EXHIBIT 10.16
OMNIBUS AMENDMENT NO. 1
THIS OMNIBUS AMENDMENT NO. 1 (this "AMENDMENT") is entered into
as of October 15, 2002 by and among:
(a) Weatherproofing Technologies, Inc., a Delaware
corporation, DAP Products Inc., a Delaware corporation, The Testor
Corporation, an Ohio corporation, Zinsser Co., Inc., a New Jersey
corporation, Tremco Incorporated, an Ohio corporation, Rust-Oleum
Corporation, an Illinois corporation, The Euclid Chemical Company, an
Ohio corporation, and Republic Powdered Metals, Inc., an Ohio
corporation, individually and as successor by merger to Consolidated
Coatings Corporation, an Ohio corporation (each of the foregoing, an
"ORIGINATOR" and collectively, the "ORIGINATORS"),
(b) RPM Funding Corporation, a Delaware corporation ("SPV"),
(c) RPM, Inc., an Ohio corporation ("RPM"),
(d) Jupiter Securitization Corporation, a Delaware corporation
("JUPITER" or a "CONDUIT"), and Blue Ridge Asset Funding Corporation, a
Delaware corporation ("BLUE RIDGE" or a "CONDUIT"),
(e) Bank One, NA (Main Office Chicago), a national banking
association ("BANK ONE"), and its assigns (collectively, the "JUPITER
LIQUIDITY BANKS" and, together with Jupiter, the "JUPITER GROUP"), and
Wachovia Bank, National Association, a national banking association
("Wachovia"), and its assigns (collectively, the "BLUE RIDGE LIQUIDITY
BANKS" and, together with Blue Ridge, the "BLUE RIDGE GROUP"),
(f) Bank One, NA (Main Office Chicago), a national banking
association, in its capacity as agent for the Jupiter Group (the
"JUPITER AGENT" or a "CO-AGENT"), and Wachovia Bank, National
Association, a national banking association, in its capacity as agent
for the Blue Ridge Group (the "BLUE RIDGE AGENT" or a "CO-AGENT"),
(g) Bank One, NA (Main Office Chicago), a national banking
association, in its capacity as administrative agent for the Jupiter
Group, the Blue Ridge Group and each Co-Agent (in such capacity,
together with its successors and assigns, the "ADMINISTRATIVE AGENT"
and, together with each of the Co-Agents, the "AGENTS"), and
(h) RPM International Inc., a Delaware corporation
("RPM-DELAWARE"),
with respect to (i) the Receivables Sale Agreement dated as of June 6, 2002 by
and between the Originators and the SPV (the "RSA"), and (ii) the Receivables
Purchase Agreement dated as of
June 6, 2002 by and among the SPV, the Jupiter Group, the Blue Ridge Group, and
the Agents (the "RPA" and, together with the RSA, the "AGREEMENTS").
UNLESS DEFINED ELSEWHERE HEREIN, CAPITALIZED TERMS USED IN THIS AMENDMENT SHALL
HAVE THE MEANINGS ASSIGNED TO SUCH TERMS IN THE AGREEMENTS.
PRELIMINARY STATEMENTS
RPM desires to reincorporate in Delaware via a merger of RPM with
and into a newly formed Ohio merger subsidiary of RPM-Delaware (the
"REINCORPORATION").
Immediately after the Reincorporation, RPM-Delaware desires to
unconditionally assume RPM's obligations as Servicer and Performance
Guarantor under the Agreements and the other Transaction Documents
referenced therein (the "ASSUMPTION").
The parties are willing to permit the assumption by RPM-Delaware
of RPM's obligations under the Transaction Documents, and to release RPM
from further liability for such obligations, on the terms and subject to
the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the other
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Assumption and Release. By its signature below, effective
as of the Effective Time (hereinafter defined), RPM-Delaware hereby absolutely
and unconditionally assumes and agrees to become primarily liable for all of
RPM's representations, covenants, promises, indemnities and other obligations
under the Transaction Documents as initial Servicer and/or as the Performance
Guarantor, whether now existing, hereafter arising, absolute or contingent, and
each of the other parties hereto hereby releases RPM from further liability
therefor.
2. Amendments. From and after the Effective Time, all
references in the Agreements and other Transaction Documents to "RPM, Inc." or
"RPM" are hereby replaced with "RPM International Inc." and "RPM-Delaware,"
respectively, and all references to the Performance Guarantor shall be deemed to
be references to RPM-Delaware.
3. Representations. In order to induce the other parties
hereto to agree to the assumption, release and amendments set forth above,
RPM-Delaware hereby represents and warrants to the other parties hereto as
follows:
(a) Existence and Power. RPM-Delaware is duly organized,
validly existing and in good standing under the laws of Delaware. RPM-Delaware
is duly qualified to do business and is in good standing as a foreign
corporation, and has and holds all corporate power and all governmental
licenses, authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is conducted except where
the failure to so qualify or so hold could not reasonably be expected to have a
Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution and
Delivery. The execution and delivery by RPM-Delaware of this Amendment, and the
performance of its obligations hereunder, are within its corporate powers and
authority and have been duly authorized by all necessary corporate action on its
part. This Amendment has been duly executed and delivered by RPM-Delaware.
(c) No Conflict. The execution and delivery by RPM-Delaware of
this Amendment, and the performance of the obligations assumed by it hereunder
do not contravene or violate (i) its certificate of incorporation or by-laws,
(ii) any law, rule or regulation applicable to it, (iii) any restrictions under
any agreement, contract or instrument to which it is a party or by which it or
any of its property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and do not
result in the creation or imposition of any Adverse Claim on assets of
RPM-Delaware or its Subsidiaries (except as created under the Transaction
Documents) except, in any case, where such contravention or violation could not
reasonably be expected to have a Material Adverse Effect.
4. Conditions Precedent; Effective Time. The assumption and
amendments will become effective immediately after the latest to occur of the
following (the "EFFECTIVE TIME"):
(a) Consummation of the Reincorporation;
(b) Receipt by the Agent of executed copies of this Amendment,
duly executed by each of the parties hereto;
(c) Receipt by the Agent of a Performance Undertaking in the
form of Annex A hereto duly executed by RPM-Delaware;
(d) Receipt by the Agent of a copy of RPM-Delaware's
certificate of incorporation certified by the Delaware Secretary of
State;
(e) Receipt by the Agent of a good standing certificate for
RPM-Delaware issued by the Secretary of State of Delaware;
(f) Receipt by the Agent of a certificate of the Secretary or
Assistant Secretary of RPM-Delaware certifying: (i) a copy of the
resolutions of the Board of Directors of RPM-Delaware, authorizing
RPM-Delaware's execution, delivery and performance of this Amendment and
the other documents to be delivered by it hereunder; (ii) the names and
signatures of the officers authorized on its behalf to execute this
Amendment and the other documents to be delivered by it hereunder and
(iii) a copy of RPM-Delaware's by-laws; and
(g) Receipt by the Agent of a favorable opinion of legal
counsel for RPM-Delaware, reasonably acceptable to the Agents, in
substantially the form of the opinion given with respect to RPM at the
time of the initial purchase under the
RPA, which addresses the following matters with respect to RPM-Delaware:
(i) due incorporation, valid existence and good standing, (ii) requisite
corporate authority to conduct its business, (iii) due authorization,
execution and delivery of this Amendment, the RPA as amended hereby and
the Performance Undertaking described in clause (b) above, (iv) no
requirement for governmental action or filings, (v) non-contravention of
laws, regulations, Organic Documents or material agreements, (vi) no
creation or imposition of any Adverse Claim on its assets, (vii)
enforceability of the RPA as amended hereby and the Performance
Undertaking described in clause (c) above, and (viii) absence of
material adverse litigation or proceedings.
5.1. Bankruptcy Petition. With respect to each Conduit, each of
the other parties hereto hereby covenants and agrees that, prior to the date
that is one year and one day after the payment in full of all outstanding senior
indebtedness of such Conduit, it will not institute against, or join any other
Person in instituting against, such Conduit any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
5.2. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF ILLINOIS.
5.3. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT OR ANY OTHER TRANSACTION
DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
5.4. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns (including any trustee in bankruptcy).
5.5. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed and delivered by their duly authorized officers or signatories as
of the date hereof.
DAP PRODUCTS INC.,
THE TESTOR CORPORATION,
ZINSSER CO., INC.,
TREMCO INCORPORATED,
RUST-OLEUM CORPORATION,
THE EUCLID CHEMICAL COMPANY AND
REPUBLIC POWDERED METALS, INC.
By: /s/ P. Kelly Tompkins
------------------------------------
Name:
Title:
WEATHERPROOFING TECHNOLOGIES, INC.
By: /s/ Jeffrey L. Korach
------------------------------------
Name:
Title:
RPM FUNDING CORPORATION
By: /s/ Keith R. Smiley
-----------------------------------------
Name:
Title:
RPM, INC.
By: /s/ Keith R. Smiley
-----------------------------------------
Name:
Title:
RPM INTERNATIONAL INC.
By: /s/ P. Kelly Tompkins
-----------------------------------------
Name:
Title:
ADDRESS:
RPM International Inc.
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
Attention: Treasurer
Phone: (330) 273-8837
Fax: (330) 225-6574
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JUPITER SECURITIZATION CORPORATION
By: /s/ Sherri Gerner
-----------------------------------------
Name: Sherri Gerner
Title: Authorized Signer
BANK ONE, NA (MAIN OFFICE CHICAGO), INDIVIDUALLY, AS JUPITER AGENT AND AS
ADMINISTRATIVE AGENT
By: /s/ Sherri Gerner
-----------------------------------------
Name: Sherri Gerner
Title: Director, Capital Markets
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BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, NATIONAL ASSOCIATION, ATTORNEY-IN FACT
By: /s/ Darrell R. Baber
-----------------------------------------
Name: Darrell R. Baber
-------------------------------------
Title: Managing Director
------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION, INDIVIDUALLY AND AS BLUE RIDGE AGENT
By: /s/ Kenny Karpowicz
-----------------------------------------
Name: Kenny Karpowicz
-------------------------------------
Title: Vice President
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