Exhibit 10.18.2
AMENDMENT NO. 3 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT (this "AMENDMENT") is entered into as of May
25, 2004 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,
as heretofore amended from time to time (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
RPM AMENDMENT NO. 3 TO RPA
1. Amendments.
1.1. The following new definitions are hereby added to Exhibit
I to the RPA in their appropriate alphabetical order:
"FOREIGN RECEIVABLE" means a Receivable (other than a Canadian
Receivable) as to which the Obligor (a) if a natural person, is not a
resident of the United States of America, and (b) if a corporation or
other business entity, is organized under the laws of and/or maintains
its chief executive office in a jurisdiction other than the United
States of America.
"STATE GOVERNMENT RECEIVABLE" means a Receivable as to which
the Obligor is a state government or a state governmental subdivision
or agency in the United States of America.
1.2. Clause (iii) of the definition of "ELIGIBLE RECEIVABLE"
in the RPA is hereby amended and restated in its entirety to read as follows:
(iii) which is not a Charged-Off Receivable or a Defaulted
Receivable,
1.3. The following definitions in the RPA are hereby amended
and restated in their entirety to read, respectively, as follows:
"ADJUSTED ELIGIBLE RECEIVABLES" means the aggregate
Outstanding Balance of Eligible Receivables less (i) the Cash Discount
Exposure Factor; (ii) the Contractual Rebate Accruals; (iii) the
aggregate Outstanding Balance of all State Government Receivables in
excess of 5% of the aggregate Outstanding Balance of all Receivables;
(iv) the aggregate Outstanding Balance of all other Government
Receivables in excess of 3% of the aggregate Outstanding Balance of all
Receivables; (v) the aggregate Outstanding Balance of all Canadian
Receivables in excess of 3% of the aggregate Outstanding Balance of all
Receivables; (vi) the aggregate Outstanding Balance of all Foreign
Receivables in excess of 3% of the aggregate Outstanding Balance of all
Receivables; (vii) the aggregate Outstanding Balance of all Eligible
Receivables which by their terms are due 62-91 days after the date of
invoice in excess of 15% of the aggregate Outstanding Balance of all
Receivables; and (viii) the aggregate Outstanding Balance of all
Eligible Receivables which by their terms are due 92-121 days after
the date of invoice in excess of 3% of the aggregate Outstanding
Balance of all Receivables.
"CONCENTRATION LIMIT" means, at any time, for any Obligor and
its Affiliates, considered as if they were one and the same Obligor,
6.5% of Adjusted Eligible Receivables with long-term debt ratings of at
least "Baa3" by Moody's Investors Services, Inc. and at least "BBB-" by
Standard & Poor's Ratings Group, or 5% of the Adjusted Eligible
Receivables, or such other amount (a "SPECIAL CONCENTRATION LIMIT") for
such Obligor designated by the Co-Agents; PROVIDED that either of the
Co-Agents may, upon not less than five Business Days' notice to Seller,
cancel any Special Concentration Limit. As of the date hereof, (x) the
2
RPM AMENDMENT NO. 3 TO RPA
Special Concentration Limit for The Home Depot, Inc. and its Affiliates
is the lesser of (i) $40,000,000 or (ii) 20% of Adjusted Eligible
Receivables; (y) the Special Concentration Limit for Wal-Mart Stores
Inc. and its Affiliates is the lesser of (i) $20,000,000 or (ii) 10% of
Adjusted Eligible Receivables; and (z) the Special Concentration Limit
for Lowe's Companies, Inc. and its Affiliates is the lesser of (i)
$30,000,000 or (ii) 15% of Adjusted Eligible Receivables.
"DEFAULT HORIZON RATIO" means, as of any Cut-Off Date, the
ratio (expressed as a decimal) computed by dividing (a) the sum of (i)
the aggregate sales generated by the Originators during the four
Calculation Periods ending on such Cut-Off Date and (ii) 50% of the
aggregate sales generated by the Originators during the Calculation
Period ending four Cut-Off Dates prior to such Cut-Off Date, by (b) the
Net Receivables Balance as of such Cut-Off Date.
"LIQUIDITY TERMINATION DATE" means May 24, 2005.
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.
3
RPM AMENDMENT NO. 3 TO RPA
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.
4
RPM AMENDMENT NO. 3 TO RPA
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: Treasurer
5
RPM AMENDMENT NO. 3 TO RPA
RPM INTERNATIONAL INC.
By: /s/ Keith R. Smiley
---------------------------------
Name: Keith R. Smiley
Title: Vice President, Treasurer and Assistant Secretary
6
RPM AMENDMENT NO. 3 TO RPA
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
7
RPM AMENDMENT NO. 3 TO RPA
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA CAPITAL MARKETS, LLC, ATTORNEY-IN FACT
By: /s/ Douglas R. Wilson, Sr.
------------------------------
Name: Douglas R. Wilson, Sr.
Title: Vice President
8
RPM AMENDMENT NO. 3 TO RPA
WACHOVIA BANK, NATIONAL ASSOCIATION, INDIVIDUALLY AND AS BLUE RIDGE
AGENT
By: /s/ Gary G. Fleming, Jr.
------------------------------
Name: Gary G. Fleming, Jr.
Title: Director
9
RPM AMENDMENT NO. 3 TO RPA