Exhibit 10.58
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re: :
: Jointly Administered
BORDEN CHEMICALS AND : Case No. 01-1268 (PJW)
PLASTICS OPERATING LIMITED :
PARTNERSHIP, a Delaware limited :
partnership, et al., :
: Chapter 11
Debtors. : Relates to Docket No. 860
ORDER AUTHORIZING DEBTORS AND DEBTORS IN POSSESSION
TO ASSUME AND ASSIGN CERTAIN ETHYLENE CONTRACTS
AND SETTING CURE AMOUNT
This matter coming before the Court on the Motion of Debtors and
Debtors in Possession for an Order: (A) Approving Bid Procedures; (B)
Authorizing Assumption and Assignment of Certain Ethylene Contracts; (C) Setting
Cure Amount; and (D) Granting Related Relief (the "Motion"); the Court having
reviewed the Motion; the Court finding that: (a) the Court has jurisdiction over
this matter pursuant to 28 U.S.C. Sections 157 and 1334; (b) this is a core
proceeding pursuant to 28 U.S.C. Section 157(b)(2); (c) due and proper notice of
the Motion has been given under the circumstances, and no other or further
notice is required; (d) assumption and assignment of the Ethylene Contracts (as
defined in the Motion) is allowable under section 365 of the Bankruptcy Code, is
a reasonable exercise of the business judgment of the Debtors, and is in the
best interests of the Debtors' estates and creditors, (e) the Debtor has
thoroughly marketed the Ethylene Contracts and conducted an auction at which
Qualified Bidders engaged in competitive bidding, (f) the Debtors, after
consultation with BCP Management, BCP Creditors' Committee and the BCPM
Creditors' Committee, have determined that Georgia Gulf
1
Corporation ("GGC") has submitted the highest and best bid, (g) GGC has
submitted the highest and best bid, and has negotiated fairly and in good faith
and has provided adequate assurance of future performance under the Ethylene
Contracts and (h) the Court having determined that the legal and factual bases
set forth in the Motion establish just cause for the relief granted herein;
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED.
2. Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in the Motion; the Notice by Debtors and Debtors
in Possession of: (A) Amended Bid Procedures Related to Potential Assumption and
Assignment of Certain Ethylene Contracts, (B) Hearing on same and (C) Amended
Opening Bid for Contracts [Docket No. 903] (the "Amended Notice of Bid
Procedures") and the Order Approving Bidding Procedures With Respect To Debtors'
Assumption and Assignment Of Certain Ethylene Contracts And Setting Cure Amount,
which was entered by the Bankruptcy Court on August 7, 2002 [Docket No. 921]
(the "Bid Procedures Order").
3. Pursuant to the terms and procedures set forth in the Motion, the
Bid Procedures Order and this Sale Order, the Cure Amount due and owing to Shell
is hereby determined to be as follows:
a. $3,367,335.10, representing a prepetition cure amount
arising from goods ("Product") delivered pursuant to
the Ethylene Contracts (the "Prepetition Cure");
b. $7,018,203.46, representing a postpetition cure amount
(the "Postpetition Cure") as of August 1, 2002.
4. Shell has timely filed objections [Docket Nos. 874, 913 and 947]
(the "Shell Objections") to the Motion. However, the Debtors and BCP Management,
Inc., together with their respective committees of unsecured creditors, have
agreed to the terms of a Stipulation
2
and Order Relating to an Agreement by and Among Shell Oil Company, Shell
Chemical Company, Shell Chemical Capital Corporation and the Debtors Concerning
the Assumption and Assignment of Certain Ethylene Contracts (the "Stipulation"),
which, upon Court approval, will resolve the Shell Objections. This Order shall
not be effective until the entry of an Order approving the Stipulation. Until
the entry of such an Order, Shell reserves all of its rights to assert the Shell
Objections, except as determined in the Bid Procedures Order.
5. The Debtors are hereby authorized immediately to assume and
assign the Ethylene Contracts to GGC, pursuant to section 365 of the Bankruptcy
Code, under the terms set forth in the assumption and assignment agreement
attached hereto as Exhibit A (the "Assumption and Assignment Agreement") and
incorporated by reference as if fully set forth herein. GGC shall take the
Ethylene Contracts free and clear of all liens, claims and encumbrances of any
other party.
6. Within 3 days after the Approval Date (as defined in the
Assumption and Assignment Agreement) GGC is ordered to pay to the Debtors all
amounts owing to the Debtors pursuant to the terms of the Assumption and
Assignment Agreement amounting to $3.2 million. Within 3 days after the Approval
Date (as defined in the Assumption and Assignment Agreement) GGC is ordered to
pay to Shell the Prepetition Cure and the Postpetition Cure, the payment of
which shall cure all defaults under the Ethylene Contracts.
7. Upon execution of the Assumption and Assignment Agreement and
payment of the amounts set forth in paragraph 6, above, GGC shall be entitled to
delivery within a reasonable time of the product designated for delivery in
April, May, June and July 2002 under the Ethylene Contracts, that upon the
payment to Shell of the payment due in September, 2002, GGC will be entitled to
prompt delivery of product representing the product designated for
3
delivery during August, 2002 under the Ethylene Contracts, and that deliveries
and payments thereafter shall occur as provided for under the Ethylene
Contracts. Provided, however, if the Order is not entered until September 8,
2002, the payment for the product designated for delivery during August 2002
under the Ethylene Contracts shall be due as an additional Cure Claim payable
within three (3) days after the Approval Date.
8. Upon assumption and assignment of the Ethylene Contracts, the
Ethylene Contracts shall be fully enforceable according to their terms as if no
default had occurred, and GGC and Shell will bound by all terms of the Ethylene
Contracts.
Dated: August 19, 2002 /s/ Peter J. Walsh
Wilmington, Delaware ------------------------------
UNITED STATES BANKRUPTCY JUDGE
4