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EXHIBIT 10.1
WAIVER NO. 1
WAIVER NO. 1, 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:
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(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 c
