordance with the Uniform
Commercial Code as in effect in the State of New York. This Note is also secured
by a Security Agreement dated as of the date hereof between the Borrowers and
the Bank. Upon the occurrence of an Event of Default, the Bank shall be entitled
to all the rights and remedies of a secured party under the Uniform Commercial
Code. Upon the occurrence of an Event of Default, the Bank shall have the right
to set-off, without notice to the Borrowers, any amount owed by the Borrowers to
the Bank against any cash, deposits or credits of the Borrowers at or in the
possession of the Bank. The proceeds of any sale of property in which the Bank
has a mortgage, lien, pledge, security interest or right of set-off may be
applied by the Bank against indebtedness evidenced hereby or any other
indebtedness of the Borrowers to the Bank in such order as the Bank in its
reasonable discretion may determine.
If this Note at any time requires payment by the Borrowers to the
Bank of any amount of interest in excess of the maximum amount then permitted by
applicable law, the interest payment to the Bank shall be reduced to such
maximum amount. All payments of principal and interest to be made by the
Borrowers to the Bank hereunder shall be in immediately available funds.
If, as a result of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof (whether or not having the force of
law) or compliance by the Bank with any request or directive of any such
authority, central bank or comparable agency (whether or not having the force of
law)(i) the Bank shall be subjected to any tax, duty or other charge with
respect to the loan(s) or advances evidenced by this Note or any change in the
basis of taxation of the payments to the Bank hereunder; or (ii) there shall be
imposed, modified or reasonably deemed applicable any reserve (including,
without limitation, any imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirements against
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assets of, deposits with or for the account of, or credit extended by, the Bank
and the result of any of the foregoing is to increase the cost to the Bank of
making or maintaining the loan(s) or advance(s) evidenced hereby or to reduce
the amount of any sum received by the Bank hereunder, then, after reasonable
demand by the Bank, the Borrowers shall pay to the Bank such additional amount
or amounts as will compensate the Bank on an after-tax basis for such increased
costs or reduction. A certificate of the Bank setting forth the basis for
determining such additional amount or amounts shall be conclusive in the absence
of any manifest error.
The Borrowers hereby agree to pay all reasonable costs and
expenses, including, without limitation, the reasonable fees and disbursements
of attorneys for the Bank, incurred by the Bank in connection with the
preparation of the documentation contemplated hereby, collection of amounts due
hereunder and the preservation, enforcement and protection of any of the rights
and remedies of the Bank hereunder and under applicable law.
Failure or delay of the Bank or the Borrowers to enforce any
provision of this Note shall not be deemed a waiver of any such provision, and
the Bank or the Borrowers shall not be prevented from enforcing any such
provision at a later time. Any waiver of any provision hereof must be in writing
and signed by an authorized officer of the Bank and the Borrowers. Each and
every right and remedy hereby granted to the Bank and the Borrowers or allowed
any one of them by law shall be cumulative and may be exercised by the Bank and
the Borrowers from time to time.
This Note shall inure to the benefit of the successors, assigns and
transferees of the Bank. The Bank may grant participations in this Note without
any consent of the Borrowers or any other party.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
The Borrowers unconditionally and irrevocably agree that any legal
action, suit or proceeding against them with respect to their obligations or
liabilities hereunder or arising out of or in connection with this Note or the
transactions contemplated hereby for recognition or enforcement of any judgment
rendered in any such action, suit or proceeding may be brought, on a
non-exclusive basis, in the United States Federal Court for the Southern
District of New York or in the courts of the State of New York, as the Bank or
any successor, assignee or transferee of the Bank may elect.
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THE BORROWS UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY
IN ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS NOTE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be executed
and delivered as of the date first written above.
JLM INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxxx By:
------------------------- ------------------------------
Name: Xxxxx X. Xxxxx Name:
Title: Vice President & CFO Title:
Date: 6-16-95 Date:
OLEFINS MARKETING INC.
By: /s/ Xxxxx X. Xxxxx By:
------------------------- ------------------------------
Name: Xxxxx X. Xxxxx Name:
Title: Vice President & CFO Title:
Date: 6-16-95 Date:
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TRANSACTIONS ON NOTE
JLM INTERNATIONAL INC., & OLEFINS MARKETING INC., BORROWERS
MATURITY OUTSTANDING
AMOUNT OF DATE OR AMOUNT OF PRINCIPAL
LOAN MADE PAYABLE ON PRINCIPAL PAID INTEREST BALANCE NOTATION
DATE BORROWERS THIS DATE DEMAND THIS DATE RATE THIS DATE MADE BY
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