Exhibit 10.5
CONFORMED COPY
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT dated as of July 12, 2002 to the Five-Year Credit Agreement
dated as of July 14, 2000 (the "CREDIT AGREEMENT"), among RPM, INC. (the
"COMPANY"), the LENDERS party thereto (the "LENDERS") and JPMORGAN CHASE BANK
(formerly THE CHASE MANHATTAN BANK), as Administrative Agent (the
"ADMINISTRATIVE AGENT").
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Credit Agreement (i) to
reflect a reincorporation in Delaware and corporate reorganization, by replacing
RPM, Inc. as Borrower with its new parent company, RPM International Inc., and
(ii) to add a domestic subsidiary debt covenant;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein with respect to the Credit Agreement which
is defined in the Credit Agreement has the meaning assigned to such term in the
Credit Agreement. Each reference to "hereof', "hereunder", "herein" and "hereby"
and each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Credit Agreement shall, after this
Amendment becomes effective, refer to the Credit Agreement as amended hereby.
SECTION 2. Consent to Assignment by RPM, Inc. to RPM International Inc.
The Lenders consent to the assignment by RPM, Inc. of all of its rights and
obligations under the Credit Agreement and the Notes to RPM International Inc.,
and agree that each reference to the "Company" shall, after this Amendment
becomes effective, be a reference to RPM International Inc. together with its
successors.
SECTION 3. Section 9.08. Section 9.08 of the Credit Agreement is
amended by deleting the word "Ratio" from the title thereof, inserting "(a)" at
the beginning thereof, and adding the following clause (b) at the end thereof:
(b) The Company will not permit Indebtedness of its Subsidiaries that
are organized under the laws of the United States of America, any State thereof
or the District of Columbia, determined on a combined basis exclusive of
Indebtedness to the Company and Indebtedness pursuant to receivables
securitizations incurred in accordance with the terms and conditions of this
Agreement, on any date to exceed 15% of consolidated shareholders' equity of the
Company and its Subsidiaries on such date.
SECTION 4. Representations of Company. The Company represents and
warrants that (i) the representations and warranties of the Company set forth in
Article 8 of the Credit Agreement will be true and correct on and as of the
Amendment Effective Date (as defined below) to the same extent as they would be
required to be under Section 7.02(b) of Credit Agreement on the occasion of any
borrowing and (ii) no Default (as defined in the Credit Agreement) will have
occurred and be continuing on such date.
SECTION 5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 7. Effectiveness. This Amendment shall become effective on the
date when the merger of RPM Merger Sub, a newly formed Ohio corporation and
wholly-owned subsidiary of RPM International Inc., with and into RPM, Inc. is
effective (the "AMENDMENT EFFECTIVE DATE") if the Administrative Agent shall
have received (i) from each of the Company and the Lenders a counterpart hereof
signed by such party or facsimile or other written confirmation (in form
satisfactory to the Administrative Agent) that such party has signed a
counterpart hereof, (ii) from the Company for the account of each Lender which
has executed and delivered to the Administrative Agent a counterpart hereof or
such other satisfactory written confirmation by 12:00 Noon on July 26, 2002, an
amendment fee equal to .05% of such Lender's Commitment (as in effect at 12:00
Noon on July 26, 2002), and (iii) from the Company evidence satisfactory to the
Administrative Agent (which shall include an opinion of counsel to the Company)
that the rights and obligations of RPM, Inc. under the Credit Agreement and the
Notes and with respect to all other Indebtedness of RPM, Inc. outstanding on the
Amendment Effective Date (including, without limitation, the 7.0% Senior Notes
due 2005, the LANCEs due 2008 and the Senior Notes dated as of November 15,
2001) have been or are substantially simultaneously on the Amendment Effective
Date being assigned by RPM, Inc. to RPM International Inc.
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TN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
RPM, [NC.
By: /s/ Keith R. Smiley
------------------------------------
Name: Keith R. Smiley
Title: Vice President, Treasurer and
Assistant Secretary
JPMORGAN CHASE BANK
By: /s/ Stacey Haimes
------------------------------------
Name: Stacey Haimes
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Marianne T. Meil
------------------------------------
Name: Marianne T. Meil
Title: Vice President
NATIONAL CITY BANK
By: /s/ James C. Ritchie
------------------------------------
Name: James C. Ritchie
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Chitt Swamidasan
------------------------------------
Name: Chitt Swamidasan
Title: Principal
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BANK ONE, NA (successor by
merger to BANK ONE MICHIGAN)
By: /s/ Glenn A. Currin
------------------------------------
Name: Glenn A. Currin
Title: Managing Director
WACHOVIA BANK, N.A.
By: /s/ David K. Hall
------------------------------------
Name: David K. Hall
Title: Vice President
MELLON BANK, N.A.
By: /s/ Mark F. Johnston
------------------------------------
Name: Mark F. Johnston
Title: Vice President
FIFTH THIRD BANK
By: /s/ Roy C. Lanctot
------------------------------------
Name: Roy C. Lanctot
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Peter L. Chinnici
------------------------------------
Name: Peter L. Chinnici
Title: Senior Vice President and
Group Head
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SUNTRUST BANK
By: /s/ William C. Humphries
-----------------------------
Name: William C. Humphries
Title: Director
US BANK, N.A. (formerly known as
FIRSTAR BANK, N.A.)
By: /s/ Christine C. Gencer
-----------------------------
Name: Christine C. Gencer
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Kenneth McDonnell
-----------------------------
Name: Kenneth McDonnell
Title: Assistant Vice President
KBC BANK, N.Y.
By: /s/ Jean-Pierre Diels
-----------------------------
Name: Jean-Pierre Diels
Title: First Vice President
By: /s/ Eric Raskin
-----------------------------
Name: Eric Raskin
Title: Vice President
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UFJ BANK LIMITED
By: /s/ Kenneth C. Eichwald
-----------------------------
Name: Kenneth C. Eichwald
Title: Senior Vice President
FIRST COMMERCIAL BANK
By: /s/ Bruce Ju
-----------------------------
Name: Bruce Ju
Title: General Manager & VP
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