Exhibit 10.1
AMENDMENT NO. 3 TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED
AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of
February 27, 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) Victory
Receivables Corporation, a Delaware corporation (
“Victory” or a
“Conduit” ), and Variable Funding Capital
Company LLC, a Delaware limited liability company (
“VFCC” or a
“Conduit” ),
(d) The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (as successor in
interest to The Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch)
and its assigns (together with Victory, the “Victory
Group” ), and Wachovia Bank, National Association
(together with VFCC, the “VFCC Group”
),
(e) The Bank
of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as agent for the
Victory Group (in such capacity, a
“Co-Agent” ), and Wachovia Bank, National
Association, as agent for the VFCC Group (in such capacity, a
“Co-Agent” ), and
(f) Wachovia
Bank, National Association, as administrative agent for the Victory
Group, the VFCC 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 pertains to that certain Amended and Restated Receivables
Purchase Agreement dated as of May 10, 2006 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.
PRELIMINARY
STATEMENT
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.
Section 1. Amendments
.
(a) Section 9.1(h)(ii) of
the Agreement is hereby amended and restated in its entirety to
read as follows:
(ii) the
average of the Delinquency Ratios for the three months then most
recently ended shall exceed 3.00%; or
(b) Each reference in the
Agreement to “The Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago
Branch” is hereby replaced with a reference to “The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch”.
Section 2. Representations
and Warranties . In order to induce the Agents and the
Purchasers to enter into this Amendment, Seller hereby represents
and warrants to the Agents and the Purchasers, as of the date
hereof, that (a) the executi
