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Assignment, Assumption And Amendment Agreement

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Exhibit 10.4


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RPM INTERNATIONAL, INC.


----------------


ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT


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Dated as of August 23, 2002


Re:
Note Purchase Agreement dated as of November 15, 2001
and
$15,000,000 6.12% Senior Notes, Series A,
due November 15, 2004
and
$10,000,000 6.61% Senior Notes, Series B,
due November 15, 2006
and
$30,000,000 7.30% Senior Notes, Series C,
due November 15, 2008


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TABLE OF CONTENTS


SECTION HEADING PAGE


SECTION 1. DESCRIPTION OF ASSUMED OBLIGATIONS AND REORGANIZATION..................................1


SECTION 2. ASSIGNMENT AND ASSUMPTION; INDEMNIFICATION; CONSENT....................................2


Section 2.1. Assignment of Obligations..............................................................2
Section 2.2. Assumption of Obligations..............................................................2
Section 2.3. Indemnification........................................................................2
Section 2.4. Consent................................................................................2


SECTION 3. EFFECTIVE DATE.........................................................................2


SECTION 4. CONDITIONS TO ASSIGNMENT AND ASSUMPTION................................................3


Section 4.1. Representations and Warranties.........................................................3
Section 4.2. Performance; No Default................................................................3
Section 4.3. Compliance Certificates................................................................3
Section 4.4. Opinion of Counsel.....................................................................3
Section 4.5. Payment of Fee.........................................................................3
Section 4.6. Payment of Special Counsel Fees........................................................4
Section 4.7. Private Placement Number...............................................................4
Section 4.8. Proceedings and Documents..............................................................4
Section 4.9. Changes in Corporate Structure.........................................................4


SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................4


Section 5.1. Organization; Power and Authority......................................................4
Section 5.2. Authorization, etc.....................................................................4
Section 5.3. Compliance with Laws, Other Instruments, etc...........................................5
Section 5.4. Governmental Authorizations, etc.......................................................5
Section 5.5. Disclosure.............................................................................5
Section 5.6. Other Indebtedness.....................................................................5
Section 5.7. Additional Representations and Warranties..............................................5
Section 5.8. Reorganization.........................................................................5


SECTION 6. AMENDMENTS TO NOTE PURCHASE AGREEMENT..................................................6


Section 6.1. Amendment to Schedule B................................................................6
Section 6.2. Amendment to Exhibit 1.................................................................6


SECTION 7. MISCELLANEOUS..........................................................................6


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Section 7.1. Successors and Assigns.................................................................6
Section 7.2. Severability...........................................................................7
Section 7.3. Counterparts...........................................................................7
Section 7.4. Governing Law..........................................................................7


Signatures........................................................................................................8


SCHEDULE A -- NAMES OF HOLDERS


SCHEDULE 5.15 -- EXISTING DEBTS; FUTURE LIENS


EXHIBIT 1(a) -- Form of 6.12% Senior Note, Series A, due November 15, 2004


EXHIBIT 1(b) -- Form of 6.61% Senior Note, Series B, due November 15, 2006


EXHIBIT 1(c) -- Form of 7.30% Senior Note, Series C, due November 15, 2008


EXHIBIT 4.4 -- Form of Opinion of Counsel to the Company


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RPM INTERNATIONAL, INC.
2628 Pearl Road
Medina, Ohio 44258


Re:
Note Purchase Agreement dated as of November 15, 2001
and
$15,000,000 6.12% Senior Notes, Series A,
due November 15, 2004
and
$10,000,000 6.61% Senior Notes, Series B,
due November 15, 2006
and
$30,000,000 7.30% Senior Notes, Series C,
due November 15, 2008


Dated as of
August 23, 2002


TO THE HOLDERS OF THE CAPTIONED NOTES OF RPM, INC.
LISTED IN THE ATTACHED SCHEDULE A:


Ladies and Gentlemen:


RPM INTERNATIONAL, INC., a Delaware corporation (the "Company"), and RPM, Inc., an Ohio corporation ("RPM"), hereby agree with the holders of the Notes (as defined below) listed in the attached Schedule A as follows:


SECTION 1. DESCRIPTION OF ASSUMED OBLIGATIONS AND REORGANIZATION.


Pursuant to a Note Purchase Agreement dated as of November 15, 2001 (the Note Purchase Agreement as amended by this Agreement (and as assumed by the Company pursuant hereto) and as further amended or supplemented from time to time, the "Note Purchase Agreement") between RPM and certain institutional investors named therein, RPM heretofore issued and sold $15,000,000 6.12% Senior Notes, Series A, due November 15, 2004 and $10,000,000 6.61% Senior Notes, Series B, due November 15, 2006 and $30,000,000 7.30% Senior Notes, Series C, due November 15, 2008 (as assumed by the Company pursuant to this Agreement, collectively the "Notes"). Capitalized terms used herein without definition are used as defined in Schedule B to the Note Purchase Agreement; references to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule or an Exhibit attached to this Assignment, Assumption and Amendment Agreement (hereinafter this or the "Agreement").


Pursuant to a proposed corporate reorganization (i) the shareholders of RPM will transfer all of the outstanding shares of capital stock of RPM to the Company in exchange for all of the outstanding shares of capital stock of the Company, (ii) RPM will distribute to the Company


RPM International, Inc. Assignment, Assumption and Amendment Agreement


substantially all of its assets and (iii) RPM will become a Subsidiary of the Company (the "Reorganization").


The consummation of the Reorganization requires the prior written consent of the holders of Notes, and as a condition to granting such prior written consent, the holders of Notes have required, among other things, that the Company enter into this Agreement.


SECTION 2. ASSIGNMENT AND ASSUMPTION; INDEMNIFICATION; CONSENT.


Section 2.1. Assignment of Obligations. RPM hereby irrevocably and unconditionally assigns (the "Assignment") on and as of the Effective Date all of its right, title and interest in and to the Note Purchase Agreement and its obligations under the Notes to the Company.


Section 2.2. Assumption of Obligations. The Company for good and valuable consideration, the receipt of which is hereby acknowledged, for the benefit of each of the holders from time to time of the Notes, hereby irrevocably and unconditionally assumes and agrees to be bound by, and comply with on and as of the Effective Date, each of the covenants, terms and provisions of the Note Purchase Agreement and the Notes, including without limitation the payment in full of the principal of, interest on, and Make-Whole Amount, if any, from time to time due thereon and outstanding thereunder as fully and as completely as if the Company were the original issuer thereunder and a party thereto (including the assumption of all accrued and unpaid interest on the Notes from and after May 15, 2002, the date of the last interest payment made by RPM) (hereinafter referred to as the "Assumption").


Section 2.3. Indemnification. The Company and RPM shall pay, indemnify and save harmless each holder of Notes from and against any and all liabilities, costs and expenses, claims, demands or judgments arising from or out of the assumption by the Company of the obligations of RPM under the Notes and the Note Purchase Agreement, including, without limitation, any income tax owed by the holders of Notes as a result of the issuance of new Notes by the Company in exchange for the Notes originally issued by RPM constituting a taxable event for income tax purposes. The indemnification contained in this Section 2.3 shall survive the payment or transfer of any Note and the termination of the Note Purchase Agreement.


Section 2.4. Consent. Upon satisfaction of the conditions set forth in Sections 3 and 4 hereof, the holders of Notes, as evidenced by their execution and delivery of this Agreement, hereby consent to the Reorganization and the Assignment and Assumption as evidenced by this Agreement.


SECTION 3. EFFECTIVE DATE.


The Assignment and the Assumption shall become effective on the date when the merger of RPM Merger Sub, an Ohio corporation and wholly owned subsidiary of the Company with and into RPM is effective (the "Effective Date"); provided that the conditions set forth in Section 4 have been satisfied on or prior to the Effective Date and that the Company has delivered to Chapman and Cutler, your special counsel, on or before the Effective Date new Notes executed by the Company of the same series and in a principal amount equal to the unpaid


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RPM International, Inc. Assignment, Assumption and Amendment Agreement


principal amount of the Notes originally issued by RPM, payable to the same holders (or their nominees). The new Notes shall bear interest at the same rate, shall have the same maturity and the same semi-annual payments of interest and payments of principal as the original Notes and shall be dated May 15, 2002, the date of the most recent interest payment by RPM. The Notes originally issued by RPM shall be deemed cancelled on the Effective Date and each holder agrees to promptly return to the Company the original Notes issued by RPM following the Effective Date.


SECTION 4. CONDITIONS TO ASSIGNMENT AND ASSUMPTION.


The assumption of the obligations of RPM under the Note Purchase Agreement and the Notes pursuant to this Agreement and the consent of the holders granted pursuant to Section 2.4 hereof are subject to the satisfaction, on or prior to the Effective Date, of the following terms and conditions set forth in this Section 4:


Section 4.1. Representations and Warranties. The representations and warranties of the Company in this Agreement shall be true and correct when made and on the Effective Date.


Section 4.2. Performance; No Default. The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it on or prior to the Effective Date, and after giving effect to the issue of the new Notes by the Company, no Default or Event of Default shall have occurred and be continuing.


Section 4.3. Compliance Certificates.


(a) Officer's Certificate of the Company. The Company shall have delivered to you an Officer's Certificate, dated the Effective Date, certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.


(b) Secretary's Certificate of the Company. The Company shall have delivered to you a certificate certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Notes and the Agreement.


Section 4.4. Opinion of Counsel. Each holder shall have received a opinion in form and substance satisfactory to such holder, dated the Effective Date (a) from Calfee, Halter & Griswold, counsel for the Company, covering the matters set forth in Exhibit 4.4 and covering such other matters incident to the transactions contemplated hereby as the holder or the holders' counsel may reasonably request (and the Company hereby instruct its counsel to deliver such opinion to each holder).


Section 4.5. Payment of Fee. On or before the Effective Date, the Company shall have paid to each holder of Notes a fee equal to 5 basis points on the aggregate principal amount of the Notes held by such holder.


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Section 4.6. Payment of Special Counsel Fees. Without limiting the provisions of the Note Purchase Agreement, the Company shall have paid, on or before the Effective Date, the fees, charges and disbursements of Chapman and Cutler, your special counsel to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to the Effective Date.


Section 4.7. Private Placement Number. A Private Placement number issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities Valuation Office of the National Association of Insurance Commissioners) shall have been obtained for the new Notes.


Section 4.8. Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to you and your special counsel, and you and your special counsel shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request.


Section 4.9. Changes in Corporate Structure. Other than the transactions contemplated in connection with the Reorganization, neither the Company nor RPM has changed its jurisdiction of incorporation or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements of RPM furnished to the holders of the Notes.


SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.


The Company represents and warrants to each holder that:


Section 5.1. Organization; Power and Authority. The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and assume the obligations of RPM under the Note Purchase Agreement and the Notes and to perform the provisions hereof and thereof.


Section 5.2. Authorization, etc. This Agreement and the assumption of the obligations of RPM under the Note Purchase Agreement and the Notes have been duly authorized by all necessary corporate action on the part of the Company, this Agreement has been duly executed and delivered by the Company, and this Agreement and the Note Purchase Agreement after giving effect to the Assu
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