Exhibit 10.2
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of September 25, 2003 (this
"Amendment"), to the Receivables Purchase Agreement, dated as of May 6, 2003 (as
amended to the date hereof, the "Receivables Purchase Agreement"), among Polyone
Funding Corporation, a Delaware corporation (the "Seller"), Polyone Corporation,
an Ohio corporation ("PolyOne"), as the Servicer (as therein defined), the
Purchasers (as therein defined), Citicorp USA, Inc., a Delaware corporation, as
administrative agent (the "Agent") for the Purchasers and the other Owners (as
therein defined), Citibank, N.A., a national association, as issuing bank (the
"Issuing Bank"), and National City Commercial Finance, Inc., an Ohio
corporation, as the syndication agent. Capitalized terms used herein but not
defined herein are used as defined in the Receivables Purchase Agreement.
W I T N E S S E T H:
WHEREAS, the Seller, the Servicer, the Purchasers, the Issuing
Bank and the Agent are party to the Receivables Purchase Agreement and the
undersigned Purchasers constitute the Required Purchasers;
WHEREAS, the Seller has requested that the Agent and the
Purchasers constituting the Required Purchasers agree to amend the Receivables
Purchase Agreement to reduce the Interest Coverage Ratio the Servicer is
required to maintain; and
WHEREAS, pursuant to Section 11.01 (Amendments, Etc.) of the
Receivables Purchase Agreement, the consent of the Required Purchasers is
required to amend the provisions of the Receivables Purchase Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the premises and the
covenants and obligations contained herein the parties hereto agree as follows:
SECTION 1. AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT. Section 5.07 of
the Receivables Purchase Agreement is, effective as of the Amendment Effective
Date and subject the satisfaction (or due waiver) of the conditions set forth in
Section 2 (Conditions Precedent to the Effectiveness of this Amendment) hereof,
hereby amended by deleting the table therein in its entirety and replacing it
with the following table:
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FISCAL QUARTER RATIO
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September 30, 2003 0.50 to 1
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December 31, 2003 0.65 to 1
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March 31, 2004 0.75 to 1
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June 30, 2004 1.00 to 1
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September 30, 2004 1.50 to 1
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December 31, 2004 1.90 to 1
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March 31, 2005 2.00 to 1
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June 30, 2005 2.25 to 1
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September 30, 2005 and thereafter 2.5 to 1
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SECTION 2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT
This Amendment shall become effective as of the date first
written above when, and only when, each of the following conditions precedent
shall have been satisfied (the "Amendment Effective Date") or duly waived by the
Agent:
(a) CERTAIN DOCUMENTS
The Agent shall have received each of the following, each dated the
Amendment Effective Date (unless otherwise agreed by the Agent), in form and
substance satisfactory to the Agent and in sufficient copies for each Purchaser:
(i) this Amendment, duly executed by the Seller, the Servicer,
the Agent and Purchasers constituting Required Purchasers; and
(ii) such additional documentation as the Agent may reasonably
require.
(b) FEES AND EXPENSES PAID
The Seller shall have paid to the Agent:
(i) on behalf of each Purchaser approving this Amendment on or
prior to 5:00 pm on September 25, 2003, an amendment fee equal to
one-eighth of one percent (0.125%) of the aggregate amount of the
Commitments of each consenting Purchaser and each other fee payable in
connection with this Amendment; and
(ii) all other obligations of the Seller due under the
Transaction Documents, after giving effect to this Amendment, on or before
the later of the date hereof and the Amendment Effective Date and all
costs and expenses of the Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment and all other
Transaction Documents entered into in connection herewith (including,
without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent with respect thereto and all other Transaction
Documents) and all other costs, expenses and fees due under any
Transaction Document.
SECTION 3. REPRESENTATIONS AND WARRANTIES
On and as of the date hereof and as of the Amendment Effective Date,
after giving effect to this Amendment, the Seller hereby represents and warrants
to the Agent and each Purchaser as follows:
(a) this Amendment has been duly authorized, executed and delivered by
the Seller and the Servicer and constitutes a legal, valid and binding
obligation of the Seller and the Servicer, enforceable against the Seller and
the Servicer in accordance with its terms and the Receivables Purchase Agreement
as amended by this Amendment and constitutes the legal, valid and binding
obligation of the Seller and the Servicer, enforceable against the Seller and
the Servicer in accordance with its terms;
(b) each of the representations and warranties contained in Article IV
(Representations and Warranties) of the Receivables Purchase Agreement, the
other Transaction Documents or in any certificate, document or financial or
other statement furnished at any time under or in connection therewith is true
and correct in all material respects on and as of the date hereof and the
Amendment Effective Date, in each case as if made on and as of such date and
except to the extent that
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such representations and warranties specifically relate to a specific date, in
which case such representations and warranties shall be true and correct in all
material respects as of such specific date; provided, however, that references
therein to the "Receivables Purchase Agreement" shall be deemed to refer to the
Receivables Purchase Agreement as amended hereby and after giving effect to the
consents and waivers set forth herein;
(c) after giving effect to this Amendment, no Potential Event of
Termination or Event of Termination (except for those that may have been duly
waived) shall have occurred and be continuing, either on the date hereof or on
the Amendment Effective Date; and
(d) no litigation has been commenced against the Seller, the Servicer,
or any Originator or any of their respective Subsidiaries seeking to restrain or
enjoin (whether temporarily, preliminarily or permanently) the performance of
any action by the Seller, the Servicer, or an Originator required or
contemplated by this Amendment, the Receivables Purchase Agreement or any
Transaction Document, in each case as amended hereby (if applicable).
SECTION 4. REFERENCE TO THE EFFECT ON THE TRANSACTION DOCUMENTS
(a) As of the Amendment Effective Date, each reference in the
Receivables Purchase Agreement to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import, and each reference in the other Transaction
Documents to the Receivables Purchase Agreement (including, without limitation,
by means of words like "thereunder," "thereof" and words of like import), shall
mean and be a reference to the Receivables Purchase Agreement as amended hereby,
and this Amendment and the Receivables Purchase Agreement shall be read together
and construed as a single instrument. Each of the table of contents and lists of
Exhibits and Schedules of the Receivables Purchase Agreement shall be amended to
reflect the changes made in this Amendment as of the Amendment Effective Date.
(b) Except as expressly amended hereby or specifically waived above,
all of the terms and provisions of the Receivables Purchase Agreement and all
other Transaction Documents are and shall remain in full force and effect and
are hereby 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 the Purchasers, Issuing Bank or the Agent under any of the
Transaction Documents, nor constitute a waiver or amendment of any other
provision of any of the Transaction Documents or for any purpose except as
expressly set forth herein.
(d) This Amendment is a Transaction Document.
SECTION 5. EXECUTION IN COUNTERPARTS
This Amendment may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed counterpart by
telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 6. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the law of the State of New York.
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SECTION 7. SECTION TITLES
The section titles contained in this Amendment are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto, except when used to reference a section.
SECTION 8. NOTICES
All communications and notices hereunder shall be given as provided in
the Transaction Documents.
SECTION 9. SEVERABILITY
The fact that any term or provision of this Agreement is held invalid,
illegal or unenforceable as to any person in any situation in any jurisdiction
shall not affect the validity, enforceability or legality of the remaining terms
or provisions hereof or the validity, enforceability or legality of such
offending term or provision in any other situation or jurisdiction or as applied
to any person
SECTION 10. SUCCESSORS
The terms of this Amendment shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
SECTION 11. WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY OTHER TRANSACTION
DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed by their respective officers thereunto duly authorized, as
of the date first above written.
POLYONE FUNDING CORPORATION,
as Seller
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President
POLYONE CORPORATION,
as Servicer
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Treasurer
CITICORP USA, INC.,
as Agent and Purchaser
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as Syndication Agent and Purchaser
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Purchaser
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
[Signature Page To Amendment]
FLEET CAPITAL CORPORATION,
as a Purchaser
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
GMAC COMMERCIAL FINANCE LLC,
as a Purchaser
By: /s/ Xxxx Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: Managing Director
XXXXXXX XXXXX CAPITAL,
a division of Xxxxxxx Xxxxx Business
Financial Services, Inc.,
as an Initial Purchaser
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
LASALLE BUSINESS CREDIT, LLC,
as an Initial Purchaser
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PNC BANK, N.A.,
as an Initial Purchaser
By: /s/ Xxxxxxxxxx XxxXxxxxx
--------------------------------
Name: Xxxxxxxxxx XxxXxxxxx
Title: Assistant Vice President
ORIX BUSINESS CREDIT GROUP,
A DIVISION OF
ORIX FINANCIAL SERVICES, INC.,
as an Initial Purchaser
By: /s/ D. Xxxxx Xxxxx
--------------------------------
Name: D. Xxxxx Xxxxx
Title: Vice President
[Signature Page To Amendment]
U.S. BANK NATIONAL ASSOCIATION,
as an Initial Purchaser
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: AVP
WHITEHALL BUSINESS CREDIT CORPORATION,
as an Initial Purchaser
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Duly Authorized Signatory
[Signature Page To Amendment]
