exv10w1
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 5 TO RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 5 to Receivables Purchase Agreement, dated as of May 31, 2011 (this
Amendment), is entered into by and among:
(a) RPM Funding Corporation, a Delaware corporation (Seller),
(b) RPM International Inc., a Delaware corporation, as initial Servicer,
(c) Fifth Third Bank (Fifth Third), and Wells Fargo Bank, National Association, successor by
merger to Wachovia Bank, National Association (Wells Fargo and each of Fifth Third and Wells
Fargo, a Purchaser and, collectively, the Purchasers), and
(d) Wells Fargo Bank, National Association, successor by merger to Wachovia Bank, National
Association, in its capacity as administrative agent for the Purchasers (in such capacity, together
with its successors and assigns, the Administrative Agent),
and pertains to that certain Receivables Purchase Agreement dated as of April 7, 2009 among the
parties hereto or their predecessors (as heretofore and hereby amended, the Agreement). Unless
defined elsewhere herein, capitalized terms used in this Amendment shall have the meanings assigned
to such terms in the Agreement.
PRELIMINARY STATEMENT
Seller wishes to amend the Agreement as hereinafter set forth, and the Administrative Agent
and the Purchasers are willing to agree to such amendments on the terms and subject to the
conditions set forth in this Amendment.
Section 1. Amendments.
(a) A new Section 5.1(y) is hereby added to the Agreement to read as follows:
Anti-Terrorism Law Compliance. None of the Seller Parties is subject to or in violation of
any law, regulation, or list of any government agency (including, without limitation, the
U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the USA PATRIOT
Act) that prohibits or limits the conduct of business with or the receiving of funds, goods
or services to or for the benefit of certain Persons specified therein or that prohibits or
limits any Purchaser from making any Incremental Purchase or from otherwise conducting
business with any of the Seller Parties.
(b) Section 7.1(b)(ii) of the Agreement is hereby amended to delete
$40,000,000 where it appears and to substitute in lieu thereof $50,000,000.
(c) A new Section 7.2(j) is hereby added to the Agreement to read as follows:
Anti-Terrorism Laws. None of the Seller Parties shall be in violation of any law or
regulation or appear on any list of any government agency (including, without limitation,
the U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the USA
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PATRIOT Act) that prohibits or limits the conduct of business with or the receiving of
funds, goods, or services to or for the benefit of certain Persons specified therein or
that prohibits or limits any Purchaser from making any Incremental Purchase.
(d) Section 9.1(j) of the Agreement is hereby amended to delete
$40,000,000 where it appears and to substitute in lieu thereof $50,000,000.
(e) Section 9.1 (n) of the Agreement is hereby amended and restated in its entirety to read as
follows.
(n) RPM-Delaware shall permit the Indebtedness of RPM-Delaware and its
Subsidiaries, determined on a consolidated basis, to exceed 60% of the sum of such
Indebtedness and consolidated shareholders equity of RPM-Delaware and its
consolidated Subsidiaries, as calculated on the last day of each fiscal quarter;
provided that for purposes of calculating consolidated shareholders equity,
non-cash charges related to the writedown or impairment of goodwill or other
intangibles shall be included in such calculation.
(f) Section 9.1(p) of the Receivables Purchase Agreement is hereby deleted in its entirety.
(g) Clause (vii) of the definition of Adjusted Eligible Receivables contained in Exhibit I
of the Receivables Purchase Agreement is hereby amended to delete 67-91 where it appears and to
substitute in lieu thereof 70-91.
(h) Clause (iv) of the definition of Eligible Receivables contained in Exhibit I of the
Receivables Purchase Agreement is hereby amended and restated in its entirety to read as follows:
(iv) which is not owing from an Obligor as to which more than 50% of the aggregate
Outstanding Balance of all Receivables owing from such Obligor are Defaulted
Receivables,
(i) The last sentence of the definition of Concentration Limit contained in Exhibit I of the
Receivables Purchase Agreement is hereby amended and restated in its entirety to read as follows:
As of the date hereof, (x) as long as The Home Depot, Inc. has debt ratings of
BBB-/Baa3/BBB- or above, the Special Concentration Limit for The Home Depot, Inc.
and its Affiliates is 25% of Adjusted Eligible Receivables; (y) the Special
Concentration Limit for Ace Hardware and its Affiliates is 4% of Adjusted Eligible
Receivables, and (z) as long as Lowes Companies, Inc. has debt ratings of
BBB-/Baa3/BBB- or above, the Special Concentration Limit for Lowes Companies, Inc.
and its Affiliates is 15% of Adjusted Eligible Receivables.
(j) The following definitions contained in Exhibit I of the Receivables Purchase Agreement are
hereby amended and restated, each in its entirety, to read as follows:
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Applicable Margin means, for so long as the Servicer has debt ratings of
BB+/Ba1/BB+ or above from any two of (i) S&P, (ii) Moodys, or (iii) Fitch Ratings 1.00%,
otherwise, 1.25%.
Dilution Horizon Ratio means, as of any Cut-off Date, a ratio (expressed as a
decimal), computed by dividing (a) the aggregate sales (excluding Excluded Government
Receivables) generated by the Originators during the three Calculation Periods ending on
such Cut-Off Date by (b) the Net Receivables Balance as of such Cut-Off Date.
EBITDA shall mean, for any period of four consecutive fiscal quarters, determined
on a consolidated basis for RPM-Delaware and its consolidated Subsidiaries, (i) the sum of
(A) net income of RPM-Delaware and its consolidated Subsidiaries (calculated before
provision for income taxes, Interest Expense, extraordinary items, non-recurring gains or
losses in connection with asset dispositions, income attributable to equity in affiliates,
all amounts attributable to depreciation and amortization and non-cash charges associated
with asbestos liabilities) for such period, (B) all non-cash charges related to the
writedown or impairment of goodwill and other intangibles for such period, (C) non-cash
charges or losses related to or resulting from the bankruptcy filing of any Excluded
Subsidiary for such period, (D) non-recurring expenses related to the acquisition of all
or substantially all of the assets or capital stock (including by merger or amalgamation)
of another Person (or, in the case of assets of a business unit of a Person), not to
exceed $10,000,000 in the aggregate for such period of four consecutive fiscal quarters,
plus (E) non-cash charges in addition to those provided for in clauses (B) and (C) above,
up to an aggregate amount of not more than $25,000,000 incurred during such period, minus
(ii) the sum of (A) cash payments made by RPM-Delaware or any of its consolidated
Subsidiaries in
respect of asbestos liabilities (which liabilities include, without limitation,
defense costs and indemnification liabilities incurred in connection with asbestos
liabilities) during such period and (B) non-cash gains for such period.
Facility Termination Date means the earlier of (i) May 30, 2014, and (ii) the
Amortization Date.
Interest Expense means, for any period, the sum (determined without duplication) of
the aggregate amount of interest accruing during such period on Indebtedness of
RPM-Delaware and its consolidated Subsidiaries (on a consolidated basis), including the
interest portion of payments under Capital Lease Obligations and any capitalized interest,
and excluding amortization of debt discount and expense and any non-cash interest expense
associated with accretive type debt instruments.
Material Indebtedness means (a) with respect to the Performance
Guarantor and its Subsidiaries (other than the Originators),
Indebtedness in excess of $50 million in aggregate principal amount and (b) with
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respect to any Originator, Indebtedness in excess of $20 million in aggregate
principal amount.
RPM Credit Agreement means that certain Credit Agreement dated as of January
5, 2011, as amended, restated or replaced from time to time, among RPM-Delaware and
certain of its Affiliates, the lenders and other financial institutions from time
to time party thereto, and PNC Bank, National Association as administrative agent.
Stress Factor means, for so long as the Servicer has debt ratings of
BBB-/Baa3/BBB- from any two of (i) S&P, (ii) Moodys, or (iii) Fitch Ratings,
2.00%, otherwise, 2.25%.
Yield Reserve means for any Calculation Period, the product (expressed as a
percentage) of (i) the product of 1.5 times the Alternate Base Rate as of the
immediately preceding Cut-Off Date times (ii) a fraction, the numerator of which is
the highest Days Sales Outstanding for the most recent 12 Calculation Periods and
the denominator of which is 360.
(k) The definitions of Capital Expenditures, Dividends, Equity Interest, Fixed Charge
Coverage Ratio and US Indebtedness are hereby deleted from exhibit I of the Receivables Purchase
Agreement.
(l) Schedule A of the Receivables Purchase Agreement is hereby amended and restated in its
entirety to read as set forth in Annex A hereto.
Section 2. Representations and Warranties. In order to induce the Administrative Agent and the
Purchasers to enter into this Amendment, Seller hereby represents and warrants to the
Administrative Agent and the Purchasers, as of the date hereof, that (a) the execution and delivery
by Seller of this Amendment are within its corporate powers and authority and have been duly
authorized by all necessary corporate action on its part, (b) this Amendment has been duly executed
and delivered by Seller, (c) after giving effect to this Amendment, no event has occurred and is
continuing that will constitute an Amortization Event or a Potential Amortization Event, and (d)
each of Sellers representations and warranties set forth in Section 5.1 of the Agreement (other
than Section 5.1(m) thereof) is true and correct on and as of the date hereof as though made on and
as of the date hereof.
Section 3. Effectiveness. This Amendment shall become effective as of the date hereof upon
satisfaction of each of the following conditions precedent:
(a) receipt by the Administrative Agent of counterparts hereof, duly executed by each of the
parties hereto; and
(b) payment of all fees due on the date hereof, including legal
fees.
Section 4. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
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PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
WHICH SHALL APPLY HERETO).
Section 5. 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 THE OTHER
TRANSACTION DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 6. 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).
Section 7. 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. Delivery of an executed counterpart hereof via
facsimile or electronic mail of an executed .pdf copy thereof shall, to the fullest extent
permitted by applicable law, have the same force and effect and delivery of an originally executed
counterpart hereof.
<Signature pages follow>
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
by their duly authorized officers as of the date hereof.
RPM FUNDING CORPORATION, as Seller
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By: |
/s/ Keith R. Smiley
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Name: |
Keith R. Smiley |
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Title: |
Vice President and Treasurer |
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RPM INTERNATIONAL INC., as Servicer
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By: |
/s/ Edward W. Moore
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Name: |
Edward W. Moore |
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Title: |
Vice President, General Counsel
and Secretary |
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Signature Page to Amendment No. 5 to Receivables Purchase Agreement
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FIFTH THIRD BANK, as Purchaser
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By: |
/s/ Andrew D. Jones
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Name: |
Andrew D. Jones |
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Title: |
Vice President |
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Signature Page to Amendment No. 5 to Receivables Purchase Agreement
WELLS FARGO BANK, NATIONAL ASSOCIATION, As Purchaser And Administrative Agent
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By: |
Michael J. Landry
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Name: |
Michael J. Landry |
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Title: |
Vice President |
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Signature Page to Amendment No. 5 to Receivables Purchase Agreement
ANNEX A
SCHEDULE A
COMMITMENTS OF THE PURCHASERS
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PURCHASER |
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Commitment |
Fifth Third Bank
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$67,500,000 |
Wachovia Bank, National Association
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$82,500,000 |