AMENDMENT NO. 1 TO RECEIVABLES
PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO RECEIVABLES PURCHASE
AGREEMENT, dated as of May 29, 2009 (this
“Amendment” ), is entered into by and
among:
(a) RPM Funding
Corporation, a Delaware corporation (
“Seller” ),
(b) RPM
International Inc., a Delaware corporation (
“RPM-Delaware” ), as initial
Servicer,
(c) Fifth Third
Bank ( “Fifth Third” ), and Wachovia
Bank, National Association ( “Wachovia”
and each of Fifth Third and Wachovia, a “
Purchaser ” and, collectively, the “
Purchasers ”), and
(d) 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 (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.
Seller wishes
to amend the Agreement as hereinafter set forth, and the Agents and
the Purchasers are willing to agree to such amendments on the terms
and subject to the conditions set forth in this
Amendment.
(a)
Amendments to Definitions . The definition of
“EBITDA” contained in Exhibit I of the Receivables
Purchase Agreement is hereby amended and restated as
follows:
“EBITDA”
shall mean, for any period of four consecutive fiscal quarters,
determined on a consolidated basis for the RPM-Delaware and its
Subsidiaries, (i) the sum of (A) net income of the
RPM-Delaware and its 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 in addition
to those provided for in clause (B) above, up to an aggregate
amount of not more than $25,000,000, incurred during such period,
and (D) one-time cash charges incurred during the period from
June 1, 2008 through May 31, 2010, but only up to an
aggregate amount of not more than $25,000,000 during such period,
minus (ii) cash payments made by the RPM-Delaware or
any of its Subsidiaries in respect of
1
asbestos
liabilities (which liabilities include, without limitation, defense
costs and indemnification liabilities incurred in connection with
asbestos liabilities) during such period.
(b)
Amendment to Add New Definitions .
Exhibit I
of the Receivables Purchase Agreement is hereby amended to add the
following definitions in the appropriate alphabetical
order:
“ Capital
Expenditures ” shall mean all expenditures made by
RPM-Delaware and its Subsidiaries that, in conformity with GAAP,
are required to be included in or reflected on the consolidated
balance sheet of RPM-Delaware as a fixed or capital asset of
RPM-Delaware or any of its Subsidiaries, including, without
limitation, Capital Lease Obligations of RPM-Delaware or any of its
Subsidiaries.
“
Dividends ” shall mean any distribution, dividend, or
payment to any Person (other than RPM-Delaware or a Subsidiary of
RPM-Delaware ) on account of any Equity Interests of any of
RPM-Delaware or its Subsidiaries.
“
Domestic Subsidiary ” shall mean any Subsidiary
organized under the law of the United States of America, any State
thereof, or the Di
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