Exhibit 10.6
SECOND SUPPLEMENTAL INDENTURE
Dated as of August 26, 2002,
by and among
RPM, INC.
RPM INTERNATIONAL INC.
and
BANK ONE, N.A. (FORMERLY KNOWN AS THE FIRST NATIONAL BANK OF CHICAGO)
as Trustee,
relating to the
INDENTURE,
dated as of June 1, 1995
by and between
RPM, INC.,
and
The First National Bank of Chicago, as Trustee,
which secures
7% Senior Notes due June 15, 2005
as supplemented by
FIRST SUPPLEMENTAL INDENTURE,
dated March 5, 1998
by and between
RPM, INC.,
and
The First National Bank of Chicago, as Trustee,
which secures
Liquid Asset Notes with Coupon Exchange (Lance) Due 2008
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of August 26,
2002 (this "Second Supplemental Indenture"), by and among RPM, INC., a
corporation duly organized and existing under the laws of the State of Ohio, and
having its principal business office in Medina, Ohio ("RPM"), RPM INTERNATIONAL,
INC., a corporation duly organized and existing under the laws of the State of
Delaware, and having its principal business office in Medina, Ohio ("RPM
International"), as transferee successor to the assets of RPM, Inc.
substantially as an entirety, and BANK ONE, N.A. (formerly known as The First
National Bank of Chicago), a national banking association duly organized and
existing under the laws of the United States, in its capacity as trustee, having
its principal corporate trust office in Chicago, Illinois (the "Trustee")
supplements that certain Indenture, dated as of June 1, 1995, as heretofore
amended by that certain First Supplemental Indenture, dated as of March 5, 1998
(the Indenture, as so amended by the First Supplemental Indenture, the
"Indenture"), by and between RPM and the Trustee. Words and terms used as
defined words and terms herein and not otherwise defined herein shall have the
meanings given them in the Indenture.
WITNESSETH:
WHEREAS: (x) pursuant to the Indenture, RPM issued its 7%
Senior Notes due June 15, 2005 and (y) pursuant to the Indenture, as amended by
the First Supplemental Indenture, RPM issued its Liquid Asset Notes with Coupon
Exchange ("Lances") Due 2008;
WHEREAS, pursuant to an Agreement and Plan of Merger by and
among RPM, RPM International, and a newly formed merger subsidiary of RPM
International ("Newco"), Newco will merge into RPM on and as of the Effective
Date (as defined herein below) and each of the common shares of RPM will be
converted into the right to receive one share of the RPM International (the
"Merger Transaction");
WHEREAS, in connection with the Merger Transaction, RPM will
also on and as of Effective Date transfer the stock of certain of its operating
subsidiaries to RPM International (which will in turn transfer such stock
ownership to new intermediate holding companies wholly-owned by RPM
International) and retain the stock of certain other operating companies (the
"Asset Transfer" and, together with the Merger Transaction, the "Transaction");
WHEREAS, Section 801 of the Indenture provides that RPM may
transfer its properties and assets substantially as an entirety to any Person,
provided that the successor Person meets certain conditions precedent provided
in the Indenture, including but not limited to the assumption of the due and
punctual payment of the Securities and the performance of every other Indenture
covenant;
WHEREAS, Section 802 of the Indenture provides that upon any
such transfer and assumption, the successor Person shall succeed to, and be
substituted for, the Company with the same effect as if such successor had been
named as the Company therein; and thereafter, RPM will be released from all
obligations and covenants under the Indenture, the Securities and the Coupons;
and
WHEREAS, Section 901 of the Indenture provides that , from
time to time and at any time and without the consent or concurrence of any
Holder, RPM and the Trustee may execute a Supplemental Indenture for any one or
more of the purposes set forth in Section 901 thereof, including, without
limitation, (x) to evidence the succession of another Person to the Company, the
assumption by such successor of the covenants of the Company contained in the
Indenture and in the Securities or (y) to make any amendment provided no such
amendment shall materially adversely affect the interests of the Holders of any
Securities then Outstanding.
NOW, THEREFORE, for and in consideration of the premises and
other consideration the receipt of which is hereby acknowledged, it is mutually
agreed as follows:
SECTION 1 ASSIGNMENT TO, AND ASSUMPTION BY, RPM INTERNATIONAL.
RPM hereby conveys, transfers and assigns to RPM International on and
as of the Effective Date all of its right, title and interest in and to the
Indenture as amended by the First Supplemental Indenture and this Second
Supplemental Indenture. RPM International hereby agrees on and after the
Effective Date to be bound, as successor by assignment to RPM, by all of the
terms and conditions applicable to, and covenants of RPM under, (i) the
Indenture, as amended by the First Supplemental Indenture and this Second
Supplemental Indenture and (ii) the Securities issued by RPM under the Indenture
as amended, all to the extent provided therein. RPM International hereby (x)
assumes on and after the Effective Date, for the benefit of RPM, the Trustee,
each Holder and each other party to or beneficiary of the Indenture, as amended,
all of the obligations of RPM under (i) the Indenture, as amended and (ii) the
Securities, including the due and punctual payment of the principal of, any
premium and interest on and any Additional Amounts with respect to, all the
Securities and the performance of every other covenants of the Indenture on the
part of RPM to be performed or observed and (y) agrees on and after the
Effective Date to provide for conversion or exchange rights in accordance with
the provisions of the Securities.
SECTION 2. RELEASE OF RPM.
RPM International and the Trustee hereby acknowledge and agree that, as
of the Effective Date, RPM International shall assume all of the obligations of
RPM under the Indenture as described therein, RPM International will succeed to,
and be substituted for, and may exercise every right and power of, RPM under the
Indenture with the same force and effect as if RPM International had been named
as the Company therein. Pursuant to the terms of Section 802 of the Indenture,
each of RPM International and the Trustee hereby acknowledge and agree that on
and after the Effective Date, and provided all of the conditions provided for in
Section 4 hereof have been satisfied, RPM will be released from all obligations
and covenants applicable to RPM under the Indenture and under the Securities.
SECTION 3. EFFECTIVE DATE. This Second
Supplemental Indenture shall become effective on the date when the Transaction
is effective; provided that, upon the occurrence of the Transaction, the
conditions set forth in Section 4 have been satisfied (the "Effective Date").
SECTION 4. CONDITIONS PRECEDENT. The
effectiveness of this Second Supplemental Indenture is subject to the
satisfaction, as of the Effective Date, of the following terms:
(A) NO DEFAULT. Immediately after giving effect to
the Transaction, no Event of Default, or event which, after notice or lapse of
time, or both, would become an Event of Default, shall have occurred and be
continuing.
(B) OFFICER'S CERTIFICATE. RPM International shall
have delivered to the Trustee an Officer's Certificate, dated as of the
Effective Date, certifying that such Transaction and this Second Supplement
Indenture comply with Article Eight of the Indenture and that all conditions
precedent provided in the Indenture relating to such transaction have been
complied with.
(C) OPINION OF COUNSEL. The Trustee shall have
received an Opinion of Counsel, dated as of the Effective Date, to the effect
that such Transaction and this Second Supplement Indenture comply with Article
Eight of the Indenture and that all conditions precedent provided in the
Indenture relating to such transaction have been complied with and that the
execution of this Second Supplemental Indenture is authorized or permitted by
the Indenture.
SECTION 5. COUNTERPARTS. This Second Supplemental Indenture
may be executed in multiple counterparts, each of which shall be regarded for
all purposes as an original and all of which shall constitute but one and the
same instrument.
SECTION 6. EFFECT OF SUPPLEMENT ON INDENTURE. Upon the
execution of this Second Supplemental Indenture by the parties hereto, the
Indenture, as supplemented thereby shall remain in full force and effect. The
Indenture, as supplemented by the First Supplemental Indenture and this Second
Supplemental Indenture, is in all respects ratified and confirmed, and this
Second Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided
SECTION 7. GOVERNING LAW. This Second Supplemental Indenture
shall be governed by the laws of the State of New York, without giving effect to
the conflict of law principles thereof.
[balance of page left blank intentionally]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed, all as of the day and year first above written.
[SEAL] RPM, INC.
/s/ P. Kelly Tompkins By: /s/ Keith R. Smiley
----------------------- -------------------------------------
Attest: P. Kelly Tompkins Title: Vice President, Treasurer
Vice President, General -------------------------------
Counsel and Secretary
[SEAL] RPM INTERNATIONAL INC.
/s/ P.Kelly Tompkins By: /s/ Keith R. Smiley
------------------------ -------------------------------------
Attest: P. Kelly Tompkins Title: Treasurer
Secretary -------------------------------
[SEAL] BANK ONE, N.A. (formerly known as The
First National Bank of Chicago), as
Trustee
Attest: /s/ Mietka Collins By: /s/ Renee Johnson
------------------------------------
Mietka Collins Renee Johnson
Account Representative Title: Vice President
-------------------------------
STATE OF OHIO )
: SS.:
COUNTY OF MEDINA )
On the 26th day of August, 2002, before me personally came
Keith R. Smiley, to me known, who, being by me duly sworn, did depose and say
that he is a Vice President & Treasurer of RPM, INC., a corporation organized
and existing under the laws of the State of Ohio, one of the persons described
in and who executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporation's
seal; that it was so affixed by authority of the Board of Directors of the
corporation; and that he signed his name thereto by like authority
/s/ Karin J. Owen
-------------------------------
Notary Public
[NOTARIAL SEAL] Karin J. Owen
Notary Public, State of Ohio
My Commission Expires 8-29-2006
(Recorded in Medina County)
STATE OF OHIO )
: SS.:
COUNTY OF MEDINA )
On the 26th day of August, 2002, before me personally came
Keith R. Smiley, to me known, who, being by me duly sworn, did depose and say
that he is a Treasurer of RPM INTERNATIONAL INC., a corporation organized and
existing under the laws of the State of Ohio, one of the persons described in
and who executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporation's
seal; that it was so affixed by authority of the Board of Directors of the
corporation; and that he signed his name thereto by like authority
/s/ Karin J. Owen
-------------------------------
Notary Public
[NOTARIAL SEAL] Karin J. Owen
Notary Public, State of Ohio
My Commission Expires 8-29-2006
(Recorded in Medina County)
STATE OF ILLINOIS )
: SS.:
COUNTY OF COOK )
On the 26 day of August, 2002, before me personally came
Renee Johnson, to me known, who, being by me duly sworn, did depose and say
that s/he is a Vice President of Bank One, N.A., a national banking association
organized and existing under the laws of the United States of America, one of
the persons described in and who executed the foregoing instrument; that s/he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporation's seal; that it was so affixed by authority of the Board of
Directors of the corporation; and that s/he signed her/his name thereto by like
authority
/s/Caesar Frank Castro
-------------------------------
Notary Public
[NOTARIAL SEAL] "OFFICIAL SEAL"
Caesar Frank Castro
Notary Public, State of Illinois
Cook County
My Commission Expires June 6, 2005