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Exhibit 10.9a
AMENDMENT
Dated as of December 8, 1994
This AMENDMENT among The Geon Company, a Delaware corporation
(the "SELLER"), the banks parties to the Amended and Restated Parallel Purchase
Agreement referred to below (the "ORIGINAL BANKS"), Corporate Receivables
Corporation, a California corporation ("CRC"), Xxxxxx, X.X., a New York limited
partnership ("XXXXXX", and together with CRC, the "Investors") and Citicorp
North America, Inc., a Delaware corporation ("CNAI"), as agent (the "AGENT")
for the Banks (as defined in the Parallel Purchase Agreement) and for the
Owners (as defined in the Purchase and Sale Agreement referred to below) under
the Parallel Purchase Agreement and the Purchase and Sale Agreement,
respectively.
PRELIMINARY STATEMENTS:
(1) The Seller, the Investors and the Agent have entered
into an Amended and Restated Trade Receivables Purchase and Sale Agreement
dated as of August 16, 1994 (the "PURCHASE AND SALE AGREEMENT"; the terms
defined therein being used herein as therein defined unless otherwise defined
herein).
(2) The Seller, the Banks, and the Agent have entered
into an Amended and Restated Parallel Purchase Agreement dated as of August 16,
1994 (the "PARALLEL PURCHASE AGREEMENT").
(3) The Seller and the Investors have agreed to amend the
Purchase and Sale Agreement as hereinafter set forth. The Seller and the Banks
have agreed to amend the Parallel Purchase Agreement as hereinafter set forth.
SECTION 1. AMENDMENT TO THE PURCHASE AND SALE AGREEMENT. The
Purchase and Sale Agreement is, effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 3 hereof,
hereby amended as follows:
(a) The definition of Purchase Limit in Section 1.01 is
amended in full as follows:
"PURCHASE LIMIT" means $85,000,000, as such amount
may be reduced pursuant to Section 2.03.
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SECTION 2. AMENDMENTS TO PARALLEL PURCHASE AGREEMENT. The
Parallel Purchase Agreement is, effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 3 hereof,
hereby amended as follows:
(a) The definition of Bank Commitment in Section 1.01(b)
is amended in full as follows:
"BANK COMMITMENT" of any Bank means (a) with respect
to each Original Bank the amount set forth opposite such
Original Bank's name as such Original Bank's Commitment as
indicated below or such amount as reduced by any
assignment agreement entered into between such Original Bank
and other Banks:
Original Bank Commitment
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Citibank, N.A. $15,087,500
NationsBank of North Carolina, N.A. $14,662,500
Bank of Montreal $10,625,000
The Bank of New York $10,625,000
Canadian Imperial Bank of Commerce $10,625,000
Xxxxxx Guaranty Trust Company $10,625,000
of New York
NBD Bank, N.A. $ 6,375,000
National City Bank $ 6,375,000
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$85,000,000;
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or (b) with respect to a Bank that has entered into an
assignment agreement, the amount set forth therein as such
Bank's Bank Commitment or such amount as reduced by an
assignment agreement entered into between such Bank and an
Eligible Assignee, in each case as reduced (or terminated)
pursuant to the next sentence. Any reduction (or termination)
of the Commitment pursuant to the terms of this Agreement
shall reduce ratably (or terminate) each Bank's Bank
Commitment.
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(b) The definition of "Commitment" in Section 1.01(b) is
amended in full as follows:
"Commitment" means $85,000,000, as such amount may be
reduced pursuant to Section 2.03.
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment shall
become effective when, and only when, on or before December 15, 1994, the Agent
shall have received counterparts of this Amendment executed by the Seller, all
of the Banks and the Investors or, as to any of the Banks or, as to either of
the Investors, advice satisfactory to the Agent that such Banks and Investors
have executed this Amendment, and Sections 1 and 2 hereof shall become
effective when, and only when, on or before December 15, 1994, the Agent shall
have additionally received all of the following documents, each document
(unless otherwise indicated) being dated the date of receipt thereof by the
Agent (which date shall be the same for all such documents), in form and
substance satisfactory to the Agent:
(a) Certified copies of (i) the resolutions of the Board
of Directors of the Seller approving this Amendment and the matters
contemplated hereby and thereby and (ii) all documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to this Amendment and the matters contemplated hereby and
thereby.
(b) A certificate of the Secretary or an Assistant
Secretary of the Seller certifying the names and true signatures of its
officers authorized to sign this Amendment.
(c) A favorable opinion of (i) in-house counsel for the
Seller and (ii) Xxxxxxxx, Xxxx and Xxxxx, special counsel to the
Seller, to the effect that this Amendment has been duly authorized,
executed and delivered by the Seller and confirming the opinions of
such counsel furnished on August 16, 1994 pursuant to Section 3.01(i)
of the Purchase and Sale Agreement and pursuant to Section 3.01(g) of
the Parallel Purchase Agreement, with references therein to the
Purchase and Sale Agreement and to the Parallel Purchase Agreement to
mean the Purchase and Sale Agreement and the Parallel Purchase
Agreement, respectively, as amended by this Amendment.
(d) A certificate signed by a duly authorized officer of
the Seller stating that:
(i) The representations and warranties contained in
Section 4 hereof are correct on and as of the date of
such certificate as though made on and as of such date, and
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(ii) No event has occurred and is continuing which
constitutes an Event of Termination or would constitute an
Event of Termination but for the requirement that notice be
given or time elapse or both.
SECTION 4. Representations and Warranties of the Seller. The
Seller represents and warrants as follows:
(a) The Seller 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 Seller
of this Amendment are within the Seller's corporate powers, have been
duly authorized by all necessary corporate action and do not contravene
(i) the Seller's charter or by-laws, (ii) law or any contractual
restriction binding on or affecting the Seller.
(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
Seller of this Amendment.
(d) This Amendment constitutes a legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance
with its terms.
(e) There is no pending or overtly threatened action,
suit, investigation, litigation or proceeding against or affecting the
Seller or any of its Subsidiaries, or the property of the Seller or of
any of its Subsidiaries, in any court, or before any arbitrator of any
kind, or before or by any governmental body, which, taking into account
its probability of success, may materially adversely affect the
financial condition the Seller or the Seller and its Consolidated
Subsidiaries taken as a whole (other than the litigation as described
on Schedule A hereto (the "Current Litigation")) or materially
adversely affect the ability of the Seller to perform its obligations
under this Amendment, or the Purchase and Sale Agreement or the
Parallel Purchase Agreement, each as amended hereby; 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 A hereto; neither the Seller nor any of its Subsidiaries is
in default with respect to any order of any court, arbitrator or
governmental body except for defaults with respect to orders of
governmental agencies which defaults are not material to the business
or operations of the Seller or any of its Subsidiaries.
SECTION 5. REFERENCE TO AND EFFECT ON THE PURCHASE AND SALE
AGREEMENT AND ON THE PARALLEL PURCHASE AGREEMENT. (a) Upon the effectiveness of
Sections 1 and 2 hereof, on and after the date hereof (i) each reference in the
Purchase and Sale Agreement to
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"this Agreement", "hereunder", "hereof" or words of like import referring to
the Purchase and Sale Agreement, and each reference in the other documents to
"the Purchase and Sale Agreement", "thereunder", "thereof", or words of like
import referring to the Purchase and Sale Agreement, shall mean and be a
reference to the Purchase and Sale Agreement as amended hereby; and (ii) each
reference in the Parallel Purchase Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Parallel Purchase Agreement,
and each reference in the other documents to "the Parallel Purchase Agreement",
"thereunder", "thereof" or words of like import referring to the Parallel
Purchase Agreement, shall mean and be a reference to the Parallel Purchase
Agreement as amended hereby.
(b) Except as specifically amended above, the Purchase
and Sale Agreement and the Parallel Purchase Agreement 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 Bank, either of the Investors or the Agent
under the Purchase and Sale Agreement, the Parallel Purchase Agreement or under
any of the other documents, or constitute a waiver of any provision of the
Purchase and Sale Agreement, the Parallel Purchase Agreement or any of the
other documents.
SECTION 6. COSTS AND EXPENSES. The Seller agrees to pay on
demand all costs and expenses of the 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 Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities hereunder and thereunder.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each 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 8. GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
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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
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Title: Asst. Treasurer
0000 Xxx Xxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxx 00000
(Cuyahoga County)
Attn: Secretary
Facsimile No.: (000) 000-0000
CITICORP NORTH AMERICA, INC.,
as Agent
By
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Title: Vice President
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Corporate Asset Funding Dept.
Facsimile: (000) 000-0000
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CORPORATE RECEIVABLES
CORPORATION
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By:
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Title: Vice President
XXXXXX, X.X.
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By:
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Title: Vice President
CITIBANK, N.A.
By
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Title: Vice President
NATIONSBANK, OF NORTH
CAROLINA, N.A.
By
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Title: Vice President
BANK OF MONTREAL
By
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Title: Director, U.S. Corporate Banking
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THE BANK OF NEW YORK
By
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Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE
By
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Title: Agent
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By
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Title: Vice President
NBD BANK, N.A.
By
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Title: Vice President
NATIONAL CITY BANK
By
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Title: Vice President
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SCHEDULE A
TO THE PURCHASE AND SALE AGREEMENT
AND PARALLEL PURCHASE AGREEMENT AMENDMENT
Xxxxxxxxxxx, Xxxxxxx x. BFG Slipped on ice, Pedricktown
Dublon, Inc. Unpaid invoices
Florida Adjustatrak Collection for Unpaid Invoices
Riverside International Non Payment for Goods Received
Krypton Corp d/b/a B&H Tool Unpaid Invoices
ERI Extrusion Monies due for Unpaid Goods
Bilcor Plastics Unpaid invoices due BFG
Action Extruded Unpaid invoices
Xxxxx'x Transfer/American Freight Unpaid freight bills
Overland Express Unpaid freight bills
Olympia Holding/P*I*E Unpaid tariffs
South Jersey Gas Dispute over gas
Westlake Monomers Breach/Right of first refusal
R.A.S. Welding Stripper vessels/pd not rec'x
Xxxxxx x. Xxxx Canada Inc. Breach of lease action/tires
Xxxxxxxxx, Xxxxxxx X. Landscape Balance due for landscaping service
Xxxxxx, Xxxxxxx x. BFG, Geon Sex discrimination/retaliation
Xxxxxxxx-Xxxxxx v. Geon, BFG Sex discrimination
Xxxxxxx City RCRA Cleanup Xxxxxxx City plant site
Xxxxxxx CERCLA Cleanup site, Xxxxxxx City, Xx
Xxxxx Flats Landfill Cleanup site, Morehead, KY
Water Withdrawal Permit Appeal
ISRA/ECRA Review
Boiler Permit Appeal Protective appeal of air permit
Xxxxx Industries Remediation
NESHAPS Violations (89-93) USEPA Information request
NESHAPS Info Request (Sec 114) Information Request
MSD Wastewater Permit
Xxxxxx, Xxxxx Exposure to VCM
Xxxxxxxx, Xxxxxx Vinyl chloride exposure
Xxxxxxxx, Xxxx Xxx x. Allied Chem Exposure to VCM
Xxxxxxx v. American Hoechst Exposure to toxic chemicals
Xxxxxxx v. Anco Insulation Asbestos exposure
Xxxxxx III, Xxxxxx Exposure unknown asbestos products
De xx Xxxxx, Manual Xxxxxxx Employee injury/XxXxxxx Plant
Xxxxxxx, Xxxxxxxxx Vehicle accident in Canada
Georgian, Xxxxxx Plaintiff auto struck by Geon employee
XxXxx, Xxxxxxxxx x. Xxxx Xxxxx Auto accident, company car
Climatech claim Alleged out-of-specification goods
XxXxxxx Release Release of VCM to air
Xxxxx Reporting Violation Sampling dispute with EPA
Operating Industries, Inc. Landfill Superfund site
Xxxxxxx v. BFG et al. Hit by train
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Xxxxxxxxxx x. Xxxx Contractor, chemical xxxxx
Xxxxx 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. Geon Fell. Injured.
