Exhibit 10.4
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RPM INTERNATIONAL, INC.
----------------
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
----------------
Dated as of August 23, 2002
Re:
Note Purchase Agreement dated as of November 15, 2001
and
$15,000,000 6.12% Senior Notes, Series A,
due November 15, 2004
and
$10,000,000 6.61% Senior Notes, Series B,
due November 15, 2006
and
$30,000,000 7.30% Senior Notes, Series C,
due November 15, 2008
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. DESCRIPTION OF ASSUMED OBLIGATIONS AND REORGANIZATION..................................1
SECTION 2. ASSIGNMENT AND ASSUMPTION; INDEMNIFICATION; CONSENT....................................2
Section 2.1. Assignment of Obligations..............................................................2
Section 2.2. Assumption of Obligations..............................................................2
Section 2.3. Indemnification........................................................................2
Section 2.4. Consent................................................................................2
SECTION 3. EFFECTIVE DATE.........................................................................2
SECTION 4. CONDITIONS TO ASSIGNMENT AND ASSUMPTION................................................3
Section 4.1. Representations and Warranties.........................................................3
Section 4.2. Performance; No Default................................................................3
Section 4.3. Compliance Certificates................................................................3
Section 4.4. Opinion of Counsel.....................................................................3
Section 4.5. Payment of Fee.........................................................................3
Section 4.6. Payment of Special Counsel Fees........................................................4
Section 4.7. Private Placement Number...............................................................4
Section 4.8. Proceedings and Documents..............................................................4
Section 4.9. Changes in Corporate Structure.........................................................4
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................4
Section 5.1. Organization; Power and Authority......................................................4
Section 5.2. Authorization, etc.....................................................................4
Section 5.3. Compliance with Laws, Other Instruments, etc...........................................5
Section 5.4. Governmental Authorizations, etc.......................................................5
Section 5.5. Disclosure.............................................................................5
Section 5.6. Other Indebtedness.....................................................................5
Section 5.7. Additional Representations and Warranties..............................................5
Section 5.8. Reorganization.........................................................................5
SECTION 6. AMENDMENTS TO NOTE PURCHASE AGREEMENT..................................................6
Section 6.1. Amendment to Schedule B................................................................6
Section 6.2. Amendment to Exhibit 1.................................................................6
SECTION 7. MISCELLANEOUS..........................................................................6
-i-
Section 7.1. Successors and Assigns.................................................................6
Section 7.2. Severability...........................................................................7
Section 7.3. Counterparts...........................................................................7
Section 7.4. Governing Law..........................................................................7
Signatures........................................................................................................8
SCHEDULE A -- NAMES OF HOLDERS
SCHEDULE 5.15 -- EXISTING DEBTS; FUTURE LIENS
EXHIBIT 1(a) -- Form of 6.12% Senior Note, Series A, due November 15, 2004
EXHIBIT 1(b) -- Form of 6.61% Senior Note, Series B, due November 15, 2006
EXHIBIT 1(c) -- Form of 7.30% Senior Note, Series C, due November 15, 2008
EXHIBIT 4.4 -- Form of Opinion of Counsel to the Company
-ii-
RPM INTERNATIONAL, INC.
2628 Pearl Road
Medina, Ohio 44258
Re:
Note Purchase Agreement dated as of November 15, 2001
and
$15,000,000 6.12% Senior Notes, Series A,
due November 15, 2004
and
$10,000,000 6.61% Senior Notes, Series B,
due November 15, 2006
and
$30,000,000 7.30% Senior Notes, Series C,
due November 15, 2008
Dated as of
August 23, 2002
TO THE HOLDERS OF THE CAPTIONED NOTES OF RPM, INC.
LISTED IN THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
RPM INTERNATIONAL, INC., a Delaware corporation (the "Company"), and
RPM, Inc., an Ohio corporation ("RPM"), hereby agree with the holders of the
Notes (as defined below) listed in the attached Schedule A as follows:
SECTION 1. DESCRIPTION OF ASSUMED OBLIGATIONS AND REORGANIZATION.
Pursuant to a Note Purchase Agreement dated as of November 15, 2001
(the Note Purchase Agreement as amended by this Agreement (and as assumed by the
Company pursuant hereto) and as further amended or supplemented from time to
time, the "Note Purchase Agreement") between RPM and certain institutional
investors named therein, RPM heretofore issued and sold $15,000,000 6.12% Senior
Notes, Series A, due November 15, 2004 and $10,000,000 6.61% Senior Notes,
Series B, due November 15, 2006 and $30,000,000 7.30% Senior Notes, Series C,
due November 15, 2008 (as assumed by the Company pursuant to this Agreement,
collectively the "Notes"). Capitalized terms used herein without definition are
used as defined in Schedule B to the Note Purchase Agreement; references to a
"Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule or an
Exhibit attached to this Assignment, Assumption and Amendment Agreement
(hereinafter this or the "Agreement").
Pursuant to a proposed corporate reorganization (i) the shareholders of
RPM will transfer all of the outstanding shares of capital stock of RPM to the
Company in exchange for all of the outstanding shares of capital stock of the
Company, (ii) RPM will distribute to the Company
RPM International, Inc. Assignment, Assumption and Amendment Agreement
substantially all of its assets and (iii) RPM will become a Subsidiary of the
Company (the "Reorganization").
The consummation of the Reorganization requires the prior written
consent of the holders of Notes, and as a condition to granting such prior
written consent, the holders of Notes have required, among other things, that
the Company enter into this Agreement.
SECTION 2. ASSIGNMENT AND ASSUMPTION; INDEMNIFICATION; CONSENT.
Section 2.1. Assignment of Obligations. RPM hereby irrevocably and
unconditionally assigns (the "Assignment") on and as of the Effective Date all
of its right, title and interest in and to the Note Purchase Agreement and its
obligations under the Notes to the Company.
Section 2.2. Assumption of Obligations. The Company for good and
valuable consideration, the receipt of which is hereby acknowledged, for the
benefit of each of the holders from time to time of the Notes, hereby
irrevocably and unconditionally assumes and agrees to be bound by, and comply
with on and as of the Effective Date, each of the covenants, terms and
provisions of the Note Purchase Agreement and the Notes, including without
limitation the payment in full of the principal of, interest on, and Make-Whole
Amount, if any, from time to time due thereon and outstanding thereunder as
fully and as completely as if the Company were the original issuer thereunder
and a party thereto (including the assumption of all accrued and unpaid interest
on the Notes from and after May 15, 2002, the date of the last interest payment
made by RPM) (hereinafter referred to as the "Assumption").
Section 2.3. Indemnification. The Company and RPM shall pay, indemnify
and save harmless each holder of Notes from and against any and all liabilities,
costs and expenses, claims, demands or judgments arising from or out of the
assumption by the Company of the obligations of RPM under the Notes and the Note
Purchase Agreement, including, without limitation, any income tax owed by the
holders of Notes as a result of the issuance of new Notes by the Company in
exchange for the Notes originally issued by RPM constituting a taxable event for
income tax purposes. The indemnification contained in this Section 2.3 shall
survive the payment or transfer of any Note and the termination of the Note
Purchase Agreement.
Section 2.4. Consent. Upon satisfaction of the conditions set forth in
Sections 3 and 4 hereof, the holders of Notes, as evidenced by their execution
and delivery of this Agreement, hereby consent to the Reorganization and the
Assignment and Assumption as evidenced by this Agreement.
SECTION 3. EFFECTIVE DATE.
The Assignment and the Assumption shall become effective on the date
when the merger of RPM Merger Sub, an Ohio corporation and wholly owned
subsidiary of the Company with and into RPM is effective (the "Effective Date");
provided that the conditions set forth in Section 4 have been satisfied on or
prior to the Effective Date and that the Company has delivered to Chapman and
Cutler, your special counsel, on or before the Effective Date new Notes executed
by the Company of the same series and in a principal amount equal to the unpaid
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RPM International, Inc. Assignment, Assumption and Amendment Agreement
principal amount of the Notes originally issued by RPM, payable to the same
holders (or their nominees). The new Notes shall bear interest at the same rate,
shall have the same maturity and the same semi-annual payments of interest and
payments of principal as the original Notes and shall be dated May 15, 2002, the
date of the most recent interest payment by RPM. The Notes originally issued by
RPM shall be deemed cancelled on the Effective Date and each holder agrees to
promptly return to the Company the original Notes issued by RPM following the
Effective Date.
SECTION 4. CONDITIONS TO ASSIGNMENT AND ASSUMPTION.
The assumption of the obligations of RPM under the Note Purchase
Agreement and the Notes pursuant to this Agreement and the consent of the
holders granted pursuant to Section 2.4 hereof are subject to the satisfaction,
on or prior to the Effective Date, of the following terms and conditions set
forth in this Section 4:
Section 4.1. Representations and Warranties. The representations and
warranties of the Company in this Agreement shall be true and correct when made
and on the Effective Date.
Section 4.2. Performance; No Default. The Company shall have performed
and complied with all agreements and conditions contained in this Agreement
required to be performed or complied with by it on or prior to the Effective
Date, and after giving effect to the issue of the new Notes by the Company, no
Default or Event of Default shall have occurred and be continuing.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate of the Company. The Company shall have
delivered to you an Officer's Certificate, dated the Effective Date, certifying
that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate of the Company. The Company shall have
delivered to you a certificate certifying as to the resolutions attached thereto
and other corporate proceedings relating to the authorization, execution and
delivery of the Notes and the Agreement.
Section 4.4. Opinion of Counsel. Each holder shall have received a
opinion in form and substance satisfactory to such holder, dated the Effective
Date (a) from Calfee, Halter & Griswold, counsel for the Company, covering the
matters set forth in Exhibit 4.4 and covering such other matters incident to the
transactions contemplated hereby as the holder or the holders' counsel may
reasonably request (and the Company hereby instruct its counsel to deliver such
opinion to each holder).
Section 4.5. Payment of Fee. On or before the Effective Date, the
Company shall have paid to each holder of Notes a fee equal to 5 basis points on
the aggregate principal amount of the Notes held by such holder.
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RPM International, Inc. Assignment, Assumption and Amendment Agreement
Section 4.6. Payment of Special Counsel Fees. Without limiting the
provisions of the Note Purchase Agreement, the Company shall have paid, on or
before the Effective Date, the fees, charges and disbursements of Chapman and
Cutler, your special counsel to the extent reflected in a statement of such
counsel rendered to the Company at least one Business Day prior to the Effective
Date.
Section 4.7. Private Placement Number. A Private Placement number
issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the
Securities Valuation Office of the National Association of Insurance
Commissioners) shall have been obtained for the new Notes.
Section 4.8. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or other copies
of such documents as they may reasonably request.
Section 4.9. Changes in Corporate Structure. Other than the
transactions contemplated in connection with the Reorganization, neither the
Company nor RPM has changed its jurisdiction of incorporation or been a party to
any merger or consolidation or succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements of RPM furnished to the holders of the Notes.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each holder that:
Section 5.1. Organization; Power and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and assume the
obligations of RPM under the Note Purchase Agreement and the Notes and to
perform the provisions hereof and thereof.
Section 5.2. Authorization, etc. This Agreement and the assumption of
the obligations of RPM under the Note Purchase Agreement and the Notes have been
duly authorized by all necessary corporate action on the part of the Company,
this Agreement has been duly executed and delivered by the Company, and this
Agreement and the Note Purchase Agreement after giving effect to the Assumption
constitute, and upon execution and delivery thereof each Note will constitute, a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting
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RPM International, Inc. Assignment, Assumption and Amendment Agreement
the enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
Section 5.3. Compliance with Laws, Other Instruments, etc. The
execution, delivery and performance by the Company of this Agreement and the
assumption of the obligations of RPM under the Note Purchase Agreement and the
Notes will not (i) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of the
Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their properties may be bound or
affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any Subsidiary
or (iii) violate any provision of any law, statute or other rule or regulation
of any Governmental Authority applicable to the Company or any Subsidiary.
Section 5.4. Governmental Authorizations, etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Company of this Agreement or the assumption of the obligations of RPM
under the Note Purchase Agreement and the Notes.
Section 5.5. Disclosure. The Company and/or RPM have delivered to each
holder written material relating to the transactions contemplated hereby. This
Agreement, the documents, certificates or other writings delivered to the
holders by or on behalf of the Company or RPM in connection with the
transactions contemplated hereby, taken as a whole, do not contain any untrue
statement of a Material fact or omit to state any Material fact necessary to
make the statements therein not misleading in light of the circumstances under
which they were made.
Section 5.6. Other Indebtedness. All Debt of RPM outstanding on the
Effective Date (other than Debt having an unpaid principal amount not in excess
of $2,000,000 in any one case and $10,000,000 in the aggregate for all such
Debt) will be assigned by RPM to the Company and such Debt shall be assumed by
the Company.
Section 5.7. Additional Representations and Warranties. Each of the
representations and warranties set forth in Section 5 of the Note Purchase
Agreement is true and correct with the same force and effect as if each such
representation or warranty were fully set forth herein except (i) for changes in
the Schedule of Debt of RPM which shall be amended to read as set forth in
Schedule 5.15 to this Agreement and as of the Effective Date there shall be no
Material change in the amount of such Debt, and (ii) changes in the Schedule of
Subsidiaries (Schedule 5.4) resulting from ordinary course mergers and
dissolution of certain immaterial Subsidiaries.
Section 5.8. Reorganization. As of the Effective Date, the
Reorganization will have been duly authorized by all necessary corporate action
on the part of the Company and RPM, as the case may be, and all necessary
approvals by the stockholders of the Company and RPM, as the case may be, will
have been obtained and the Reorganization will not violate any provisions
-5-
RPM International, Inc. Assignment, Assumption and Amendment Agreement
of any law or any order of any court or governmental authority or agency and
will not conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute a default under the Articles of Incorporation or
By-laws of the Company or RPM, as the case may be, or any indenture or other
agreement or instrument to which the Company or RPM, as the case may be, is a
party or by which it may be bound or result in the imposition of any Liens or
encumbrances on any property of the Company or RPM, as the case may be.
SECTION 6. AMENDMENTS TO NOTE PURCHASE AGREEMENT.
Upon the execution and delivery of this Agreement, the Note Purchase
Agreement shall be and hereby is amended as follows:
Section 6.1. Amendment to Schedule B. (a) The following definitions
contained in Schedule B to the Note Purchase Agreement shall be and are hereby
amended in their entirety and restated as follows:
"Company" means RPM International, Inc., a Delaware
corporation.
"Notes" shall have the meaning assigned thereto in Section 1
hereof, as amended by the Assignment and Assumption and as hereafter
amended from time to time.
(b) Schedule B to the Note Purchase Agreement shall be and is hereby
amended by the addition thereto of the following new definitions:
"Agreement" shall mean the Note Purchase Agreement dated as of
November 15, 2001 between RPM, Inc. and the institutional investors
named therein, as amended by the Assignment and Assumption and as
hereafter amended from time to time.
"Assignment and Assumption" shall mean that certain
Assignment, Assumption and Amendment Agreement dated as of August 23,
2002 by and among the Company, RPM, Inc. and the holders of the Notes.
"RPM, Inc." shall mean RPM, Inc., an Ohio corporation.
Section 6.2. Amendment to Exhibit 1. Exhibits 1(a), 1(b) and 1(c) to
the Note Purchase Agreement shall be and hereby are amended in their entirety
and restated to read as set forth in Exhibits 1(a), 1(b) and 1(c) to this
Agreement.
SECTION 7. MISCELLANEOUS.
Section 7.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns and inure to
the benefit of each successive holder of a Note whether so expressed or not.
-6-
RPM International, Inc. Assignment, Assumption and Amendment Agreement
Section 7.2. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 7.3. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by fewer than all, but together signed by all, of the
parties hereto.
Section 7.4. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
* * * * *
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RPM International, Inc. Assignment, Assumption and Amendment Agreement
The execution hereof by the Company and RPM shall constitute a contract
between the Company and RPM for the uses and purposes hereinabove set forth.
This Agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
Very truly yours,
RPM INTERNATIONAL, INC.
By /s/ Keith R. Smiley
-----------------------------------------
Name: Keith R. Smiley
Title: Treasurer
RPM, INC.
By /s/ Keith R. Smiley
-----------------------------------------
Name: Keith R. Smiley
Title: Vice President, Treasurer
- 8 -
RPM International, Inc. Assignment, Assumption and Amendment Agreement
Accepted as of the first date written above.
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Jerry D. Zinkula
By /s/ Daniel C. Leimbach
Authorized Signatories
RPM International, Inc. Assignment, Assumption and Amendment Agreement
Accepted as of the first date written above.
ALLSTATE LIFE INSURANCE COMPANY OF
NEW YORK
By /s/ Jerry D. Zinkula
By /s/ Daniel C. Leimbach
Authorized Signatories
RPM International, Inc. Assignment, Assumption and Amendment Agreement
Accepted as of the first date written above.
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By /s/ Mark W. Poeppelman
Name: Mark W. Poeppelman
Title: Vice President
RPM International, Inc. Assignment, Assumption and Amendment Agreement
Accepted as of the first date written above.
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Mark W. Poeppelman
Name: Mark W. Poeppelman
Title: Vice President
RPM International, Inc. Assignment, Assumption and Amendment Agreement
Accepted as of the first date written above.
AMERICAN HERITAGE LIFE INSURANCE COMPANY
By /s/ Jerry D. Zinkula
By /s/ Daniel C. Leimbach
Authorized Signatories
RPM International, Inc. Assignment, Assumption and Amendment Agreement
Accepted as of the first date written above.
J. ROMEO & CO., as nominee for MONY
Life Insurance Company
By /s/ Michael Kurzyna
------------------------------
Name: Michael Kurzyna
Title: Vice President
NAMES OF HOLDERS
ALLSTATE LIFE INSURANCE COMPANY
3075 SANDERS ROAD, STE G5D
NORTHBROOK, ILLINOIS 60062-7127
ALLSTATE LIFE INSURANCE COMPANY/
NORTHBROOK LIFE INSURANCE COMPANY-TRUST
3075 Sanders Road, STE G5D
Northbrook, Illinois 60062-7127
ALLSTATE LIFE INSURANCE COMPANY
OF NEW YORK
3075 Sanders Road, STE G5D
Northbrook, Illinois 60062-7127
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
NATIONWIDE LIFE INSURANCE COMPANY
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
AMERICAN HERITAGE LIFE INSURANCE COMPANY
c/o Allstate Life Insurance Company
3075 Sanders Road, STE G5D
Northbrook, Illinois 60062-7127
MONY LIFE INSURANCE COMPANY
1740 Broadway
New York, New York 10019
SCHEDULE A
(to Assignment, Assumption and Amendment Agreement)
EXISTING DEBTS; FUTURE LIENS
LOAN DESCRIPTION MATURITY DATE AMOUNT LIEN
DEBT GREATER THAN $5,000,000
RPM, Inc. 7.0% Unsecured Senior Note due
June 15, 2005*
7.0% Unsecured Senior Note due June 15, 2005 June 15, 2005 $ 150,000,000 No
RPM, Inc. TIERS Certificates (LANCEs)* March 1, 2008 $ 100,000,000 No
Semiannual interest payment due each March 1st and
September 1st
$500M-5 Year Revolving Credit Agreement (Bank Group)* July 14, 2005
Syndicate of Banks $70,000,000 No
Syndicate of Banks $ 125,000,000 No
Syndicate of Banks $ 100,000,000 No
$125M Receivables Securitization Program July 6, 2003
Bank One $60,000,000 Yes
Wachovia $40,000,000 Yes
$55M Private Placement Notes*
6.12% Unsecured Senior Notes, Series A November 15, 2004 $15,000,000 No
6.61% Unsecured Senior Notes, Series B November 15, 2006 $10,000,000 No
7.30% Unsecured Senior Notes, Series C November 15, 2008 $30,000,000 No
$15M-2 Year Multi-Currency Credit Agreement (KBC Bank)** December 31, 2002
RPM Holdings UK - GBP 2,250,000 @ 1.5637 $ 3,518,325 No
- ------------------------------
* Agreements to be assumed by RPM International, Inc.
** This agreement is to be cancelled upon the reincorporation and renegotiated
with RPM International, Inc.
SCHEDULE 5.15
(to Assignment, Assumption and Amendment Agreement)
$3.7M 6.75% Unsecured Senior Note due and insurance August 3, 2003
company*
6.75% Unsecured Senior Note (installment) August 1, 2002 $ 1,714,285 No
6.75% Unsecured Senior Note (final installment) August 3, 2003 $ 1,714,284 No
-----------
Total of Debt greater than $5,000,000 $ 706,946,894
-------------
DEBT LESS THAN $5,000,000
Other notes and mortgages payable at various rates of interest $ 7,796,048
-----------
Grand Total Outstanding Debt $ 714,742,942
-------------
5.15-2
[FORM OF SERIES A NOTE]
RPM INTERNATIONAL, INC.
6.12% SENIOR NOTE, SERIES A, DUE NOVEMBER 15, 2004
No. [_______] [Date]
$[__________] PPN ___________
FOR VALUE RECEIVED, the undersigned, RPM INTERNATIONAL, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to [_____________________] or
registered assigns, the principal sum of [______________] DOLLARS on November
15, 2004 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 6.12% per annum from
the date hereof, payable semi-annually, on the fifteenth day of May and November
in each year and at maturity, commencing with the May or November next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semi-annually as aforesaid (or,
at the option of the registered holder hereof, on demand), at a rate per annum
from time to time equal to the greater of (i) 8.12% or (ii) 2% over the rate of
interest publicly announced by JPMorgan Chase Bank from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of JPMorgan Chase Bank in New York, New York or
at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of November
15, 2001 between RPM, Inc. and the respective purchasers named therein (as
assumed by the Company pursuant to the Assignment, Assumption and Amendment
Agreement dated as of August 23, 2002 and as further amended, supplemented or
modified from time to time, the "Note Purchase Agreement"), and this Note is
entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the
Exhibit 1(a)
(to Assignment, Assumption and Amendment Agreement)
purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
This Note is also subject to optional prepayment, in whole or from time
to time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than such
State.
RPM INTERNATIONAL, INC.
By______________________________________
Name: __________________________________
Title: _________________________________
E-1(a)-2
[FORM OF SERIES B NOTE]
RPM INTERNATIONAL, INC.
6.61% SENIOR NOTE, SERIES B, DUE NOVEMBER 15, 2006
No. [_______] [Date]
$[__________] PPN ___________
FOR VALUE RECEIVED, the undersigned, RPM INTERNATIONAL, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to [_____________________] or
registered assigns, the principal sum of [______________] DOLLARS on November
15, 2006 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 6.61% per annum from
the date hereof, payable semi-annually, on the fifteenth day of May and November
in each year and at maturity, commencing with the May or November next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semi-annually as aforesaid (or,
at the option of the registered holder hereof, on demand), at a rate per annum
from time to time equal to the greater of (i) 8.61% or (ii) 2% over the rate of
interest publicly announced by JPMorgan Chase Bank from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of JPMorgan Chase Bank in New York, New York or
at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of November
15, 2001 between RPM, Inc. and the respective purchasers named therein (as
assumed by the Company pursuant to the Assignment, Assumption and Amendment
Agreement dated as of August 23, 2002 and as further amended, supplemented or
modified from time to time, the "Note Purchase Agreement"), and this Note is
entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement.
EXHIBIT 1(b)
(to Assignment, Assumption and Amendment Agreement)
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is also subject to optional prepayment, in whole or from time
to time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than such
State.
RPM INTERNATIONAL, INC.
By_____________________________________
Name: _________________________________
Title: ________________________________
E-1(b)-2
[FORM OF SERIES C NOTE]
RPM INTERNATIONAL, INC.
7.30% SENIOR NOTE, SERIES C, DUE NOVEMBER 15, 2008
No. [_______] [Date]
$[__________] PPN ___________
FOR VALUE RECEIVED, the undersigned, RPM INTERNATIONAL, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to [_____________________] or
registered assigns, the principal sum of [______________] DOLLARS on November
15, 2008 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 7.30% per annum from
the date hereof, payable semi-annually, on the fifteenth day of May and November
in each year and at maturity, commencing with the May or November next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semi-annually as aforesaid (or,
at the option of the registered holder hereof, on demand), at a rate per annum
from time to time equal to the greater of (i) 9.30% or (ii) 2% over the rate of
interest publicly announced by JPMorgan Chase Bank from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of JPMorgan Chase Bank in New York, New York or
at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of November
15, 2001 between RPM, Inc. and the respective purchasers named therein (as
assumed by the Company pursuant to the Assignment, Assumption and Amendment
Agreement dated as of August 23, 2002 and as further amended, supplemented or
modified from time to time, the "Note Purchase Agreement"), and this Note is
entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreement and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreement.
Exhibit 1(c)
(to Assignment, Assumption and Amendment Agreement)
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is also subject to optional prepayment, in whole or from time
to time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than such
State.
RPM INTERNATIONAL, INC.
By___________________________________
Name: _______________________________
Title: ______________________________
E-1(c)-2
DESCRIPTION OF OPINION OF COUNSEL
TO THE COMPANY AND RPM
The closing opinion of Calfee, Halter & Griswold, counsel to the
Company, which is called for by Section 4.4 of the Assignment, Assumption and
Amendment Agreement, shall be dated the Effective Date and addressed to the
holders, shall be satisfactory in scope and form to each holder and shall be to
the effect that:
1. The Company is a corporation, duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation, has
the corporate power and the corporate authority to execute and perform the
Assignment, Assumption and Amendment Agreement and perform the Note Purchase
Agreement and to issue the Notes and has the full corporate power and the
corporate authority to conduct the activities in which it is now engaged and is
duly licensed or qualified and is in good standing as a foreign corporation in
each jurisdiction in which the character of the properties owned or leased by it
or the nature of the business transacted by it makes such licensing or
qualification necessary except in jurisdictions where the failure to be so
qualified or licensed would not have a material adverse affect on the business
of the Company.
2. The Assignment, Assumption and Amendment Agreement has been duly
authorized by all necessary corporate action on the part of the Company and RPM,
has been duly executed and delivered by the Company and RPM and constitutes the
legal, valid and binding contract of the Company and RPM enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such principles
is considered in a proceeding in equity or at law).
3. After giving effect to the Assignment, Assumption and Amendment
Agreement, the Note Purchase Agreement constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law).
4. The Notes have been duly authorized by all necessary corporate
action on the part of the Company, have been duly executed and delivered by the
Company and constitute the legal, valid and binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
5. No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any governmental body, Federal or
state, is necessary in connection with the execution and delivery of the
Assignment, Assumption and Amendment Agreement or the Notes.
Exhibit 4.4
(to Assignment, Assumption and Amendment Agreement)
6. The issuance and sale of the Notes and the execution, delivery and
performance by the Company and RPM of the Assignment, Assumption and Amendment
Agreement do not conflict with or result in any breach of any of the provisions
of or constitute a default under or result in the creation or imposition of any
Lien upon any of the property of the Company pursuant to the provisions of the
Articles of Incorporation or By-laws of the Company or RPM or any agreement or
other instrument known to such counsel to which the Company or RPM is a party or
by which the Company or RPM may be bound.
7. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Assignment, Assumption and Amendment Agreement
do not, under existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an indenture under
the Trust Indenture Act of 1939, as amended.
8. The Company is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
The opinion of Calfee, Halter & Griswold shall cover such other matters
relating to the sale of the Notes as each holder may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and other
officers of the Company.
E-4.4-2