Exhibit 10.18.1
AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT (this "AMENDMENT") is entered into as of May
27, 2003 by and among:
(a) RPM Funding Corporation, a Delaware corporation
("SELLER"),
(b) RPM International Inc., a Delaware corporation ("RPM-
DELAWARE"),
(c) Jupiter Securitization Corporation, a Delaware corporation
("JUPITER" or a "CONDUIT"), and Blue Ridge Asset Funding Corporation, a
Delaware corporation ("BLUE RIDGE" or a "CONDUIT"),
(d) 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"),
(e) 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"), and
(f) 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"),
with respect to the Receivables Purchase Agreement dated as of June 6, 2002 by
and among the Seller, the Jupiter Group, the Blue Ridge Group, and the Agents
(the "RPA").
UNLESS DEFINED ELSEWHERE HEREIN, CAPITALIZED TERMS USED IN THIS AMENDMENT SHALL
HAVE THE MEANINGS ASSIGNED TO SUCH TERMS IN the RPA.
WITNESSETH:
WHEREAS, the parties wish to amend the RPA as 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. Amendments.
1.1. The definition of "LIQUIDITY TERMINATION DATE" in the RPA
is hereby amended and restated in its entirety to read as follows:
"LIQUIDITY TERMINATION DATE" means May 25, 2004.
1.2. SECTION 10.3 OF THE RPA is hereby amended and restated in
its entirety to read as follows:
Section 10.3. Increased Cost and Reduced Return. If after the
date hereof, any Funding Source shall be charged any fee, expense or
increased cost on account of the adoption of any applicable law, rule
or regulation (including any applicable law, rule or regulation
regarding capital adequacy), any accounting principles or any change in
any of the foregoing, or any change in the interpretation or
administration thereof by the Financial Accounting Standards Board
("FASB"), any governmental authority, any central bank or any
comparable agency charged with the interpretation or administration
thereof, or compliance with any request or directive (whether or not
having the force of law) of any such authority or agency (a "REGULATORY
CHANGE"): (i) that subjects any Funding Source to any charge or
withholding on or with respect to any Funding Agreement or a Funding
Source's obligations under a Funding Agreement, or on or with respect
to the Receivables, or changes the basis of taxation of payments to any
Funding Source of any amounts payable under any Funding Agreement
(except for changes in the rate of tax on the overall net income of a
Funding Source or taxes excluded by Section 10.1) or (ii) that imposes,
modifies or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with
or for the account of a Funding Source, or credit extended by a Funding
Source pursuant to a Funding Agreement or (iii) that imposes any other
condition the result of which is to increase the cost to a Funding
Source of performing its obligations under a Funding Agreement, or to
reduce the rate of return on a Funding Source's capital as a
consequence of its obligations under a Funding Agreement, or to reduce
the amount of any sum received or receivable by a Funding Source under
a Funding Agreement or to require any payment calculated by reference
to the amount of interests or loans held or interest received by it,
then, upon demand by the applicable Co-Agent, Seller shall pay to such
Co-Agent, for the benefit of the relevant Funding Source, such amounts
charged to such Funding Source or such amounts to otherwise compensate
such Funding Source for such increased cost or such reduction.
Notwithstanding the foregoing, no Funding Source that is not organized
under the laws of the United States of America, or a state thereof,
shall be entitled to reimbursement or compensation hereunder unless and
until it has delivered to the Seller two (2) duly completed and signed
originals of United States Internal Revenue Service Form W-8BEN or
W-8ECI, as applicable, certifying in either case that such Funding
Source is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes. For
the avoidance of doubt, if the issuance of FASB Interpretation No. 46,
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or any other change in accounting standards or the issuance of any
other pronouncement, release or interpretation, causes or requires the
consolidation of all or a portion of the assets and liabilities of any
Conduit or Seller with the assets and liabilities of any of the Agents,
any Financial Institution or any other Funding Source, such event shall
constitute a circumstance on which such Funding Source may base a claim
for reimbursement under this Section.
2. Reaffirmation of Performance Undertaking. RPM-Delaware
hereby ratifies the Performance Undertaking and confirms that its obligations
thereunder remain in full force and effect.
3. Representations. In order to induce the Agents and the
Purchasers to agree to this Amendment, each of the Seller Parties hereby
represents and warrants that (a) the representations and warranties set forth in
Section 5.1 of the RPA are true and correct on and as of the date hereof, and
(b) no event has occurred and is continuing that constitutes an Amortization
Event or Potential Amortization Event.
4. Condition Precedent. This Amendment will become effective
as of the date first above written upon receipt by the Administrative Agent of
executed copies of this Amendment, duly executed by each of the parties hereto.
5. 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.
6. 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.
7. 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.
8. 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).
9. 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.
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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.
RPM FUNDING CORPORATION
By: /s/ Keith R. Smiley
---------------------------------
Name: Keith R. Smiley
Title: Vice President-Treasurer
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RPM INTERNATIONAL INC.
By: /s/ P. Kelly Tompkins
---------------------------------
Name: P. Kelly Tompkins
Title: Senior V.P., General Counsel, Secretary
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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 SECURITIES, INC., ATTORNEY-IN FACT
By: /s/ Douglas R. Wilson, Sr.
------------------------------
Name: Douglas R. Wilson, Sr.
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION, INDIVIDUALLY AND AS BLUERIDGE
AGENT
By: /s/ Gary G. Fleming, Jr.
------------------------------
Name: Gary G. Fleming, Jr.
Title: Director
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