Exhibit 10.17.2
AMENDMENT NO. 3 TO RECEIVABLES SALE AGREEMENT
THIS AMENDMENT NO. 3 TO RECEIVABLES SALE AGREEMENT, dated as
of April 30, 2004, is by and among Weatherproofing Technologies, Inc., a
Delaware corporation, DAP Products Inc., a Delaware corporation, The Testor
Corporation, an Ohio corporation, Zinsser Co., Inc., a New Jersey corporation,
Tremco Incorporated, an Ohio corporation, Rust-Oleum Corporation, an Illinois
corporation, The Euclid Chemical Company, an Ohio corporation, and Republic
Powdered Metals, Inc., an Ohio corporation (each of the foregoing, an "EXISTING
ORIGINATOR" and collectively, the "EXISTING ORIGINATORS"), Tremco Barrier
Solutions, Inc., a Delaware corporation f/k/a Xxxx Waterproofing Solutions, Inc.
(the "NEW ORIGINATOR" and, together with the Existing Originators, the
"ORIGINATORS"), and RPM Funding Corporation, a Delaware corporation ("BUYER"),
and pertains to that certain Receivables Sale Agreement dated as of June 6,
2002, by and among the Existing Originators and Buyer, as heretofore amended
(the "AGREEMENT"). Unless defined elsewhere herein, capitalized terms used in
this Agreement shall have the meanings assigned to such terms in EXHIBIT I
thereto (or, if not defined in Exhibit I thereto, the meanings assigned to such
terms in EXHIBIT I to the Purchase Agreement referred to therein).
PRELIMINARY STATEMENTS
The New Originator wishes to become an Originator under the Agreement
and to sell Receivables and Related Security to the Buyer.
The Buyer is willing to purchase Receivables and Related Security from
the New Originator from and after the date hereof pursuant to the
Agreement.
Each of the other parties hereto is willing to consent to the New
Originator's addition as an Originator, on the terms and subject to the
conditions set forth in the Agreement as modified hereby.
Accordingly, the parties hereby agree to modify the Agreement 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. Amendments.
(a) The New Originator is hereby added as an Originator under
the Agreement; PROVIDED, HOWEVER, that solely insofar as the New Originator is
concerned: (a) any reference in the Agreement to "the date hereof" or "the date
of this Agreement" shall be deemed to be references to the date of this
Amendment, and (b) the "INITIAL CUTOFF DATE" for the New Originator shall be
deemed to be the Business Day preceding the date of this Amendment.
(b) Exhibit II to the Agreement is hereby amended to add the following
information thereto:
NAME OF ORIGINATOR STATE OF FEDERAL FORMER CORPORATE, TRADE, OR
ADDRESS OF CHIEF INCORPORATION EMPLOYEE ASSUMED NAMES
EXECUTIVE OFFICE AND ORGANIZATION IDENTIFICATION
RECORDS NUMBER NUMBER
Tremco Barrier Solutions, Inc. Delaware 00-0000000 Xxxx Waterproofing Solutions, Inc.
0000 X. Xxxx Xxxxxx 0000 X. Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxx 00000 #3322911 Xxxxxxxxxxxx, Xxxx 00000
(c) Exhibit III to the Agreement is hereby amended to add the
following information thereto:
------------------------------------------------------------------------------------------
ORIGINATOR NAME POST OFFICE BOX ADDRESS CORRESPONDING ACCOUNT
------------------------------------------------------------------------------------------
Tremco Barrier Solutions, Inc. X.X. Xxx 000000, Xxxxxxxxx, #000-0000
XX 00000
------------------------------------------------------------------------------------------
2. Representations. In order to induce the other parties
hereto to consent to this Amendment: (a) the New Originator hereby makes each of
the representations and warranties set forth in Section 2.1 of the Agreement,
and (b) each of the Existing Originators hereby confirms that, as of the date of
this Amendment, no event has occurred and is continuing that will constitute a
Termination Event or a Potential Termination Event.
3. Condition Precedent. This Amendment will become effective
as of the date first above written upon receipt by the Agent of (a) counterparts
of this Amendment, duly executed by each of the parties hereto and consented to
by the Agent, and (b) each of the other documents and opinions listed on
Schedule A hereto, in form and substance reasonably satisfactory to the Agent.
4. Miscellaneous.
4.1. 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.
4.2. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
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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.
4.3. 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).
4.4. 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.
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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.
DAP PRODUCTS INC.,
THE TESTOR CORPORATION,
ZINSSER CO., INC.,
TREMCO INCORPORATED,
RUST-OLEUM CORPORATION,
THE EUCLID CHEMICAL COMPANY AND
REPUBLIC POWDERED METALS, INC.
By: /s/ P. Xxxxx Xxxxxxxx
---------------------------------
Name: P. Xxxxx Xxxxxxxx
Title: Secretary
WEATHERPROOFING TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
TREMCO BARRIER SOLUTIONS, INC.
By: /s/ P. Xxxxx Xxxxxxxx
---------------------------------
Name: P. Xxxxx Xxxxxxxx
Title: Secretary
RPM FUNDING CORPORATION
By: /s/ P. Xxxxx Xxxxxxxx
---------------------------------
Name: P. Xxxxx Xxxxxxxx
Title: Vice President & Secretary
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CONSENTED TO AS OF THE DATE FIRST ABOVE WRITTEN:
BANK ONE, NA, AS AGENT
By: /s/ Xxxxxx Xxxxxx
---------------------------
Director, Capital Markets
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SCHEDULE A
1. Copy of New Originator's Credit and Collection Policy (if different than
the Credit and Collection Policies of the Existing Originators).
2. A certificate of New Originator's [Assistant] Secretary certifying:
(a) A copy of the Resolutions of the Board of Directors of New
Originator, authorizing New Originator's execution, delivery and
performance of the Amendment, the first-step agreement as amended by
the Amendment and the other documents to be delivered by it
thereunder;
(b) A copy of the Organizational Documents of New Originator (also
certified, to the extent that such documents are filed with any
governmental authority, by the Secretary of State of Delaware on or
within thirty (30) days prior to closing);
(c) Good Standing Certificates for New Originator issued by the
Secretaries of State of Delaware and each other jurisdiction where it
has material operations; and
(d) The names and signatures of the officers authorized on New
Originator's behalf to execute the Amendment.
3. Pre-filing state and federal tax lien, judgment lien and UCC lien searches
against New Originator in (a) its State of Incorporation, and (b) the state
where its chief executive office is located.
4. A proper UCC-1 financing statement in form suitable for filing against New
Originator under the Delaware UCC to perfect the ownership interests in New
Originator's Receivables and Related Security contemplated by the
first-step agreement. [Confirm that there's no need to make conforming
amendments to the collateral description in the existing second step UCCs].
5. UCC partial releases in form suitable for filing necessary to release all
security interests and other rights of any Person in the Receivables and
Related Security previously granted by New Originator, together with an
executed copy of any instrument of release delivered in connection
therewith.
6. Amendment to the Tremco Incorporated Collection Account Agreement to add
New Originator.
7. A favorable opinion of Xxxxxx, Halter & Xxxxxxxx LLP, legal counsel for New
Originator, as to the matters covered in the opinion regarding the Existing
Originators delivered in connection with the existing Agreement.
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8. A letter to the Agent from the Buyer, referencing the Purchase Agreement
and acknowledging that none of the New Originator's Receivables shall
constitute "Eligible Receivables" (as defined therein) unless and until the
Buyer delivers a "TRUE SALE" opinion and "SUBSTANTIVE CONSOLIDATION"
opinion of Xxxxxx, Halter & Xxxxxxxx LLP, counsel for New Originator, with
respect to the transactions contemplated by the Agreement.
9. If applicable, executed copies of (i) all consents from and authorizations
by any Persons and (ii) all waivers and amendments to existing credit
facilities, that are necessary in connection with New Originator's addition
as an Originator under the Agreement.
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