EX-10.1.1



 







Exhibit 10.1.1




 

 






AMENDMENT NO. 1




TO




CREDIT AGREEMENT




among




RPM INTERNATIONAL INC.,

as a Borrower,




THE LENDERS NAMED HEREIN,

as Lenders,




and




NATIONAL CITY BANK,

as the Administrative Agent




 






dated as of July 18, 2006




 






 

 






 









 





     This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) is entered into as of July
18, 2006, by and among the following: (i) RPM INTERNATIONAL INC., a Delaware corporation (the
“Company”); (ii) the Lenders, as defined in the Credit Agreement referred to below; and
(iii) NATIONAL CITY BANK, as administrative agent for the Lenders (the “Administrative
Agent”).



RECITALS:




     A. The Company, the Foreign Borrowers from time to time party to the Credit Agreement, the
Administrative Agent, the Lenders, NATIONAL CITY BANK, as a joint lead arranger, a joint book
runner, an LC Issuer, and the Swing Line Lender, KEYBANK NATIONAL ASSOCIATION, as a joint lead
arranger, a joint book runner and the syndication agent, WACHOVIA BANK, N.A., as co-documentation
agent; and FLEET NATIONAL BANK, as co-documentation agent, are parties to a Credit Agreement dated
as of November 19, 2004 (as the same may from time to time be amended, restated or otherwise
modified, the “Credit Agreement”; capitalized terms used herein and not defined herein are
used herein as defined in the Credit Agreement).



     B. The Company has requested that Administrative Agent and the Lenders agree to amend certain
provisions of the Credit Agreement, as set forth herein.



     C. The Administrative Agent and the Lenders are willing to agree to such amendments pursuant
to the terms and subject to the conditions set forth herein.



AGREEMENT:




     In consideration of the premises and mutual covenants herein and for other valuable
consideration, the Company, the Administrative Agent and the Lenders agree as follows:



     Section 1. Amendment to Definitions. Section 1.01 of the Credit Agreement is hereby
amended effective as of May 31, 2006, to delete the definition of “EDITDA” therefrom and
insert in place thereof the following:




     “EBITDA” shall mean, for any period, determined on a consolidated basis for the
Company and its Subsidiaries, (i) net income of the Company 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, minus (ii) cash payments made
by the Company or any of its 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.



     Section 2. Conditions Precedent. The amendments set forth above shall become effective
as of the date first written above if on or before such date the following conditions have been
satisfied:




     (i) this Amendment shall have been executed by the Company, the Administrative Agent
and the Majority Lenders, and counterparts hereof as so executed shall have been delivered
to the Administrative Agent; and




     (ii) the Company shall have provided such other items and shall have satisfied such
other conditions as may be reasonably required by the Administrative Agent.



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     Section 3. Miscellaneous.



     3.1 Representations and Warranties. The Company, by signing below, hereby represents
and warrants to the Administrative Agent and the Lenders that:




     (i) the Company has the legal power and authority to execute and deliver this
Amendment;




     (ii) the officers executing this Amendment on behalf of the Company have been duly
authorized to execute and deliver the same and bind the Company with respect to the
provisions hereof;




     (iii) the execution and delivery hereof by the Company and the performance and
observance by the Company of the provisions hereof do not violate or conflict with the
Organizational Documents of the Company or any law applicable to the Company or result in a
breach of any provision of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against the Company;




     (iv) no Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Amendment or by the performance
or observance of any provision hereof;




     (v) upon the execution and delivery of this Amendment by the Company, this Amendment
shall constitute a valid and binding obligation of the Company in every respect, enforceable
in accordance with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency or other similar laws of general application affecting the
enforcement of creditors’ rights or by general principles of equity limiting the
availability of equitable remedies; and




     (vi) each of the representations and warranties set forth in Article VIII of the Credit
Agreement is true and correct in all material respects as of the date hereof, except to the
extent that any thereof expressly relate to an earlier date.



     3.2 Waiver of Claims. The Company hereby waives and releases the Administrative Agent
and each of the Lenders and their respective directors, officers, employees, attorneys, affiliates
and subsidiaries from any and all claims, offsets, defenses and counterclaims of which any of the
undersigned is aware arising out of or relating to the Credit Agreement and the other Loan
Documents, such waiver and release being with full knowledge and understanding of the circumstances
and effect thereof and after having consulted legal counsel with respect thereto.



     3.3 Expenses. As provided in the Credit Agreement, but without limiting any terms or
provisions thereof, the Company agrees to pay on demand all reasonable costs and expenses incurred
by the Administrative Agent in connection with the preparation, negotiation, and execution of this
Amendment, including without limitation the reasonable costs and fees of the Administrative Agent’s
special legal counsel, regardless of whether this Amendment becomes effective in accordance with
the terms hereof, and all costs and expenses incurred by the Administrative Agent or any Lender in
connection with the enforcement or preservation of any rights under the Credit Agreement, as
amended hereby.



     3.4 Credit Agreement Unaffected. Each reference to the Credit Agreement herein or in
any other Loan Document shall hereafter be construed as a reference to the Credit Agreement as
amended



2









 







hereby. Except as herein otherwise specifically provided, all provisions of the Credit
Agreement shall remain in full force and effect and be unaffected hereby. This Amendment is a Loan
Document.



     3.5 Entire Agreement. This Amendment, together with the Credit Agreement and the
other Loan Documents, integrates all the terms and conditions mentioned herein or incidental hereto
and supersedes all oral representations and negotiations and prior writings with respect to the
subject matter hereof.



     3.6 Counterparts. This Amendment may be executed in any number of counterparts, by
different parties hereto in separate counterparts and by facsimile signature, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.



     3.7 Governing Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF OHIO, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. TO THE
FULLEST EXTENT PERMITTED BY LAW, THE COMPANY HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY
CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF OHIO GOVERNS THIS
AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS.



     3.8 JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY
AMENDMENTS, WAIVERS OR OTHER MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.



[Signature pages follow.]




3









 








     IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the date first
above written.



	 	 	 	 	 	 	 	 	 
	 	 	RPM INTERNATIONAL INC.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Keith R. Smiley
	 	 	 	 	 
	 	 	 	 	Name:	 	Keith R. Smiley
	 	 	 	 	Title:	 	Vice President, Treasurer and
Assistant Secretary
	 
	 	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK,
as the Administrative Agent, the Swing Line Lender,
the LC Issuer and a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert S Coleman
	 	 	 	 	 
	 	 	 	 	Name:	 	Robert S Coleman
	 	 	 	 	Title:	 	Senior Vice President
	 
	 	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK, CANADA BRANCH
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Caroline Stade	 	/s/ William Hines
	 	 	 	 	 	 	 
	 	 	 	 	Name: Caroline Stade	 	William Hines
	 	 	 	 	Title: Senior Vice President	 	Senior Vice President






4









 





Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	KEYBANK NATIONAL ASSOCIATION
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Thomas J. Purcell
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Thomas J. Purcell

Title: Senior Vice President






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	Wachovia Bank, National Association
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Barbara Van Meerten
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Barbara Van Meerten

Title: Director






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	FIFTH THIRD BANK
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Roy C. Lanctot
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Roy C. Lanctot
	 

	 	 	 	 	 	Title: Vice President






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	LaSalle Bank National Association
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Patrick F Dunphy
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Patrick F. Dunphy
	 

	 	 	 	 	 	Title: First Vice President






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	The Bank of Tokyo — Mitsubishi UFJ, Ltd., Chicago Branch
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Tsuguyuki Umene
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Tsuguyuki Umene
	 

	 	 	 	 	 	Title: Deputy General Manager






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	The Bank of New York
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Kenneth R. McDonnell
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Kenneth R. McDonnell

Title: Vice President






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	US Bank National Association
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Christine C. Gencer
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Christine C. Gencer
	 

	 	 	 	 	 	Title: Vice President






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	Credit Suisse, Cayman Islands Branch
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Tom Cantello
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Tom Cantello
	 

	 	 	 	 	 	Title: Vice President
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Greg Richards
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Greg Richards
	 

	 	 	 	 	 	Title: Associate






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	KBC BANK N.V.
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Jean-Pierre Diels
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Jean-Pierre Diels
	 

	 	 	 	 	 	Title: First Vice President
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ William Cavanaugh
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: William Cavanaugh
	 

	 	 	 	 	 	Title: Vice President






 









 






Signature page to

the Amendment No. 1 to Credit Agreement

among RPM International Inc., as Borrower,

National City Bank, as the Administrative Agent,

and the Lenders party thereto




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Name of Institution:	 	Bank of America, N.A.
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Irene Bertozzi Bartenstein
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Irene Bertozzi Bartenstein
	 

	 	 	 	 	 	Title: Principal