1
EXHIBIT 10.8a
AMENDMENT
Dated as of December 8, 1994
This AMENDMENT among The Geon Company, a Delaware corporation
(the "BORROWER"), the banks, financial institutions and institutional lenders
parties to the Credit Agreement referred to below (the "INSTITUTIONAL
LENDERS"), and Citibank, N.A. ("CITIBANK"), as administrative agent (the
"ADMINISTRATIVE AGENT") for the Lenders (as defined in the Credit Agreement),
and NationsBank of North Carolina, N.A., as co-agent (the "CO-AGENT")
thereunder
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Administrative Agent
and the Co-Agent have entered into a Credit Agreement dated as of August 16,
1994 (the "CREDIT AGREEMENT"; the terms defined therein being used herein as
therein defined unless otherwise defined herein).
(2) The Borrower and the lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction
of the conditions precedent set forth in Section 2 hereof, hereby amended as
follows:
(a) Section 2.05(b) is amended in full to read as
follows:
MANDATORY. The Commitments shall be permanently
reduced ratably in an aggregate amount of $80,000,000 on the
following dates in the aggregate amounts indicated:
Date Amount
---- ------
December 31, 1996 $25,000,000
June 30, 1997 55,000,000
PROVIDED that if the Borrower or any of its Subsidiaries
issues any public debt before June 30, 1997, on the date of
receipt of the proceeds of such debt issuance the Commitments
of the lenders shall be reduced ratably by an
2
2
amount equal to the lesser of (i) the net proceeds of such
debt issuance and (ii) the aggregate amount of the remaining
Commitment reductions set forth above. which Commitment
reductions shall be credited toward the Commitment reductions
set forth above in inverse order.
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall
become effective when, and only when, on or before December 15, 1994, the
Administrative Agent shall have received (a) counterparts of this Amendment
executed by the Borrower and all of the lenders or, as to any of the lenders,
advice satisfactory to the Administrative Agent that such lenders have executed
this Amendment and (b) a certificate signed by a duly authorized officer of the
Borrower, in form and substance satisfactory to the Administrative Agent and
dated the date of receipt thereof by the Administrative Agent, stating that:
(i) The representations and warranties contained
in Section 3 hereof are correct on and as of the date of such
certificate as though made on and as of such date, and
(ii) No event has occurred and is continuing which
constitutes an Event of Default or would constitute an Event
of Default but for the requirement that notice be given or
time elapse or both.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
indicated at the beginning of this Amendment.
(b) The execution, delivery and performance by the
Borrower of this Amendment and the Loan Documents, as amended hereby,
to which it is or is to be a party are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action
and do not contravene (i) the Borrower's charter or by-laws, (ii) law
or any contractual restriction binding on or affecting the Borrower.
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
the Borrower of this Amendment or any of the Loan Documents, as
amended hereby, to which it is or is to be a party.
(d) This Amendment and each of the other Loan Documents,
as amended hereby, to which the Borrower is a party constitute, and
each of the other Loan Documents to which the Borrower is to be a
party when delivered hereunder will
3
3
constitute, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective
terms.
(e) To the best of the Borrower's knowledge. there is no
pending or threatened action, Suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely
to have a Material Adverse Effect (other than the Disclosed Litigation
as described on Schedule 3.01(b) of the Credit Agreement and as
described on Schedule A hereto (collectively, the "Current
Litigation")) or (ii) purports to affect the legality, validity or
enforceability of this Amendment, the Credit Agreement as amended
hereby or any Note or the consummation of the transactions
contemplated hereby, and there has been no adverse change in the
status, or financial effect on the Borrower or any of its
Subsidiaries, of the Current Litigation from that described on
Schedule 3.01(b) of the Credit Agreement and on Schedule A hereto.
SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a)
Upon the effectiveness of Section 1 hereof, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit
Agreement and all other Loan Documents are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of any lender or the Administrative Agent under
any of the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and
amendment of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its rights
and responsibilities hereunder and thereunder.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each
4
4
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page of this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
5
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE GEON COMPANY
By
-------------------------------------
Title: Asst. Treasurer
CITIBANK, N.A.,
as Administrative Agent
By
-------------------------------------
Title: Vice President
NATIONSBANK, OF NORTH
CAROLINA, N.A.,
as Co-Agent
By
-------------------------------------
Title: Vice President
CITIBANK, N.A.
By /
-------------------------------------
Title: Vice President
NATIONSBANK OF NORTH
CAROLINA, N.A.
By
-------------------------------------
Title: Vice President
6
6
BANK OF MONTREAL
By
-------------------------------------
Title: Director, U.S. Corporate Banking
THE BANK OF NEW YORK
By
-------------------------------------
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE
By
-------------------------------------
Title: Agent
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By
-------------------------------------
Title: Vice President
NBD BANK, N.A.
By
-------------------------------------
Title: Vice President
NATIONAL CITY BANK
By
-------------------------------------
Title: Vice President
7
SCHEDULE A
TO THE CREDIT AGREEMENT AMENDMENT
Xxxxxxxxxx v. Geon Contractor, chemical xxxxx
Stazk v. Conoco et al. Exposure to VCM. Wrongful death.
Xxxxxxxx, Xxxxxx x. Conoco et al. Exposure to VCM.
Xxxxxx, Xxxxxxxxx x. BFGoodrich and Geon Birth defects/fetal exposure.
Xxxxxxx, Xxxxx x. BFGoodrich et al. Fell. Permanent injuries.
Xxxxxx, Xxxxxx et ux. v. BFG and Geon Angiosarcoma. Wrongful death.
Xxxxxx, Xxxxx x. Air Products et al. Class action. Conspiracy. Failure to warn.
Attinoto v. Xxxx XxXx. Injured.
