JOINDER AND REAFFIRMATION AGREEMENT
This JOINDER AND REAFFIRMATION AGREEMENT (this "Agreement"), dated as of
August 24, 2005, is entered into by and among RPM UNITED KINGDOM G.P., a general
partnership formed under the laws of England (the "Obligor"), RPM INTERNATIONAL
INC., a Delaware
corporation (the "Original Borrower"), and NATIONAL CITY BANK,
as administrative agent (the "Administrative Agent") on behalf of and for the
benefit of the Lenders, as defined in the Credit Agreement referred to below.
(1) The Original Borrower, the Administrative Agent, and the Lenders are
parties to the Credit Agreement, dated as of November 19, 2004, among the
Original Borrower, the Lenders and the Administrative Agent (as the same may
from time to time be amended, restated or otherwise modified, the "Credit
Agreement") wherein the Administrative Agent and the Lenders have agreed to make
Loans, as defined in the Credit Agreement, and to issue Letters of Credit, as
defined in the Credit Agreement, to the Original Borrower.
(2) Pursuant to Section 2.09(b) of the Credit Agreement, the Original
Borrower has requested that the Obligor be designated a Foreign Borrower under
the Credit Agreement.
(3) The Administrative Agent and the Lenders are willing to allow the
Obligor to become a Foreign Borrower under the Credit Agreement and each Lender
is willing to make Revolving Loans, as defined in the Credit Agreement, to the
Obligor pursuant to its Revolving Commitment, as defined in the Credit
Agreement, upon certain terms and conditions as set forth in the Credit
Agreement, one of which is that the Obligor execute and deliver this Agreement
to the Administrative Agent.
In consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms. All capitalized terms used herein without definition
shall have the same meanings herein as such terms are defined in the Credit
2. Joinder. The Obligor executes and delivers this Agreement for the
purpose of becoming a Foreign Revolving Borrower under the Credit Agreement with
the same force and effects as if the Obligor were an original signatory thereto.
On and after the date hereof, the Obligor shall be irrevocably and
unconditionally liable for all of its obligations, as a Foreign Revolving
Borrower, under the Credit Agreement, as fully as if such Obligor had been an
original party to the Credit Agreement, including, but not limited to, all
amounts, indemnities and reimbursement obligations, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing by the Obligor to the Administrative Agent, any Lender, the Swing Line
Lender or LC Issuer pursuant to the terms of the Credit Agreement or any other
Loan Document (including, but not limited to, interest and fees that accrue
after the commencement by or against any Borrower of any insolvency proceeding,
regardless of whether allowed or allowable in such proceeding or subject to an
automatic stay under Section 362(a) of the Bankruptcy Code).
3. Obligor Party to the Credit Agreement. On and after the date hereof, the
Obligor shall (a) be designated a Foreign Revolving Borrower pursuant to the
terms and conditions of the Credit Agreement, and (b) become bound by all
representations, warranties, covenants, provisions and conditions of the Credit
Agreement and each other Loan Document applicable to a Foreign Revolving
Borrower as if the Obligor had been the original party making such
representations, warranties and covenants.
4. Representations and Warranties of the Obligor. The Obligor represents
and warrants to the Administrative Agent and each Lender that:
(a) the Obligor is an entity duly organized or formed, validly existing and
in good standing or in full force and effect under the laws of its jurisdiction
of organization or formation, as the case may be, and is duly qualified or
authorized to do business in each jurisdiction in which the Obligor is doing
(b) the Obligor has full power, authority and legal right to execute and
deliver this Agreement, and to perform and observe the provisions hereof and of
the Credit Agreement and the Notes, and the officers acting on behalf of the
Obligor have been duly authorized to execute and deliver this Agreement;
(c) this Agreement, the Credit Agreement and the Notes are each valid and
binding upon the Obligor and enforceable against the Obligor in accordance with
their respective terms; and
(d) each of the representations and warranties set forth in Section 8 of
the Credit Agreement are true and complete with respect to the Obligor as a
Foreign Borrower under the Credit Agreement.
5. Representations and Warranties of the Original Borrower and the Obligor.
The Original Borrower and the Obligor represent and warrant to the
Administrative Agent and each Lender that:
(a) no Default or Event of Default exists under the Credit Agreement, nor
will any occur immediately after the execution and delivery of this Agreement or
by the performance or observance of any provision hereof;
(b) neither the Original Borrower nor the Obligor has any claim or offset
against, or defense or counterclaim to, the Original Borrower's obligations or
liabilities under the Credit Agreement or any Loan Document; and
(c) neither the execution and delivery of this Agreement, nor the
performance and observance of the provisions hereof, by the Obligor will
conflict with, or constitute a violation or default under, any provision of any
applicable law or of any contract (including, without limitation, the Obligor's
organizational, constituting or governing documents) or of any other writing
binding upon the Obligor in any manner.
6. Reaffirmation. The Original Borrower hereby confirms, ratifies and
affirms all of its obligations, liabilities, convenants and agreements under the
Credit Agreement and hereby affirms, confirms and ratifies the Credit Agreement,
as supplemented by this Agreement.
7. Conditions Precedent. Concurrently with the execution of this Agreement,
the Original Borrower and the Obligor, as appropriate, shall:
(a) satisfy each of the conditions set forth in Sections 2.09(b) and 7.03
of the Credit Agreement;
(b) pay all legal fees and expenses of the Administrative Agent incurred in
connection with this Agreement to the extent invoiced on or prior to the date
(c) provide such other items as may be reasonably required by the
Administrative Agent or the Lenders in connection with this Agreement.
8. Binding Nature of Agreement. All provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby. This Agreement
shall bind and benefit the Original Borrower, the Obligor, the Administrative
Agent, the Lenders and their respective successors and assigns.
9. Counterparts. This Agreement 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.
10. Governing Law. The rights and obligations of all parties hereto shall
be governed by the laws of the State of Ohio
, without regard to principles of
conflicts of laws.
11. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED BY
LAW, WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THE ADMINISTRATIVE
AGENT, ANY OF THE LENDERS, THE OBLIGOR AND/OR THE ORIGINAL BORROWER ARISING OUT
OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN EACH OF THEM IN CONNECTION WITH THIS AGREEMENT OR ANY NOTE
OR OTHER AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION
THEREWITH OR THE TRANSACTIONS RELATED HERETO.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first written above.
RPM UNITED KINGDOM G.P.
By: /s/ P. Kelly Tompkins
Name: P. Kelly Tompkins
Title: Member of the Management
Committee and Secretary
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Tilte: Vice President, Treasurer and
NATIONAL CITY BANK,
as Administrative Agent
By: /s/ Robert S. Coleman
Name: Robert S. Coleman
Title: Senior Vice President