EXHIBIT 10.1
WAIVER XX. 0
XXXXXX XX. 0, dated as of June 29, 2005 (this "WAIVER"), to the
Receivables Purchase Agreement, dated as of May 6, 2003 (as amended by that
certain Amendment No. 1 dated as of September 25, 2003, that certain Amendment
No. 2 dated as of August 5, 2004 and as otherwise amended, supplemented or
modified 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 (in such capacity, 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 Business
Credit, 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.
WITNESSETH:
WHEREAS, the Seller, the Servicer, the Purchasers, the Issuing Bank
and the Agent are party to the Receivables Purchase Agreement and the
undersigned Purchasers (the "Consenting Purchasers") constitute the Required
Purchasers;
WHEREAS, the Servicer has notified the Agent that although the
Servicer's fiscal quarter ending June 30, 2005 is not yet complete, the Servicer
believes that, upon the completion of such fiscal quarter, it may be determined
that the Servicer will be unable to comply with the covenant contained in
Section 5.07(a) (Interest Coverage Ratio) (the "Specified Financial Covenant")
of the Receivables Purchase Agreement for such fiscal quarter (the "Specified
Period");
WHEREAS, the Seller and the Servicer have requested that the Agent
and the Purchasers constituting the Required Purchasers waive compliance with
the Specified Financial Covenant; and
WHEREAS, pursuant to Section 11.01 (Amendments, Etc.) of the
Receivables Purchase Agreement, the consent of the Required Purchasers is
required to waive 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. WAIVER. Effective as of the Waiver Effective Date (as defined
below) and subject to the satisfaction (or due waiver) of the conditions set
forth in Section 2 (Conditions Precedent to Effectiveness) hereof, the
Consenting Purchasers, constituting the Required Purchasers, and the Agent
hereby waive compliance by the Servicer during the Specified Period with the
Specified Financial Covenant for all purposes under the Receivables Purchase
Agreement and the other Transaction Documents.
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Waiver 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 "WAIVER EFFECTIVE
DATE") or duly waived by the Agent:
(a) CERTAIN DOCUMENTS. The Agent shall have received each of the
following, each dated the Waiver 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 Waiver, duly executed by the Seller, the Servicer,
the Agent and Purchasers constituting Required Purchasers; and
(ii) such customary additional documentation as the Agent may
reasonably require.
(b) FEES AND EXPENSES PAID. The Seller shall have paid to the Agent
all obligations of the Seller due and payable under the Transaction Documents as
of the date hereof, after giving effect to this Waiver, on or before the later
of the date hereof and the Waiver Effective Date and, as set forth in Section 4
(Costs and Expenses) hereof, all costs and expenses of the Agent in connection
with the preparation, reproduction, execution and delivery of this Waiver and
all other Transaction Documents entered into in connection herewith (other than
the reasonable fees and out-of-pocket expenses of counsel for the Agent in
connection with this Waiver and the other Transaction Documents, in respect of
which fees and out-of-pocket expenses the Agent shall present an invoice to the
Seller and the Seller shall pay promptly (and in any event within five Business
Days) after the Waiver Effective Date).
SECTION 3. REPRESENTATIONS AND WARRANTIES. On and as of the date hereof
and as of the Waiver Effective Date, after giving effect to this Waiver, each of
the Seller (as to itself) and the Servicer (as to itself) hereby represents and
warrants to the Agent and each Purchaser as follows:
(a) this Waiver 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, subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and to general equitable principles, and the Receivables Purchase
Agreement, as modified by this Waiver, 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, subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and to general equitable principles;
(b) each of the representations and warranties made by the Seller or
the Servicer, as the case may be, 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 by or on behalf of such
Person is true and correct in all material respects on and as of the date
hereof, as if made on and as of the date hereof and except to the extent that
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 modified by the waiver set forth herein; and
(c) after giving effect to this Waiver, 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 Waiver Effective Date.
SECTION 4. COSTS AND EXPENSES
The Seller hereby agrees to pay upon receipt of a written invoice
therefor in accordance with the terms of Section 11.04 (Costs and Expenses) of
the Receivables Purchase Agreement all costs and expenses of the Agent in
connection with the preparation, reproduction, execution and delivery of this
Waiver and all other Transaction Documents entered into in connection herewith
(including, without limitation, the reasonable fees and out-of-pocked expenses
of counsel for the Agent with respect thereto and all other Transaction
Documents).
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SECTION 5. REFERENCE TO THE EFFECT ON THE TRANSACTION DOCUMENTS
As of the Waiver 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 or otherwise
modified hereby, and this Waiver and the Receivables Purchase Agreement shall be
read together and construed as a single instrument.
(a) Except as expressly modified 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.
(b) The execution, delivery and effectiveness of this Waiver 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.
(c) This Waiver is a Transaction Document.
SECTION 6. EXECUTION IN COUNTERPARTS
This Waiver 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 or email shall be effective as delivery of a manually executed
counterpart of this Waiver.
SECTION 7. GOVERNING LAW
This Waiver shall be governed by and construed in accordance with
the law of the State of New York.
SECTION 8. SECTION TITLES
The section titles contained in this Waiver 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 9. NOTICES
All communications and notices hereunder shall be given as provided
in the Transaction Documents.
SECTION 10. 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
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legality of such offending term or provision in any other situation or
jurisdiction or as applied to any person
SECTION 11. SUCCESSORS
The terms of this Waiver shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
SECTION 12. WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WITH RESPECT TO THIS WAIVER OR ANY OTHER TRANSACTION
DOCUMENT.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver 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: _____________________________
Name:
Title:
POLYONE CORPORATION,
as Servicer
By: _____________________________
Name:
Title:
CITICORP USA, INC.,
as Agent and Purchaser
By: _____________________________
Name:
Title:
NATIONAL CITY BUSINESS CREDIT, INC.,
as Syndication Agent and
Purchaser
By: _____________________________
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Purchaser
By: _____________________________
Name:
Title:
FLEET CAPITAL CORPORATION,
as a Purchaser
By: _____________________________
Name:
Title:
GMAC COMMERCIAL FINANCE LLC,
as a Purchaser
By: _____________________________
Name:
Title:
XXXXXXX XXXXX CAPITAL,
a division of Xxxxxxx Xxxxx
Business Financial Services,
Inc.,
as an Initial Purchaser
By: _____________________________
Name:
Title:
LASALLE BUSINESS CREDIT, LLC,
as an Initial Purchaser
By: _____________________________
Name:
Title:
PNC BANK, N.A.,
as an Initial Purchaser
By: _____________________________
Name:
Title:
ORIX FINANCIAL SERVICES, INC.,
as an Initial Purchaser
By: _____________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as an Initial Purchaser
By: _____________________________
Name:
Title:
XXXXXXX BUSINESS CREDIT CORPORATION,
as an Initial Purchaser
By: _____________________________
Name:
Title:
