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EXHIBIT 4.3
MULTICURRENCY CREDIT AGREEMENT
Dated as of December 14, 1993
among
RPM, INC.,
RPOW (FRANCE) S.A.,
RPM EUROPE B.V.,
RADIANT COLOR N.V.,
CREDIT LYONNAIS CHICAGO BRANCH,
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
AND
CREDIT LYONNAIS BELGIUM
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TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . 1
1.01. Certain Defined Terms . . . . . . . . . . . . . . . 1
1.02. Accounting Terms . . . . . . . . . . . . . . . . . 13
1.03. Currency Equivalents Generally . . . . . . . . . . 13
ARTICLE II - AMOUNTS AND TERMS OF THE ADVANCES . . . . . . . . 13
2.01. The Advances . . . . . . . . . . . . . . . . . . . 13
2.02. Making the Advances . . . . . . . . . . . . . . . 14
2.03. Conversion and Continuation Elections . . . . . . .15
2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . 16
2.05. Voluntary Reduction of the Commitment . . . . . . .17
2.06. Repayment . . . . . . . . . . . . . . . . . . . . .17
2.07. Interest . . . . . . . . . . . . . . . . . . . . . 17
2.08. Extension of Term . . . . . . . . . . . . . . . . .18
2.09. Additional Interest on Eurocurrency
Advances . . . . . . . . . . . . . . . . . . . . 18
2.10. Increased Costs, Etc. . . . . . . . . . . . . . . .18
2.11. Prepayments; Funding Losses . . . . . . . . . . . .19
2.12. Inability to Determine Rates . . . . . . . . . . . 20
2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . .21
2.14. Illegality . . . . . . . . . . . . . . . . . . . . 23
2.15. Sharing of Payments, Etc. . . . . . . . . . . . . .23
2.16. Evidence of Indebtedness . . . . . . . . . . . . . 24
2.17. Currency Equivalents . . . . . . . . . . . . . . . 24
2.18 Currency Fluctuations. . . . . . . . . . . . . . .25
2.19 Survival . . . . . . . . . . . . . . . . . . . . .25
ARTICLE III - GUARANTY . . . . . . . . . . . . . . . . . . . . 25
3.01. Guaranty . . . . . . . . . . . . . . . . . . . . . 25
3.02. Guaranty Absolute . . . . . . . . . . . . . . . . .25
3.03. Waiver . . . . . . . . . . . . . . . . . . . . . . 26
3.04. Subrogation . . . . . . . . . . . . . . . . . . . .26
ARTICLE IV - CONDITIONS OF LENDING . . . . . . . . . . . . . . 27
4.01. Condition Precedent to Initial Advances . . . . . .27
4.02. Conditions Precedent to Each Borrowing . . . . . . 27
ARTICLE V - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 28
5.01. Due Organization . . . . . . . . . . . . . . . . . 28
5.02. Due Authorization . . . . . . . . . . . . . . . . .28
5.03. No Governmental Approval . . . . . . . . . . . . . 28
5.04. Enforceable Agreement . . . . . . . . . . . . . . .29
5.05. Financial Information . . . . . . . . . . . . . . .29
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5.06. Litigation . . . . . . . . . . . . . . . . . . . 29
5.07. Margin Stock . . . . . . . . . . . . . . . . . . . 29
5.08. No Default . . . . . . . . . . . . . . . . . . . 29
5.09. ERISA Compliance . . . . . . . . . . . . . . . . . 29
5.10. Title to Properties . . . . . . . . . . . . . . . . 30
5.11. Taxes . . . . . . . . . . . . . . . . . . . . . . . 30
5.12. Environmental Matters . . . . . . . . . . . . . . . 30
5.13. Use of Proceeds . . . . . . . . . . . . . . . . . . 31
5.14. Regulated Entities . . . . . . . . . . . . . . . . 31
5.15. Subsidiaries; No Restrictions on Dividends . . . . 31
5.16. Insurance . . . . . . . . . . . . . . . . . . . . . 31
5.17. Copyrights, Patents, Trademarks and
Licenses, Etc. . . . . . . . . . . . . . . . . . 31
ARTICLE VI - AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . 32
6.01. Financial Statements . . . . . . . . . . . . . . . 32
6.02. Certificates; Other Information . . . . . . . . . . 32
6.03. Notices . . . . . . . . . . . . . . . . . . . . . . 33
6.04. Preservation of Corporate Existence Rights,
Etc. . . . . . . . . . . . . . . . . . . . . . . 35
6.05. Insurance . . . . . . . . . . . . . . . . . . . . . 35
6.06. Payment of Obligations . . . . . . . . . . . . . . 35
6.07. Compliance with Laws . . . . . . . . . . . . . . . 35
6.08. Inspection of Property and Books and
Records . . . . . . . . . . . . . . . . . . . . . 35
6.09. Environmental Laws . . . . . . . . . . . . . . . . 36
6.10. Use of Proceeds . . . . . . . . . . . . . . . . . . 36
6.11. Further Assurances . . . . . . . . . . . . . . . . 36
ARTICLE VII - NEGATIVE COVENANTS . . . . . . . . . . . . . . . 36
7.01. Liens, Etc. . . . . . . . . . . . . . . . . . . . . 36
7.02. Mergers, Consolidations and Dispositions of
Assets . . . . . . . . . . . . . . . . . . . . . 38
7.03. Use of Proceeds . . . . . . . . . . . . . . . . . . 39
7.04. Compliance with ERISA . . . . . . . . . . . . . . . 39
7.05. Accounting Changes . . . . . . . . . . . . . . . . 40
7.06. Contracts of Subsidiaries. . . . . . . . . . . . . 40
7.07. Minimum Tangible Net Worth . . . . . . . . . . . . 40
7.08. Leverage Ratio . . . . . . . . . . . . . . . . . . 40
7.09. Ratio of Long-Term Debt to Capitalization . . . . . 40
7.10. Ratio of EBIT to Interest Expense . . . . . . . . . 40
ARTICLE VIII - EVENTS OF DEFAULT . . . . . . . . . . . . . . . 40
8.01. Events of Default . . . . . . . . . . . . . . . . . 40
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8.02. Remedies . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IX - THE AGENT . . . . . . . . . . . . . . . . . . . . 44
9.01. Authorization and Action . . . . . . . . . . . . . 44
9.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . 44
9.03. CLCB and Affiliates . . . . . . . . . . . . . . . . 45
9.04. Indemnification . . . . . . . . . . . . . . . . . . 45
ARTICLE X - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . .46
10.01. Amendments, Etc. . . . . . . . . . . . . . . . . . 46
10.02. Notices, Etc. . . . . . . . . . . . . . . . . . . 46
10.03. No Waiver; Remedies . . . . . . . . . . . . . . . 47
10.04. Expenses . . . . . . . . . . . . . . . . . . . . . 47
10.05. Right of Set-off . . . . . . . . . . . . . . . . . 47
10.06. Judgment Currency Conversions . . . . . . . . . . 48
10.07. Binding Effect . . . . . . . . . . . . . . . . . . 48
10.08. Participations . . . . . . . . . . . . . . . . . . 48
10.09. Execution in Counterparts . . . . . . . . . . . . 49
10.10. Severability . . . . . . . . . . . . . . . . . . . 49
10.11. GOVERNING LAW AND JURISDICTION . . . . . . . . . . 49
10.12. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . .50
SCHEDULES
Schedule 2.01 Lender Advance Percentages
Schedule 5.06 Litigation Matters
Schedule 5.12 Environmental Matters
Schedule 5.15 Subsidiaries
EXHIBITS
Exhibit A Form of Compliance Certificate
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Opinion of Counsel to RPM
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MULTICURRENCY CREDIT AGREEMENT
This Multicurrency Credit Agreement (the "Agreement") is
entered into as of December 14, 1993 among RPM, Inc., a
corporation organized under the laws of the State of Ohio
("RPM"), RPOW (France) S.A., a corporation organized under the
laws of France, RPM Europe B.V., a corporation organized under
the laws of the Netherlands, and Radiant Color N.V., a
corporation organized under the laws of Belgium, (RPOW (France)
S.A., RPM Europe B.V. and Radiant Color N.V. are hereinafter
referred to as the "Subsidiary Borrowers," and RPM and the
Subsidiary Borrowers are each referred to hereinafter
individually as a "Borrower" and, collectively, as the
"Borrowers"), the lenders (the "Lenders") listed on the signature
pages hereof, and Credit Lyonnais Chicago Branch ("CLCB") as
agent (the "Agent") for the lenders hereunder.
PRELIMINARY STATEMENT
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RPM has requested that the Lenders make loans available to
it and certain of its Subsidiaries pursuant to the terms of this
Agreement, which include, among other terms, a guaranty by RPM of
any loans made to such Subsidiaries. The Agent and Lenders have
agreed to do so.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"ADVANCE" means a Base Rate Advance or a Eurocurrency
Advance.
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed
to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person,
whether through the ownership of voting securities, by contract
or otherwise. Without limitation, any director, executive
officer or beneficial owner of 15% or more of the voting equity
of a Person shall for the purposes of this Agreement, be deemed
to control the other Person.
"ALLOCATION PERCENTAGE" means, with respect to CLCB,
66-2/3%, and, with respect to Credit Lyonnais Belgium, 33-1/3%.
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"ALTERNATIVE CURRENCY" means Belgian francs, Dutch guilders,
French francs or British sterling as the case may be.
"APPLICABLE MARGIN" means for the Interest Period for each
Eurocurrency Advance comprising part of the same Borrowing, the
margin set forth below opposite the then current RPM Subordinated
Debt Rating:
RPM Subordinated Applicable
Debt Rating Margin
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The S&P rating is better than BBB+ 0.40%
AND the Moody's rating is better
than Baal
The above does not apply, but 0.50%
the S&P rating is better than BB+
AND the Moody's rating is better
than Bal
The above do not apply, but the 0.75%
S&P rating is better than BB AND
the Moody's rating is better than
Ba
All other cases 1.00%
For purposes of this definition, "RPM Subordinated Debt
Rating" means the ratings assigned by Moody's and S&P that are in
effect two Business Days before the first day of such Interest
Period. If a rating is only available from either Moody's or S&P
but not both, the available rating shall be used to determine the
Applicable Margin and the requirement relating to the unavailable
rating shall be waived.
If no rating is in effect from either Moody's or S&P, the
Applicable Margin, for the Interest Period for each Eurocurrency
Advance comprising part of the same Borrowing shall be the margin
set forth below opposite RPM's ratio of EBIT to Consolidated
Interest Expense as calculated using RPM's most recent
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consolidated financial statements delivered to the Agent pursuant
to Section 6.01 hereof:
EBIT/Consolidated
Interest Expense Applicable
for RPM Margin
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Greater than or
equal to 6.50:1 0.45%
5.00 - 6.49:1 0.50%
3.50 - 4.99:1 0.55%
3.00 - 3.49:1 0.65%
Less than or
equal to 2.99:1 0.75%
"BASE RATE" means, on a daily basis, for a borrowing
consisting of:
(a) Dollars -- the higher of (i) the rate per annum
established by the Agent from time to time as the reference
rate for short-term commercial loans in Dollars to U.S.
domestic corporate borrowers (which the Borrowers
acknowledge is not necessarily the Agent's lowest rate) and
(ii) the overnight cost of funds to the Agent as determined
solely by the Agent plus one percent (1%) per annum;
(b) Belgian francs -- the rate per annum quoted as the
overdraft rate by the principal office of Credit Lyonnais in
Brussels, Belgium for domestic corporate borrowers;
(c) Dutch guilders -- the rate per annum quoted as the
overdraft rate by the principal office of Credit Lyonnais in
Rotterdam, Netherlands for domestic corporate borrowers;
(d) French francs -- the rate per annum quoted as the
overdraft rate by the principal office of Credit Lyonnais in
Paris, France for domestic corporate borrowers; and
(e) British sterling -- the rate per annum quoted as
the overdraft rate by the principal office of Credit
Lyonnais in London, England for domestic corporate
borrowers;
"BASE RATE ADVANCE" means an Advance which bears interest at
a rate per annum determined on the basis of a Base Rate.
"BORROWING" means a borrowing hereunder consisting of
Advances made to the same Borrower on the same day by the
Lenders.
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"BUSINESS DAY" means a day of the year on which banks are
not required or authorized to close in Chicago, Illinois and
(i) with respect to any Advance to a Subsidiary Borrower, is also
a day of the year on which banks are not required or authorized
to close in Brussels, Belgium and (ii) with respect to
Eurocurrency Advances in Dollars, Dutch guilders or French francs
is also a day on which dealings are carried on in the London
interbank market, and (iii) with respect to Eurocurrency Advances
in Belgian francs, Dutch guilders or French francs, is also a day
on which banks are open for business in the country of issue of
the currency of such Eurocurrency Advance.
"CLB" means Credit Lyonnais Belgium.
"CLOSING DATE" means the date of execution of this
Agreement.
"CODE" means the U.S. Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"COMMITMENT" has the meaning specified in Section 2.01.
"COMPLIANCE CERTIFICATE" means a certificate delivered to
the Agent by RPM pursuant to Section 6.02(a), substantially in
the form of Exhibit A.
"CONSOLIDATED CAPITALIZATION" means, as of the date of any
determination thereof with respect to any Person, the aggregate
of the shareholders' equity of such Person and its Subsidiaries
appearing on the balance sheet of such Person plus such Person's
Consolidated Long Term Debt, all prepared in accordance with
GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period with
respect to any Person, all amounts (including all commissions,
discounts, fees and other charges in connection with any
Indebtedness) which would, in accordance with GAAP, be included
in interest expense on the consolidated income statement of such
Person and its Subsidiaries for such period.
"CONSOLIDATED LONG TERM DEBT" means, as of the date of
determination thereof with respect to any Person, the aggregate
amount of all Indebtedness which would, in accordance with GAAP,
constitute long term Indebtedness (including, without limitation:.
(a) any Indebtedness with a maturity of more than one year after
the creation of such Indebtedness, and (b) any lease obligations
which would be considered capital lease obligations under GAAP)
on the balance sheet of such Person and its Subsidiaries prepared
in accordance with GAAP on a consolidated basis.
"CONSOLIDATED NET INCOME (LOSS)" means, for any period, with
respect to any Person, all amounts which would, in accordance
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with GAAP, be included in net income (loss) on the consolidated
income statement of such Person and its Subsidiaries for such
period.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of the date of
the determination thereof, with respect to any Person, the
aggregate amount of shareholders' equity of such Person and its
Subsidiaries appearing on the balance sheet of such Person and
its Subsidiaries prepared in accordance with GAAP on a
consolidated basis, LESS the sum of (without duplication) (a) the
cost of any treasury shares included on such balance sheet and
(b) the aggregate of all amounts that appear on the asset side of
such balance sheet and are attributable to assets which would be
treated as intangibles under GAAP, including, without limitation,
all such items as goodwill, trademarks, trade names, brand names,
copyrights, patents, patent applications, licenses, franchises,
permits and rights with respect to the foregoing, and unamortized
debt discount and expenses, PLUS, with respect to RPM, the
outstanding principal balance of the RPM Subordinated Debt.
"CONSOLIDATED TOTAL ASSETS" means, with respect to any
Person, as of the date of any determination thereof, the
aggregate of all assets appearing on the balance sheet of such
Person and its Subsidiaries prepared in accordance with GAAP on a
consolidated basis.
"CONSOLIDATED TOTAL LIABILITIES" means, with respect to any
Person, as of the date of any determination thereof, the
aggregate of all liabilities appearing on the balance sheet of
such Person and its Subsidiaries prepared in accordance with GAAP
on a consolidated basis.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is bound.
"CONTROLLED GROUP" means RPM and all Persons (whether or not
incorporated) under common control or treated as a single
employer with RPM pursuant to Section 414(b), (c), (m) or (o) of
the Code.
"CONVERSION DATE" means any date on which a Borrower elects
to convert (a) a Base Rate Advance to a Eurocurrency Advance or
to a Base Rate Advance in another Alternative Currency or Dollars
or (b) a Eurocurrency Advance to a Base Rate Advance or to a
Eurocurrency Advance in another Alternative Currency or Dollars.
"DEFAULT" means an event which with notice or lapse of time
or both would become an Event of Default.
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"DOLLARS" and the sign "$" each means lawful money of the
United States of America.
"EBIT" means, for any period, with respect to any Person,
the sum of (a) Consolidated Net Income (Loss), PLUS (b)
Consolidated Interest Expense, PLUS (c) provision for income
taxes to the extent included in the determination of Consolidated
Net Income (Loss), all determined on a consolidated basis in
accordance with GAAP for such Person and its Subsidiaries;
PROVIDED, HOWEVER, that Consolidated Net Income (Loss) shall be
computed for these purposes without giving effect to losses or
gains from discontinued operations or extraordinary losses or
gains.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted,
by any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental
Law or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or
death), property damage, natural resources damage, or otherwise
alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or
other type of relief, resulting from or based upon (a) the
alleged or actual presence, placement, migration, spillage,
leakage, disposal, discharge, emission or release of any
Hazardous Material at, in, or from property, whether or not owned
by a Borrower, or (b) any other circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.
"ENVIRONMENTAL LAWS" means all federal, national, state or
local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, authorizations, registration
requirements and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental
and land use matters or health and safety matters involving
Hazardous Materials.
"ERISA" means the U.S. Employee Retirement Income Security
Act of 1974, as amended from time to time, and regulations
promulgated and rulings issued thereunder.
"ERISA AFFILIATE" means any trade or business (whether or
not incorporated) under common control with a Borrower within the
meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA EVENT" means (a) with respect to any Qualified Plan
or Multiemployer Plan, an event set forth in Section 4043 of
ERISA or the regulations thereunder other than any such event for
which the 30-day notice requirement under ERISA has been waived
in regulations issued by the PBGC; (b) a withdrawal by a Borrower
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or any ERISA Affiliate from a Qualified Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA); (c) a
complete or partial withdrawal by a Borrower or any ERISA
Affiliate from a Multiemployer Plan or cessation of operations at
a facility by a Borrower or an ERISA Affiliate described in
Section 4062(e) of ERISA; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination
under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or
Multiemployer Plan subject to Title IV of ERISA; (e) a failure by
a Borrower or any member of the Controlled Group to make required
contributions to a Qualified Plan or Multiemployer Plan; (f) an
event or condition which constitutes grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee
to administer, any Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon a Borrower or any ERISA Affiliate; (h) an application for a
funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Plan;
(i) a non-exempt prohibited transaction occurs with respect to
any Plan for which a Borrower or any Subsidiary of a Borrower
could reasonably be expected to be directly or indirectly liable;
or (j) a violation of the applicable requirements of Section 404
or 405 of ERISA or the exclusive benefit rule under Section
401(a) of the Code by any fiduciary or disqualified person with
respect to any Plan for which a Borrower or any member of the
Controlled Group could reasonably be expected to be directly or
indirectly liable.
"EUROCURRENCY ADVANCE" means an Advance which bears interest
at a rate per annum determined on the basis of a Eurocurrency
Rate.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the U.S.
Federal Reserve System, as in effect from time to time.
"EUROCURRENCY RATE" means, for the Interest Period for each
Eurocurrency Advance comprising part of the same Borrowing, the
interest rate per annum determined by the Agent to be the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the average
offered rates for deposits in Dollars or in the relevant
Alternative Currency which appear on Telerate page 3750 (or as
the case may be, Telerate page 3740 or Telerate page 20339, or
any Telerate page from which quotations for the relevant rates
are available) as at or about 11:00 a.m., London time, two
Business Days before the first day of such Interest Period or, if
no such offerred rates appear on the relevant Telerate page, the
average rate of interest per annum (a) at which deposits in
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Dollars or in the relevant Alternative Currency, other than
Belgian francs, are offered by the principal office of Credit
Lyonnais in London, England to prime banks in the London
interbank market at 11:00 a.m. (London time) or (b) at which
Belgian francs are offered by the principal office of Credit
Lyonnais Belgium to prime banks in the Brussels interbank market
at 11:00 a.m. (Brussels time) two Business Days before the first
day of such Interest Period in an amount substantially equal to
such Borrowing and for a period equal to such Interest Period.
The Eurocurrency Rate for the Interest Period for each
Eurocurrency Advance comprising part of the same Borrowing shall
be determined by the Agent on the basis of applicable rates
obtained by the Agent two Business Days before the first day of
such Interest Period.
"EUROCURRENCY RESERVE PERCENTAGE" of any Lender for any
Interest Period for a Eurocurrency Advance means the reserve
percentage applicable during such Interest Period (or if more
than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest
Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of
Governors of the U.S. Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Lender with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning specified in Section
8.01.
"EXPIRATION DATE" means December 14, 1996 or, if this
Agreement is extended as contemplated in Section 2.08 hereof, the
last date of the term as so extended.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the U.S. Federal Reserve System
arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles in the
United States as set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements
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and pronouncements of the Financial Accounting Standards Board
(or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), consistently
applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"HAZARDOUS MATERIALS" means all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste,
hazardous constituent, hazardous chemicals, special waste,
hazardous substance, hazardous material, regulated substance, or
toxic substance, or petroleum or petroleum derived substance or
waste.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property
or services (other than trade payables incurred in the ordinary
course of business pursuant to ordinary terms); (c) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or
businesses; (d) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred
as financing, in either case with respect to property acquired by
the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to
repossession or sale of such property); (e) all obligations which
under GAAP would be classified as capital leases; and
(f) liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA.
"INSOLVENCY PROCEEDING" means (a) any case, action or
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each case (a) and (b)
undertaken under U.S. federal, state or foreign law, including
the U.S. Bankruptcy Code.
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"INTEREST PAYMENT DATE" means:
(a) with respect to any Eurocurrency Advance, the last
day of an Interest Period applicable to such Advance; and
(b) with respect to any Base Rate Advance,
(i) the last Business Day of each month for Base
Rate Advances outstanding during such month,
(ii) the Termination Date,
(iii) each date a Base Rate Advance is converted
into a Eurocurrency Advance; and
(iv) the date of any prepayment of a Base Rate
Advance pursuant to Section 2.11(a).
"INTEREST PERIOD" means, with respect to any Eurocurrency
Advance, the period commencing on the Business Day the Advance is
disbursed or continued or on the Conversion Date on which the
Advance is converted to a Eurocurrency Advance and ending on the
date one (1), two (2), three (3) or six (6) months thereafter, as
selected by a Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
(a) if any Interest Period pertaining to a
Eurocurrency Advance would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended
to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
(b) any Interest Period pertaining to a Eurocurrency
Advance that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the
Termination Date.
"LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its Lending Office beneath its
name on its signature page hereto or such other office of such
Lender as such Lender may from time to time specify to the
Borrowers, the Agent and the Lenders.
"LENDER ADVANCE PERCENTAGES" has the meaning specified in
Section 2.01.
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"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or other security interest
(including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest
of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing,
or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any
comparable law) and any contingent or other agreement to provide
any of the foregoing.
"MARGIN STOCK" means "margin stock" as such term is defined
in Regulation G, T, U or X of the U.S. Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of
RPM and its Subsidiaries on a consolidated basis.
"MOODY'S" means Moody's Investor Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (within
the meaning of Section 4001(a)(3) of ERISA) and to which any
member of the Controlled Group makes, is making, or is obligated
to make contributions or, during the preceding three calendar
years, has made, or been obligated to make, contributions.
"NOTICE OF BORROWING" means a notice given by a Borrower to
the Agent pursuant to Section 2.02, in substantially the form of
EXHIBIT B.
"NOTICE OF CONVERSION/CONTINUATION" means a notice given by
the Borrower to the Agent pursuant to Section 2.03, in
substantially the form of EXHIBIT C.
"OBLIGATIONS" means all Advances, guaranty obligations, and
other Indebtedness, liabilities, obligations, covenants and
duties owing by the Borrowers to any Lender, the Agent, or any
other Person required to be indemnified hereunder, of any kind or
nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, arising under this Agreement,
whether or not for the payment of money, whether arising by
reason of an extension of credit, a loan, guaranty,
indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter
arising and however acquired.
"OTHER TAXES" has the meaning specified in Section 2.13(b).
"PBGC" means the U.S. Pension Benefit Guaranty Corporation.
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"PAYMENT OFFICE" means, for Dollars, CLCB's office in
Chicago, Illinois, located on the date hereof at 227 West Monroe
Street, Chicago, Illinois 60606, and, for any Alternative
Currency, such office of Credit Lyonnais as shall be from time to
time selected by the Agent and notified by the Agent to the
Borrowers and the Lenders.
"PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PLAN" means an employee benefit plan (as defined in Section
3(3) of ERISA) which RPM or any member of the Controlled Group
sponsors or maintains or to which RPM or any member of the
Controlled Group makes, is making or is obligated to make
contributions.
"PERMITTED LIENS" has the meaning specified in Section 7.01.
"QUALIFIED PLAN" means a pension plan (as defined in Section
3(2) of ERISA) intended to be tax-qualified under Section 401(a)
of the Code and which any member of the Controlled Group
sponsors, maintains, or to which it makes, is making or is
obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding period
covering at least five (5) plan years, but excluding any
Multiemployer Plan.
"RPM SUBORDINATED DEBT" means those certain twenty-year
Liquid Yield Option Notes issued by RPM in 1992 in the aggregate
principal amount of $400,000,000.
"S&P" means Standard & Poor's Corporation.
"SEC" means the Securities and Exchange Commission of the
United States of America.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more
than 50% of the voting stock or other equity interests (in the
case of Persons other than corporations), is owned or controlled
directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof.
"SUBSIDIARY OBLIGATIONS" means Obligations which are owed by
any Subsidiary Borrower.
"TAXES" has the meaning specified in Section 2.13(a).
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"TERMINATION DATE" means the earlier of the Expiration Date
or the date of termination in whole of the Commitment pursuant to
Section 2.05 or 8.02.
"TYPE" means, with reference to an Advance, a Base Rate
Advance or a Eurocurrency Advance.
"UCC" means the Uniform Commercial Code as promulgated by
the American Law Institute and the National Conference of
Commissioners on Uniform State Laws in the United States.
"UNFUNDED PENSION LIABILITIES" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined as of the date of
the most recently completed actuarial valuation with respect to
the Plan in accordance with the assumptions used by the Plan's
actuaries for funding the Plan pursuant to section 412 for the
applicable plan year.
"UNITED STATES" and "U.S." each means United States of
America.
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which
(other than directors' qualifying shares required by law) 100% of
the capital stock of each class having ordinary voting power, and
100% of the capital stock of every other class, in each case, at
the time as of which any determination is being made, is owned,
beneficially and of record, by a Borrower, or by one or more of
the other Wholly-Owned Subsidiaries, or both.
"WITHDRAWAL LIABILITIES" means, as of any determination
date, the aggregate amount of the liabilities, if any, pursuant
to Section 4201 of ERISA if the Controlled Group made a complete
withdrawal from all Multiemployer Plans and any increase in
contributions pursuant to Section 4243 of ERISA.
1.02. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with
GAAP as consistently applied in the preparation of the financial
statements referred to in Section 5.05.
1.03. CURRENCY EQUIVALENTS GENERALLY. For all purposes of
this Agreement other than Article II, the equivalent in any
Alternative Currency of an amount in Dollars shall be determined
at the rate of exchange quoted by Credit Lyonnais Belgium in
Brussels, Belgium, at 11:00 a.m. (Brussels time) on the date of
determination, to prime banks in Brussels for the spot purchase
in the Brussels foreign exchange market of such amount of Dollars
with such Alternative Currency.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. THE ADVANCES. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances in
accordance with the "Lender Advance Percentages" set forth in
SCHEDULE 2.01 hereto to the Borrowers from time to time on any
Business Day during the period from the date hereof until
(a) with respect to Eurocurrency Advances, the date falling one
month prior to December 14, 1996 and (b) with respect to Base
Rate Advances, December 12, 1996. The aggregate amount of all
the Lenders' Advances shall not exceed (whether in Dollars or in
one or more Alternative Currencies) at any time outstanding the
equivalent of $30,000,000 (as such amount may be reduced from
time to time pursuant to Section 2.05) (the "Commitment"). Each
Borrowing shall be in an aggregate amount not less than
$1,000,000 (or the equivalent thereof in any Alternative
Currency) or an integral multiple of $1,000,000 (or the
equivalent thereof in any Alternative Currency) in excess thereof
and shall consist of Advances made to the same Borrower on the
same day by the Lenders ratably according to the Lender Advance
Percentages. Within the limits of the Commitment, each Borrower
may borrow, repay and reborrow under this Section 2.01. For
purposes of this Section 2.01 and all other provisions of this
Article II, the equivalent in Dollars of any Alternative Currency
or the equivalent in any Alternative Currency of Dollars or of
any other Alternative Currency shall be determined in accordance
with Section 2.17.
2.02. MAKING THE ADVANCES.
(a) Each Borrowing shall be made on a Borrower's
irrevocable written notice (or telephonic notice, promptly
confirmed by a writing) delivered to the Agent in the form
of a Notice of Borrowing (which notice must be received by
the Agent not later than 10:00 a.m. (Chicago time)):.
(i) three Business Days prior to the requested
date of a proposed Borrowing consisting of Eurocurrency
Advances, and
(ii) two Business Days prior to the requested date
of a proposed Borrowing consisting of Base Rate
Advances.
The Notice of Borrowing shall specify (i) the requested date
of such Borrowing, which shall be a Business Day, (ii) the
name of the Borrower, (iii) the aggregate amount of such
Borrowing, (iv) whether the Borrowing is to be comprised of
Eurocurrency Advances or Base Rate Advances; (v) the
currency of such Borrowing and (vi) the Interest Period for
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each Eurocurrency Advance to be made as part of such
Borrowing.
(b) The Agent shall promptly notify each Lender upon
receipt of a Notice of Borrowing and of such Lender's pro
rata share (pursuant to the Lender Advance Percentages)
thereof. If the Borrowing is in an Alternative Currency,
the Agent shall also state the aggregate equivalent amount
of such Borrowing in Dollars and such Lender's ratable
portion of such Borrowing.
(c) Each Lender shall, before 10:00 a.m. (Chicago
time) on the date of such Borrowing, make available to the
Agent at the Agent's applicable Payment Office its pro rata
share (pursuant to the Lender Advance Percentages) of the
Borrowing in the requested currency. The Agent will make
such funds available to the Borrower at the applicable
Payment Office.
(d) After giving effect to any Borrowing, conversion
or continuation, there shall not be more than five
different Interest Periods in effect, and there shall not be
more than five Borrowing(s) per month.
2.03. CONVERSION AND CONTINUATION ELECTIONS.
(a) Prior to thirty days before the Termination Date,
a Borrower may upon irrevocable written notice (or
telephonic notice, promptly confirmed by a writing) to the
Agent in accordance with Section 2.03(b):
(i) elect to convert on any Business Day, any
Base Rate Advances (or any part thereof in an amount
not less than $1,000,000 (or the equivalent in an
Alternative Currency of $1,000,000) or an integral
multiple thereof) made to it to Eurocurrency Advances
or to Base Rate Advances in another Alternative
Currency of Dollars; or
(ii) elect to convert on any Interest Payment Date
any Eurocurrency Advances maturing on such Interest
Payment Date (or any part thereof in an amount not less
than $1,000,000 (or the equivalent in an Alternative
Currency of $1,000,000) or an integral multiple
thereof) to Base Rate Advances or to Eurocurrency
Advances in another Alternative Currency or Dollars; or
(iii) elect to continue on any Interest Payment
Date any Eurocurrency Advances maturing on such
Interest Payment Date (or any part thereof in an amount
not less than $1,000,000 (or the equivalent in an
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Alternative Currency of $1,000,000)) or an integral
multiple thereof).
(b) Each Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Agent not
later than 10:00 a.m. (Chicago time) at least (i) three
Business Days in advance of the Conversion Date or
continuation date, if the Advances are to be converted into
or continued as Eurocurrency Advances and (ii) two Business
Days in advance of the Conversion Date, if the Advances are
to be converted into Base Rate Advances, specifying:
(A) the proposed Conversion Date or continuation
date;
(B) the aggregate amount of Advances to be
converted or renewed;
(C) the nature of the proposed conversion or
continuation; and
(D) the duration of the requested Interest
Period.
(c) If, upon the expiration of any Interest Period, a
Borrower has failed to select a new Interest Period to be
applicable to its Eurocurrency Advances or if any Default or
Event of Default then exists, such Borrower shall be deemed
to have elected to convert such Eurocurrency Advances into
Base Rate Advances (in the same currency) effective as of
the expiration date of such Interest Period.
(d) Upon receipt of a Notice of Conversion/
Continuation, the Agent will promptly notify each Lender
thereof, or, if no timely notice is provided by a Borrower,
the Agent will promptly notify each Lender of the details of
any automatic conversion. All conversions and continuations
shall be made pro rata according to the outstanding
principal amounts of the Advances of each Lender with
respect to which the notice was given.
(e) During the existence of a Default or Event of
Default, no Borrower may elect to have an Advance made,
converted into or continued as a Eurocurrency Advance.
2.04. FEES.
(a) COMMITMENT FEE. RPM agrees to pay to the Agent
for the account of each Lender in accordance with its
Allocation Percentage a commitment fee on the average daily
unused portion of the Commitment from the date hereof until
the Termination Date, payable on the last day of each March,
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June, September and December commencing December 31, 1993,
and on the Termination Date, at the rate of one-quarter of
one percent (1/4%) per annum.
(b) FACILITY FEE. RPM agrees to pay to the Agent on
the Closing Date for the account of each Lender in
accordance with its Allocation Percentage a facility fee
equal to one-tenth of one percent (1/10%) of $30,000,000.
2.05. VOLUNTARY REDUCTION OF THE COMMITMENT. RPM shall
have the right, upon at least three (3) Business Days' notice to
the Agent, to terminate in whole or reduce in part the unused
portion of the Commitment; PROVIDED, HOWEVER, that each partial
reduction shall be in the aggregate amount of $1,000,000 (or the
equivalent in any Alternative Currency) or an integral multiple
of $1,000,000 (or the equivalent in any Alternative Currency) in
excess thereof.
2.06. REPAYMENT. The Borrowers shall repay the principal
amount of all Advances on the Termination Date.
2.07. INTEREST.
(a) Each Borrower shall pay to the Agent for the
account of each Lender interest on the unpaid principal
amount of each Advance made to it by such Lender from the
date of such Advance until such Advance is paid in full, at
a rate per annum equal to:
(i) with respect to a Eurocurrency Advance, the
sum of (x) the Eurocurrency Rate for such Interest
Period plus (y) the Applicable Margin and
(ii) with respect to a Base Rate Advance, the Base
Rate.
(b) Interest on each Advance shall be paid in arrears
on each Interest Payment Date relating to such Advance.
During the existence of an Event of Default, interest shall
be paid on demand.
(c) During the continuance of an Event of Default and
after acceleration, the Borrowers shall pay interest on the
principal amount of all Obligations due and payable at a
rate per annum equal to 2% above the rate per annum required
to be paid.on such Advance immediately prior to the date on
which such amount became due.
(d) The Agent shall give prompt notice to the
Borrowers and the Lenders of the applicable interest rate;
PROVIDED that any failure to do so shall not relieve the
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Borrowers of any liability hereunder or provide the basis
for any claim against the Agent.
(e) All computations of fees and interest under this
Agreement shall be made on the basis of a 360-day year and actual
days elapsed. Each determination of an interest rate by the
Agent pursuant hereto shall be conclusive and binding on the
Borrowers and the Lenders in the absence of manifest error.
2.08. EXTENSION OF TERM. Once a year, beginning in 1994,
the Lenders, upon the request of RPM, will determine, in their
sole and absolute discretion, whether to extend the current
Expiration Date of this Agreement by one year; PROVIDED that RPM
makes its extension request to the Agent in writing at least 60
days, but not more than 90 days before December 14th of that
year. The Agent shall then notify RPM of the Lenders' decision
no later than 30 days before December 14th of that year. If the
Lenders decide to extend the Expiration Date, such extension
shall be effective on the effective date of a written amendment
so extending the Expiration Date, executed by the Agent, each
Lender and each Borrower.
2.09. ADDITIONAL INTEREST ON EUROCURRENCY ADVANCES. The
Borrowers shall pay to each Lender, when and if such Lender is
required under regulations of the Board of Governors of the U.S.
Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount
of each Eurocurrency Advance of such Lender from the date of each
such Eurocurrency Advance until the principal amount is paid in
full at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurocurrency Rate for
the Interest Period for such Eurocurrency Advance from (ii) the
rate obtained by dividing such Eurocurrency Rate by a percentage
equal to 100% minus the Eurocurrency Reserve Percentage of such
Lender for such Interest Period, payable on each date on which
interest is payable on such Eurocurrency Advance. Such
additional interest shall be determined by such Lender and
notified to the Borrowers through the Agent. Such determination
shall be conclusive and binding for all purposes, absent manifest
error.
2.10. INCREASED COSTS, ETC.
(a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from
any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in
the cost to any Lender of agreeing to make or making,
funding or maintaining Eurocurrency Advances (other than the
additional amounts referred to in Section 2.09), then the
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Borrowers shall from time to time, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased
cost. A certificate as to the amount of such increased
cost, submitted to RPM and the Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any
central bank or other Governmental Authority (whether or not
having the force of law) affects or would affect the amount
of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and
other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the
Borrowers shall immediately pay to the Agent for the account
of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to RPM and the
Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
2.11. PREPAYMENTS; FUNDING LOSSES.
(a) Prepayments of Base Rate Advances are permitted on
two Business Days' written notice to the Agent. Prepayments
of Eurocurrency Advances are permitted on three Business
Days' written notice to the Agent, PROVIDED, that any
Borrower who prepays a Eurocurrency Advance reimburses each
Lender for its losses or expenses incurred or sustained as a
consequence of such prepayment in accordance with
Section 2.11(b).
(b) The Borrowers agree to reimburse each Lender and
to hold each Lender harmless from any loss or expense which
such Lender sustains or incurs as a consequence of:
(i) the failure of any Borrower to make any
payment or required prepayment of principal of any
Eurocurrency Advance (including payments made after any
acceleration thereof);
(ii) the failure of any Borrower to borrow,
continue or convert an Advance after such Borrower has
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given a Notice of Borrowing or a Notice of Conversion/
Continuation;
(iii) the failure of any Borrower to make any
prepayment permitted hereunder after giving notice
thereof;
(iv) the repayment of a Eurocurrency Advance
on a day which is not the last day of the Interest
Period with respect thereto; or
(v) the conversion of any Eurocurrency
Advance to a Base Rate Advance on a day that is not the
last day of the respective Interest Period;
including any such loss or expense (including any loss of income)
arising from the liquidation or reemployment of funds obtained by
it to maintain its Eurocurrency Advances hereunder or from fees
payable to terminate the deposits from which such funds were
obtained. Reemployment costs shall include the amount (if any)
by which the amount of interest which such Lender is able to
obtain for the remainder of the period of the Eurocurrency
Advance by placing the principal amount repaid by the Borrower on
deposit in the applicable interbank market IS LESS than the
amount of interest which would have accrued on the amount prepaid
for the remaining period thereon if no repayment had taken place.
A certificate delivered by the Agent as to the determination of
the reemployment cost shall be conclusive and binding on the
Borrower absent manifest error. Solely for purposes of
calculating amounts payable by the Borrowers to the Lenders under
this Section 2.11, each Eurocurrency Advance made by a Lender
(and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded by
a matching deposit in Dollars or an Alternative Currency or other
borrowing in the interbank eurocurrency market for a comparable
amount and for a comparable period, whether or not such
Eurocurrency Advance is in fact so funded.
2.12. INABILITY TO DETERMINE RATES. If the Agent
determines that for any reason adequate and reasonable means do
not exist for ascertaining the rate for any requested Interest
Period with respect to a proposed Eurocurrency Advance, or the
rate for any requested Interest Period with respect to a proposed
Eurocurrency Advance does not fairly reflect the cost to the
Lenders of funding such Advance, the Agent will give notice of
the determination to the Borrowers and each Lender. Thereafter,
the obligation of the Lenders to make or maintain Eurocurrency
Advances hereunder shall be suspended until the Agent revokes
such notice in writing. Upon receipt of the Agent's notice of
its inability to determine rates, the Borrowers may revoke any
Notice of Borrowing or Notice of Conversion/Continuation. If the
applicable Borrower does not revoke such notice, the Lenders
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shall make, convert or continue the Advances, as proposed by the
Borrower, in the amount specified in the applicable notice
submitted by the Borrower, but such Advances shall be made,
converted or continued as Base Rate Advances (in the same
currency) instead of Eurocurrency Advances.
2.13. TAXES.
(a) Any and all payments by the Borrowers hereunder
shall be made free and clear of and without deduction or
withholding for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, in the case of
each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the
laws of which such Lender or the Agent (as the case may be)
is organized or any political subdivision thereof and, in
the case of each Lender, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction of such
Lender's Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrowers or the Agent
shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the
Agent, (i) the sum payable by the Borrowers shall be
increased as may be necessary so that after the Borrowers or
the Agent has made all required deductions (including
deductions applicable to additional sums payable under this
Section 2.13) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrowers or the
Agent shall make such deductions and (iii) the Borrowers or
the Agent shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Borrower agrees to pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which
arise from any payment made by such Borrower or by the Agent
hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender and the
Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 2.13) paid by such Lender or the Agent (as the case
may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This
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indemnification shall be made within 30 days from the date
such Lender or the Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment by
any Borrower of Taxes, such Borrower will furnish to the
Agent the original or a certified copy of a receipt
evidencing payment thereof. If no Taxes are payable in
respect of payments by such Borrower hereunder, such
Borrower, upon reasonable request by Agent, will furnish to
the Agent a certificate from each appropriate taxing
authority, unless it shall have previously delivered an
opinion of counsel acceptable to the Agent, in either case
stating that such payment is exempt from or not subject to
Taxes. In the event of a change in circumstances or law
affecting the conclusions stated in any such opinion,
another opinion of counsel acceptable to the Agent shall be
delivered to the Agent by the affected Borrower.
(e) Prior to the date of the initial Borrowing and
from time to time thereafter if requested by any Borrower or
the Agent, each Lender organized under the laws of a
jurisdiction outside the United States shall provide the
Agent and the Borrower with the forms prescribed by the
Internal Revenue Service of the United States certifying as
to such Lender's status for purposes of determining
exemption from United States withholding taxes with respect
to all payments to be made to such Lender hereunder or other
documents satisfactory to the Borrowers and the Agent which
shall indicate that all payments to be made to such Lender
hereunder are subject to such taxes at a rate reduced by an
applicable tax treaty. Unless the Borrowers and the Agent
have received forms (such as IRS Form 1001 or Form 4224) or
other documents satisfactory to them, indicating that
payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced
by an applicable tax treaty, the Borrowers or the Agent
shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the
United States. In no event shall a Borrower be required to
pay any additional amounts to the Agent or any Lender under
Section 2.13(a) as a result of, or in connection with, the
failure of a Lender to comply with this Section 2.13(e).
(f) In order to avoid the incurrence, or minimize the
amount, of any Taxes or Other Taxes, each Lender agrees to
designate a different Lending Office with respect to its
Eurocurrency Advances if such designation will reduce or
prevent the incurrence of such Taxes or Other Taxes and will
not, in the judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
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2.14. ILLEGALITY.
(a) If any Lender determines that the introduction of
any law or regulation, or any change in any law or
regulation or in the interpretation or administration
thereof, has made it unlawful, or that any central bank or
other Governmental Authority has asserted that it is
unlawful, for any Lender or its Lending Office to make
Eurocurrency Advances, then, on notice thereof by the Lender
to the Borrowers through the Agent, the obligation of that
Lender to make Eurocurrency Advances shall be suspended
until the Lender has notified the Agent and the Borrowers
that the circumstances giving rise to such determination no
longer exists.
(b) If a Lender determines that it is unlawful to
maintain any Eurocurrency Advance, the Borrowers shall
prepay in full all Eurocurrency Advances of that Lender then
outstanding, together with interest accrued thereon, either
on the last day of the Interest Period thereof if the Lender
may lawfully continue to maintain such Eurocurrency Advances
to such day, or immediately, if the Lender may not lawfully
continue to maintain such Eurocurrency Advances.
(c) If the Borrowers are required to prepay any
Eurocurrency Advances immediately as provided in Section
2.14(b), then concurrently with such prepayment, such
Borrowers shall borrow from the affected Lender, in the
amount of such repayment, a Base Rate Advance.
(d) Before giving any notice to the Agent pursuant to
this Section 2.14, the affected Lender shall designate a
different Lending Office with respect to its Eurocurrency
Advances if such designation will avoid the need for giving
such notice or making such demand and will not, in the
judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
2.15. SHARING OF PAYMENTS, ETC. If any Lender obtains any
payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Advances
made by it in excess of its ratable share of payments on account
of the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in
the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them, PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
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of (a) the amount of such Lender's required repayment to (b) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation. The provisions of this
Section 2.15 shall survive the payment of all Obligations.
2.16. EVIDENCE OF INDEBTEDNESS.
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from
each Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(b) The Agent shall maintain a control account and a
subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, (ii) the name of the Borrower,
(iii) the Type of Advances comprising such Borrowing and the
Interest Period applicable thereto and, if such Advances are
Eurocurrency Advances, the currency in which such Advances
are made, (iv) the amount of any principal or interest due
and payable or to become due and payable from each Borrower
to each Lender hereunder, and (v) the amount of any sum
received by the Agent from the Borrowers hereunder and each
Lender's share thereof.
(c) Such entries made by the Agent shall be conclusive
and binding for all purposes, absent manifest error.
2.17. CURRENCY EQUIVALENTS. For purposes of the provisions
of this Article II, (a) the equivalent in Dollars of any
Alternative Currency shall be determined by using the quoted spot
rate at which Credit Lyonnais Belgium's principal office in
Brussels offers to exchange Dollars for such Alternative Currency
in Brussels at 11:00 a.m. (Brussels time) two Business Days prior
to the date on which such equivalent is to be determined, (b) the
equivalent in any Alternative Currency of any other Alternative
Currency shall be determined by using the quoted spot rate at
which Credit Lyonnais Belgium's principal office in Brussels
offers to exchange such Alternative Currency for the equivalent
in Dollars of such other Alternative Currency in Brussels at
11:00 a.m. (Brussels time) two Business Days prior to the date on
which such equivalent is to be determined, and (c) the equivalent
in any Alternative Currency of Dollars shall be determined by
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using the quoted spot rate at which Credit Lyonnais Belgium's
principal office in Brussels offers to exchange such Alternative
Currency for Dollars in Brussels at 11:00 a.m. (Brussels time)
two Business Days prior to the date on which such equivalent is
to be determined.
2.18 CURRENCY FLUCTUATIONS. If, on any Interest Payment
Date related to a Eurocurrency Advances, the aggregate principal
amount of all the Advances (after converting each Eurocurrency
Advance to its U.S. Dollar equivalent on the date of calculation)
is equal to or greater than 120% of the Commitment then in
effect, then at the option of any Lender upon five Business Days'
written notice to the Company, the Company shall prepay or shall
cause one or more other Borrowers to prepay, an aggregate
principal amount of Advances such that the outstanding principal
balance of the Advances does not exceed the Commitment. In lieu
of requiring this payment under this Section 2.18, the Agent may,
with the unanimous consent of all of the Lenders, in their
absolute and sole discretion, increase the amount of the
Commitment.
2.19. SURVIVAL. The agreements and obligations of the
Borrowers in Sections 2.09 through 2.11 and 2.13 shall survive
for a period of one year beyond the later of (a) the Termination
Date and (b) the payment of all other Obligations.
ARTICLE III
GUARANTY
3.01. GUARANTY. RPM unconditionally guarantees the
punctual payment and performance when due, in Dollars (or the
equivalent thereof in any Alternative Currency), whether at
stated maturity, by acceleration or otherwise, of all Subsidiary
Obligations.
3.02. GUARANTY ABSOLUTE. This is a guaranty of payment and
not of collection. RPM guarantees that the Subsidiary
Obligations will be paid strictly in accordance with the terms of
this Agreement. The Obligations of RPM under this guaranty are
independent of the Subsidiary Obligations, and a separate action
or actions may be brought and prosecuted against RPM to enforce
this guaranty, whether or not any action is brought against the
Subsidiary Borrowers or whether the Subsidiary Borrowers are
joined in any such action or actions. This guaranty shall
continue to be effective or shall be reinstated, as the case may
be, if at any time any payment of any of the Subsidiary
Obligations is rescinded or must otherwise be returned by the
Lenders upon the insolvency, bankruptcy or reorganization of any
of the Subsidiary Borrowers or otherwise, all as though such
payment had not been made. The liability of RPM under this
guaranty shall be absolute and unconditional irrespective of:
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(a) any lack of validity or enforceability of any
other portion of this Agreement (including, without
limitation, the validity or enforceability against the
Subsidiary Borrowers of the Subsidiary Obligations) or any
other agreement or instrument relating hereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Subsidiary
Obligations, or any other amendment or waiver of or any
consent to departure from this Agreement, including, without
limitation, any increase in the Subsidiary Obligations
resulting from the extension of additional credit to the
Subsidiary Borrowers or otherwise;
(c) any change, restructuring or termination of the
corporate structure or existence of any of the Subsidiary
Borrowers; or
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Subsidiary Borrowers or a guarantor.
3.03. WAIVER. RPM hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of
the Subsidiary Obligations, and any requirement that the Lenders
exhaust any right or take any action against the Subsidiary
Borrowers or any other Person.
3.04. SUBROGATION. RPM hereby acknowledges and agrees that
any obligations owed by any Subsidiary Borrower to RPM, now or
hereafter arising, in connection with this Agreement or pursuant
to this guaranty are hereby subordinated to the Indebtedness of
the Subsidiary Borrowers to the Lenders and the Agent. RPM
hereby unconditionally agrees that until the payment and
satisfaction in full of all the Subsidiary Obligations, RPM:
(a) shall not exercise any right or remedy arising by reason of
any performance by RPM of its guarantee in this Article III,
whether by subrogation or otherwise, against the Subsidiary
Borrowers or any security for any of the Subsidiary Obligations,
and (b) shall promptly turn over to the Agent any funds or
collateral received by RPM from the Subsidiary Borrowers on
account of or relating to the Subsidiary Obligations or RPM's
payment of any portion to the Subsidiary Obligations (and RPM
shall hold any such funds or collateral in trust for the benefit
of the Lenders until such funds or collateral are delivered to
the Agent); PROVIDED, HOWEVER, RPM shall NOT be obligated to turn
over any funds or collateral received by RPM from the Subsidiary
Borrowers in the ordinary course of business if such funds or
collateral were not paid or delivered to RPM in connection with
the Subsidiary Obligations.
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ARTICLE IV
CONDITIONS OF LENDING
4.01. CONDITION PRECEDENT TO INITIAL ADVANCES. The
obligation of the Lenders to make the initial Advance is subject
to the conditions precedent that the Borrower shall have paid all
fees and expenses due on the Closing Date, and the Agent shall
have received on or before the day of the initial Borrowing the
following, in form and substance satisfactory to the Agent and in
sufficient copies for each Lender:
(a) This Agreement, executed by all the Borrowers;
(b) Certified copies of the resolutions of the Board
of Directors of RPM authorizing the Borrowings provided for
herein and the execution, delivery and performance of this
Agreement; equivalent documents for each Subsidiary
Borrower; and, with respect to all the Borrowers, certified
copies of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to
this Agreement;
(c) Copies of the articles or certificate of
incorporation of RPM, including all amendments thereto and
copies of the by-laws of RPM as in effect on the Closing
Date, with all amendments thereto, certified by the
secretary or assistant secretary of RPM;
(d) An existence and/or good standing certificate for
RPM from the Secretary of State of Ohio as of a recent date;
(e) A certificate of the secretary or an assistant
secretary of RPM certifying the names and true signatures of
the officers of each Borrower authorized to sign this
Agreement and the other documents to be delivered hereunder;
(f) A favorable opinion of Paul A. Granzier, General
Counsel for RPM, substantially in the form of EXHIBIT D
hereto and as to such other matters as any Lender through
the Agent may reasonably request; and
(g) Such other approvals, opinions or documents as the
Agent or any Lender may request.
4.02. CONDITIONS PRECEDENT TO EACH BORROWING. The
obligation of the Lenders to make an Advance is subject to the
satisfaction of the following conditions precedent on or before
the date the relevant Advance is to be made:
(a) With respect to each Borrowing, conversion or
continuation, the Agent shall have received a Notice of
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Borrowing or a Notice of Continuation/Conversion, as
applicable.
(b) The representations and warranties made by the
Borrowers contained in Article V shall be true and correct
on and as of the date of each Borrowing with the same effect
as if made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of
such earlier date).
(c) No Default or Event of Default shall exist or
shall result from such Advance.
(d) The Borrowers shall have paid all fees and
expenses due at such time.
Each Notice of Borrowing or Notice of Continuation/Conversion
submitted by a Borrower hereunder shall constitute a
representation and warranty by such Borrower hereunder, as of the
date of each such notice and as of the date of the making of each
Advance, that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
With respect to Sections 5.05 and 5.06, RPM represents and
warrants, and with respect to Sections 5.01 through 5.04 and
Sections 5.07 through 5.17, each Borrower represents and warrants
as follows:
5.01. DUE ORGANIZATION. Such Borrower is a corporation
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation as indicated at the
beginning of this Agreement, and is duly qualified as a foreign
corporation and in good standing under the laws of each
jurisdiction in which it owns or leases real property or in which
such qualification is otherwise required.
5.02. DUE AUTHORIZATION. The execution, delivery and
performance by such Borrower of this Agreement are within such
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) such
Borrower's charter or by-laws or (ii) any law or contractual
restriction binding on or affecting such Borrower.
5.03. NO GOVERNMENTAL APPROVAL. No authorization or
approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body is required for the due
execution, delivery and performance by such Borrower of this
Agreement.
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5.04. ENFORCEABLE AGREEMENT. This Agreement is the legal,
valid and binding obligation of such Borrower enforceable against
such Borrower in accordance with its terms. The guaranty
contained in Article III is enforceable against RPM in accordance
with its terms.
5.05. FINANCIAL INFORMATION. The consolidated balance
sheets of RPM and its Subsidiaries as of May 31, 1993, and the
related consolidated statements of income and retained earnings
of RPM and its Subsidiaries for the fiscal year then ended,
copies of which have been furnished to each Lender, fairly
present the financial condition of RPM and its Subsidiaries as at
such date and the results of the operations of RPM and its
Subsidiaries for the period ended on such date, all in accordance
with GAAP consistently applied, and since May 31, 1993, there has
been no material adverse change in such condition or operations.
5.06. LITIGATION. There is no pending or threatened action
or proceeding affecting RPM or any of its Subsidiaries before any
court, Governmental Authority or arbitrator, that has not been
previously disclosed in RPM's filings with the SEC, or that may
result in a Materially Adverse Effect, or that purports to affect
the legality, validity or enforceability of this Agreement as to
any one of the Borrowers, except as disclosed on Schedule 5.06
attached hereto.
5.07. MARGIN STOCK. Such Borrower is not engaged in the
business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued
by the Board of Governors of the U.S. Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
5.08. NO DEFAULT. No Default or Event of Default has
occurred and is continuing or would result from the incurring of
any Obligations by such Borrower. Such Borrower is not in
default under or with respect to any material Contractual
Obligation.
5.09. ERISA COMPLIANCE. Each ERISA Affiliate has fulfilled
its obligations under the minimum funding standards of ERISA and
the Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of
ERISA and the Code with respect to each Plan or will be in such
compliance prior to the expiration of the remedial amendment
period permitted under Section 401(b) of the Code as such
remedial amendment period shall be extended by the Internal
Revenue Service. No ERISA Affiliate has (a) sought a waiver of
the minimum funding standard under Section 412 of the Code in
respect of any Plan, (b) failed to make any contribution or
payment to any Plan or made any amendment to any Plan, which has
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resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code or
(c) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
5.10. TITLE TO PROPERTIES. Such Borrower has good and
marketable title to each item of real or personal property
purported to be owned by it (including intangibles such as
trademarks and patents) and a valid, enforceable and marketable
leasehold interest in each item of real and personal property
purported to be leased by it, in each case free and clear of all
Liens other than Permitted Liens.
5.11. TAXES. Such Borrower has filed all tax returns and
reports required to be filed by any Governmental Authority, and
has paid all taxes, assessments, fees and other governmental
charges levied or imposed upon it or its properties, income or
assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP (or
the comparable accounting standards of such Borrower's country),
and no notice of lien has been filed or recorded. There is no
proposed tax assessment against such Borrower which would, if the
assessment were made, reasonably be expected to adversely affect
the ability of the Lenders to collect the Advances.
5.12. ENVIRONMENTAL MATTERS. Except as has been previously
reported in RPM's filings with the SEC or as is specifically
disclosed in SCHEDULE 5.12:
(a) The on-going operations of such Borrower comply
in all material respects with all Environmental Laws, except
for those circumstances that would not (if enforced in
accordance with applicable law) result in liability that
would reasonably be expected to have a Material Adverse
Effect.
(b) Neither such Borrower nor any of its property or
operations is subject to any outstanding written order from
or agreement with any Governmental Authority nor subject to
any judicial or docketed administrative proceeding,
respecting any Environmental Law, Environmental Claim or
Hazardous Material that the outcome or result of which would
reasonably be expected to have a Material Adverse Effect.
(c) There are no Hazardous Materials or other
conditions or circumstances existing with respect to any
property, or arising from operations, of such Borrower or
any of its Subsidiaries that would reasonably be expected to
give rise to Environmental Claims with a potential liability
that in the aggregate for any such condition, circumstance
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or property would reasonably be expected to have a Material
Adverse Effect.
5.13. USE OF PROCEEDS. The proceeds of the Advances are
being used by such Borrower for general corporate purposes
(including debt refinancing) and will not be used for the
purchase or carrying of Margin Stock in violation of
Regulations U or X of the Board of Governors of the U.S. Federal
Reserve System.
5.14. REGULATED ENTITIES. The Borrower is not an
"investment company" or an "affiliated person" or a "promoter" or
a "principal underwriter" for an "investment company," as such
terms are defined in the U.S. Investment Company Act of 1940, as
amended.
5.15. SUBSIDIARIES; No Restrictions on Dividends. Such
Borrower has no Subsidiaries other than those specifically
disclosed on SCHEDULE 5.15 attached hereto. No Subsidiary of
such Borrower is prohibited by the terms of any agreement from
paying dividends to such Borrower.
5.16. INSURANCE. The property of such Borrower is insured
with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses
and owning similar properties in localities where such Borrower
operates.
5.17. COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC.
Such Borrower or its Subsidiaries own or are licensed or
otherwise have the right to use all of the patents, trademarks,
service marks, trade names, copyrights, franchises,
authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict
with the rights of any other Person. To the best knowledge of
such Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed,
or now contemplated to be employed by such Borrower or any of its
Subsidiaries, infringes upon any rights held by any other Person.
Except as specifically disclosed in SCHEDULE 5.06, no claim or
litigation regarding any of the foregoing is pending or
threatened, and no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of such Borrower, proposed, that
has not been previously disclosed in RPM's filings with the SEC,
which, in either case, could reasonably be expected to have a
Material Adverse Effect.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Advance or other Obligation remains unpaid or
unsatisfied or the Commitment remains available, with respect to
Sections 6.04 through 6.11, each Borrower will, and will cause
its Subsidiaries to, and with respect to Sections 6.01 through
6.03, RPM will:
6.01. FINANCIAL STATEMENTS. Deliver to the Agent in form
and detail satisfactory to the Agent with sufficient copies for
each Lender:
(a) as soon as available, but not later than 120 days
after the end of each fiscal year, a copy of the audited
financial statements of such Borrower as of the end of such
fiscal year, setting forth in each case in comparative form
the figures for the previous year, and accompanied by an
opinion of the independent public accounting firm of Ciulla
Stephens & Co. stating that such financial statements
present fairly the financial position of such Borrower as of
the dates indicated and the results of its operations and
cash flows for the periods indicated in conformity with GAAP
(or the comparable accounting standards of its country).
Such opinion shall not be qualified or limited for any
reason, including, without limitation, because of a
restricted or limited examination by such accountant of any
material portion of such Borrower's records; and
(b) as soon as available, but not later than 60 days
after the end of each of such Borrower's three non-year-end
fiscal quarters, a copy of the unaudited financial
statements of such Borrower setting forth its financial
position as of the end of such fiscal quarter and the
results of its operations and its cash flows for such
quarter, prepared in accordance with GAAP (or the comparable
accounting standards of such Borrower's country)
consistently applied.
6.02. CERTIFICATES; OTHER INFORMATION. Furnish to the
Agent with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial
statements referred to in Sections 6.01(a) and (b) above, a
Compliance Certificate, signed by the chief financial
officer of such Borrower, and if any condition or event
which constitutes a Default or any Event of Default existed
or exists, a statement in such certificate specifying the
nature and period of existence thereof and the action such
Borrower has taken, is taking or proposes to take with
respect thereto;
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(b) promptly upon their becoming available,
copies all 10-Q's, 10-K's, 8-K's and all other material
registration statements and all periodic reports, if
any, which such Borrower shall have filed with (i) the
U.S. Securities and Exchange Commission (or any
successor agency), (ii) any national security exchange
or (iii) any other Governmental Authority; and
(c) promptly, such additional business, financial,
corporate affairs and other information as the Agent, at the
request of any Lender, may from time to time reasonably
request.
6.03. NOTICES. Promptly notify the Agent and each Lender
of the following conditions, events or situations to the extent
they have not been previously disclosed in RPM's filings with the
SEC:
(a) the occurrence of any Default or Event of Default;
(b) (i) any breach or non-performance of, or any
default under, any Contractual Obligation of such Borrower
which could result in a Material Adverse Effect; and
(ii) any dispute, litigation, investigation, proceeding or
suspension which may exist at any time between such Borrower
and any Governmental Authority which could result in a
Material Adverse Effect;
(c) the commencement of, or any material development
in, any litigation or proceeding affecting such Borrower
(i) which has a reasonable possibility of resulting in
liability to the Borrower in the amount of $10,000,000 or
more, (ii) in which injunctive or similar relief is sought
and which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect, or (iii) in
which the relief sought is an injunction or other stay of
the performance of this Agreement;
(d) (i) any and all enforcement, cleanup, removal or
other governmental or regulatory actions instituted or
threatened against such Borrower or any of its properties
pursuant to any applicable Environmental Laws, (ii) all
other Environmental Claims, and (iii) any environmental or
similar condition on any real property adjoining or in the
vicinity of the property of such Borrower that could
reasonably be anticipated to cause the property of such
Borrower or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or
use of such property under any Environmental Laws, if,
individually or in the aggregate, the events or conditions
described or the amount claimed in clauses (i), (ii) and
(iii) could result in a Material Adverse Effect;
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(e) any of the following ERISA events affecting such
Borrower or any member of its Controlled Group which,
individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect (but in no event
more than 10 days after the later of such event or the date
such Borrower knew or should have known of such event),
together with a copy of any notice with respect to such
event that may be required to be filed with a Governmental
Authority and is then due and any notice delivered by a
Governmental Authority to such Borrower or any member or its
Controlled Group with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject
to Title IV of ERISA or Section 412 of the Code by any
member of the Controlled Group;
(iii) the adoption of any amendment to a Plan that
is subject to Title IV of ERISA or Section 412 of the
Code; or
(iv) the commencement of contributions by any
member of the Controlled Group to any Plan that is
subject to Title IV of ERISA or Section 412 of the
Code;
(f) any Material Adverse Effect subsequent to the date
of the most recent audited financial statements of RPM and
its Subsidiaries delivered to the Lenders pursuant to
Section 6.01(a).
Each notice pursuant to this section shall be accompanied by
a written statement signed by the chief financial officer of RPM
setting forth details of the occurrence referred to therein, and
stating what action RPM proposes to take with respect thereto and
at what time. Each notice under Section 6.03(a) shall describe
with particularity the provisions of this Agreement that have
been breached.
6.04. PRESERVATION OF CORPORATE EXISTENCE RIGHTS, ETC.
(a) Except as permitted in Section 7.02, maintain and
preserve in full force and effect its corporate (or other
form of) existence and good standing under the laws of its
jurisdiction of incorporation.
(b) Maintain and preserve all rights, privileges,
franchises, trademarks, trade names, service marks,
licenses, qualifications and other like rights now enjoyed
and necessary or useful in the operation of its business and
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keep all of its property in good working order and
condition, normal wear and tear excepted.
(c) Maintain and preserve the good will and business
of the customers, suppliers and others having material
business relations with it.
6.05. INSURANCE. Maintain with financially sound and
reputable independent insurers, insurance with respect to its
properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other
Persons; including workers' compensation insurance, public
liability and property and casualty insurance. Upon request of
the Agent or any Lender, such Borrower shall furnish the Agent,
with sufficient copies for each Lender, at reasonable intervals,
a certificate of the chief financial officer of RPM (and, if
requested by the Agent, any insurance broker of such Borrower)
setting forth the nature and extent of all insurance maintained
by such Borrower in accordance with this Section 6.05.
6.06. PAYMENT OF OBLIGATIONS. Pay all taxes, assessments,
governmental charges and other obligations when due, except as
may be contested in good faith or those as to which a bona fide
dispute may exist and for which adequate reserves have been
provided if required by GAAP (or the comparable accounting
standards of such Borrower's country) and the non-payment of
which does not affect the Borrower's title to or right to use any
of its property.
6.07. COMPLIANCE WITH LAWS. Comply in all material
respects with all material regulations and requirements of any
Governmental Authority having jurisdiction over it or its
business, except such as may be contested in good faith or as to
which a bona fide dispute may exist.
6.08. INSPECTION OF PROPERTY AND BOOKS AND RECORDS.
Maintain proper books of record and account in conformity with
GAAP (or the comparable accounting standards of such Borrower's
country) consistently applied and permit representatives and
independent contractors of the Agent or any Lender to visit and
inspect any of its properties, to examine corporate, financial
and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with
its respective officers and independent public accountants at
such reasonable times during normal business hours and as often
as may be reasonably desired.
6.09. ENVIRONMENTAL LAWS. Conduct its operations and keep
and maintain its property in material compliance with all
Environmental Laws.
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6.10. USE OF PROCEEDS. Use the proceeds of the Advances
solely to refinance Indebtedness and other general lawful
corporate purposes.
6.11. FURTHER ASSURANCES. Execute and deliver to the Agent
such further instruments and do such other further acts as the
Agent or the Lenders may reasonably request to carry out more
effectively the purposes of this Agreement and any related
documents.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Advance or other Obligation remains unpaid or
unsatisfied or the Commitment remains available, with respect to
Sections 7.01 through 7.06, each Borrower will not, and, will not
permit its Subsidiaries to, and with respect to Sections 7.07
through 7.10, RPM will not:
7.01. LIENS, ETC. Create or suffer to exist any Lien or
any other type of preferential arrangement, upon or with respect
to any of its properties, whether now owned or hereafter
acquired, or assign any right to receive income, in each case to
secure or provide for the payment of any Indebtedness of any
Person, other than the following ("Permitted Liens"):
(a) Purchase money liens or purchase money
security interests upon or in any property acquired or
held by such Borrower or Subsidiary in the ordinary
course of business to secure the purchase price of such
property or to secure Indebtedness incurred solely for
the purpose of financing the acquisition of such
property;
(b) Any Lien existing on the property of such
Borrower or Subsidiary on the Closing Date and any
extension, renewal or replacement Lien (each a
"Replacement Lien") arising out of the extension,
renewal or replacement of the related obligation
secured by such Lien, so long as any such Replacement
Lien does not extend to property not covered by the
Lien replaced or renewed;
(c) Liens for taxes, fees, assessments or other
governmental charges or statutory obligations which are
not delinquent or remain payable without penalty, or to
the extent that non-payment thereof is permitted by
Section 5.11, provided that no notice of Lien has been
filed or recorded under the Code;
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(d) Liens arising in the ordinary course of
business in connection with obligations that are not
overdue or which are being contested in good faith and
by appropriate proceedings, including, but not limited
to Liens under bid, performance and other surety bonds,
supersedes and appeal bonds, Liens on advance or
progress payments received from customers under
contracts for the sale, lease or license of goods,
software or services and upon the products being sold
or licensed, in each case securing performance of the
underlying contract or the repayment of such advances
in the event final acceptance of performance under such
contracts does not occur; and Liens upon funds
collected temporarily from others pending payment or
remittance on their behalf;
(e) Liens (other than any Lien imposed by ERISA)
required in ordinary course of business in connection
with workers' compensation, unemployment insurance and
other social security legislation;
(f) Easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from
the value of the property subject thereto or interfere with
the ordinary conduct of the businesses of such Borrower or
Subsidiary;
(g) Liens arising solely by virtue of any
statutory or common law provision relating to banker's
liens, rights of set-off or similar rights and remedies
as to deposit accounts or other funds maintained with a
creditor depository institution; PROVIDED THAT (i) such
deposit account is not a dedicated cash collateral
account and is not subject to restrictions against
access by such Borrower or Subsidiary in excess of
those set forth by regulations promulgated by the U.S.
Federal Reserve Board or other central bank or similar
Governmental Authority, and (ii) such deposit account
is not intended by such Borrower or Subsidiary to
provide collateral to the depository institution;
(h) Any Lien on any asset existing at the time
such asset is acquired by such Borrower or Subsidiary
or is merged into or consolidated with such Borrower or
Subsidiary and not created in contemplation of such
event and any Replacement Lien (as defined in clause
(b) above) arising out of the extension, renewal or
replacement of the related obligation secured by such
Lien, so long as any such Replacement Lien does not
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extend to property not covered by the Lien replaced or
renewed;
PROVIDED that the aggregate principal amount of the Indebtedness
secured by the Liens referred to in clauses (a), (b) and (h)
above shall not at any time exceed five percent of RPM's
Consolidated Total Assets.
7.02. MERGERS, CONSOLIDATIONS AND DISPOSITIONS OF ASSETS.
Sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of related transactions) any of its
or its Subsidiaries' outstanding capital stock, or (other than in
the ordinary course of business) any of its property or assets
(including accounts and notes receivable, with or without
recourse) to any Person, or consolidate with or merge into any
other Person, PROVIDED, however, this Section 7.02 shall not
apply to or restrict:
(a) the merger or consolidation of such Borrower
or Subsidiary into RPM, or with or into any other
Borrower or Subsidiary of a Borrower or RPM;
(b) the transfer by such Borrower or Subsidiary
of any assets (upon voluntary liquidation or otherwise)
to RPM, a Borrower or a Wholly-Owned Subsidiary of RPM
or a Borrower;
(c) transfers of property not used or useful in
the business of the Borrowers and their Subsidiaries;
(d) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase
price of similar replacement equipment, or the proceeds
of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(e) transfers of assets not otherwise permitted
hereunder (whether by merger, consolidation or
otherwise) occurring after the Closing Date which are
made for fair market value; PROVIDED, that (i) at the
time of any transfer, no Event of Default exists or
would result from such transfer and (ii) the aggregate
net book value of all assets so transferred by the
Borrowers and their Subsidiaries shall not exceed
$50,000,000 (or its equivalent in any Alternative
Currency) in any one fiscal year.
7.03. USE OF PROCEEDS. Use any portion of any Advance,
directly or indirectly, (i) to purchase or carry Margin Stock,
(ii) to repay or otherwise refinance Indebtedness of the
Borrowers, their Subsidiaries or others incurred to purchase or
carry Margin Stock, (iii) to extend credit for the purpose of
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purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14
of the Exchange Act.
7.04. COMPLIANCE WITH ERISA.
(a) Terminate any Plan subject to Title IV of
ERISA so as to result in any material liability to any
Borrower or any ERISA Affiliate;
(b) Permit to exist any ERISA Event which is
reasonably likely to result in a material liability to
any members the Controlled Group;
(c) Make a complete or partial withdrawal (within
the meaning of ERISA Section 4201) from any
Multiemployer Plan so as to result in any material
Withdrawal Liabilities to any Borrower or any ERISA
Affiliate;
(d) Enter into any new Plan or amend any existing
Plan if doing so is reasonably likely to result in any
material increase in liability to any member of the
Controlled Group and is neither required by law nor
necessary to satisfy qualification requirements in the
case of a Qualified Plan; or
(e) Permit the present value of all
nonforfeitable accrued benefits under any Qualified
Plan (other than a Multiemployer Plan) to exceed, to a
materially greater extent than that disclosed in a
report prepared by an actuary with respect to the Plans
previously provided to the Lenders, the fair market
value of Plan assets allocable to such benefits, if the
liability accruing to any Borrower as a result of the
excess would result in a Material Adverse Effect,
PROVIDED, that for purposes of this clause (e)
determination of such excess at any time will be made
on a Plan termination basis applying the actuarial
factors that would be used by the PBGC either as of the
Closing Date or as of the date in question, whichever
results in a smaller excess, and will otherwise be
based on the information set forth in the most recently
completed actuarial valuation with respect to such
Plan.
7.05. ACCOUNTING CHANGES. Make any material change in
accounting treatment or reporting practices, except (a) as
required or permitted by GAAP (or the comparable accounting
standards of such Borrower or Subsidiary's country) and (b) as
disclosed in the notes accompanying the financial statements
delivered pursuant to Sections 6.01(a) and (b) hereof.
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7.06. CONTRACTS OF SUBSIDIARIES. Enter into any agreement
restricting the ability of any Subsidiary to pay dividends to any
Borrower or any Subsidiary of any Borrower.
7.07. MINIMUM TANGIBLE NET WORTH. Permit its Consolidated
Tangible Net Worth to be less than $240,000,000.
7.08. LEVERAGE RATIO. Permit the ratio of (a) its
Consolidated Total Liabilities MINUS the outstanding principal
balance of the RPM Subordinated Debt to (b) its Consolidated
Tangible Net Worth to exceed 1.5 to 1.
7.09. RATIO OF LONG-TERM DEBT TO CAPITALIZATION. Permit
its Consolidated Long-Term Debt to exceed 60% of its Consolidated
Capitalization.
7.10. RATIO OF EBIT TO INTEREST EXPENSE. Permit its ratio
of (a) EBIT to (b) Consolidated Interest Expense to be less than
3.00 to 1.00.
ARTICLE VIII
EVENTS OF DEFAULT
8.01. EVENTS OF DEFAULT. Any of the following shall
constitute an "Event of Default":
(a) A Borrower fails to pay any principal of, or
interest on, any Advance when the same becomes due and
payable; or
(b) Any representation or warranty made by a Borrower
herein or in any document delivered to the Lenders in
connection with this Agreement proves to have been incorrect
in any material respect when made; or
(c) A Borrower fails to perform or observe any other
term, covenant or agreement contained in this Agreement on
its part to be performed or observed and the failure to
perform or observe such other term, covenant or agreement
remains unremedied for 30 days; or
(d) A Borrower or any of its Subsidiaries fails to pay
any principal of or premium or interest on any Indebtedness
which is outstanding in a principal amount of at least
$10,000,000 (or its equivalent in any Alternative Currency)
in the aggregate (but excluding Indebtedness arising under
this Agreement) of such Borrower or such subsidiary (as the
case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure continues after the
applicable grace period, if any, specified in the agreement
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or instrument relating to such Indebtedness; or any other
event occurs or condition exists under any agreement or
instrument relating to any such Indebtedness and continues
after the applicable grace period, if any, specified in such
agreement or instrument expires, if the effect of such event
or condition is to accelerate, or to permit the acceleration
of, the maturity of such Indebtedness; or any such
Indebtedness is declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(e) Any judgment or order for the payment of money in
excess of $10,000,000 (or its equivalent in any Alternative
Currency) is rendered against a Borrower or any of its
Subsidiaries and either (i) enforcement proceedings are
commenced by any creditor upon such judgment or order or
(ii) there exists any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, is not in effect;
or
(f) Any of the following events occurs which,
individually or in the aggregate, could reasonably be
expected to result in liability which has a Material Adverse
Effect: (i) a member of the Controlled Group fails to pay
when due, after the expiration of any applicable grace
period, any installment payment with respect to its
withdrawal liability under a Multiemployer Plan unless the
obligation to make such payment or the amount thereof is
disputed in good faith by the Controlled Group member and
such member is pursuing in a timely manner its legal right
to object thereto; (ii) a Borrower or an ERISA Affiliate
fails to satisfy its contribution requirements under Section
412(c)(11) of the Code, whether or not it has sought a
waiver under Section 412(d) of the Code; (iii) an ERISA
Event involving the withdrawal by a Borrower or an ERISA
Affiliate from a Plan with respect to which it is a
"substantial employer" (as defined in Section 4001(a)(2) or
Section 4062(e) of ERISA), imposing liability on the
withdrawing employer for its proportionate share of that
Plan's Unfunded Pension Liabilities; (iv) an ERISA Event
involving the complete or partial withdrawal by a Borrower
or an ERISA Affiliate from a Multiemployer Plan, imposing
liability on the withdrawing employer for Withdrawal
Liabilities and the amount of the required annual Withdrawal
Liabilities payment materially exceeds the average annual
amount of contributions to the Multiemployer Plan by the
withdrawing employer for the preceding calendar year or the
average of such contributions for the five preceding
calendar years, whichever is greater; (v) an ERISA Event not
described in clause (iii) or (iv) with respect to a Plan or
Plans, resulting in the imposition of Unfunded Pension
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Liabilities on a Borrower or a Controlled Group member;
(vi) a Plan that is intended to be qualified under Section
401(a) of the Code has been finally determined to have lost
its qualification and all opportunity for appeal or
correction has lapsed; (vii) the commencement or increase of
contributions to, or the adoption of or the amendment of, a
Qualified Plan or a Plan providing for welfare benefits to
retirees of a Borrower or its ERISA Affiliates by a member
of the Controlled Group which results in a net increase in
current unfunded liabilities to the Controlled Group (as
disclosed in the actuarial reports or financial statements
with respect to the Plans previously provided to the
Lenders); (viii) any member of the Controlled Group becomes
liable for a tax under Code Section 4975 in connection with
a non-exempt prohibited transaction; (ix) a violation of
section 404, 405 or 406 of ERISA or the exclusive benefit
rule under section 401(a) of the Code; or (x) any member of
the Controlled Group is assessed a tax under section 4980B
of the Code unless the obligation to pay such tax or the
amount thereof is disputed in good faith by the Controlled
Group member and such member is pursuing in a timely manner
its legal right to object thereto; or
(g) RPM fails in any material respect to perform or
observe any term, covenant or agreement under its guaranty
in Article III; or such guaranty is for any reason partially
(including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full
force and effect, or RPM or any other Person contests in any
manner the validity or enforceability thereof or denies that
it has any further liability or obligation thereunder; or
(h) RPM (i) ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability
to pay, its debts as they become due, subject to applicable
grace periods, if any, whether at stated maturity or
otherwise, (ii) voluntarily ceases to conduct its business
in the ordinary course, (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action
to effectuate or authorize any of the foregoing; or
(i) One or more of the following occurs: (x) an
involuntary Insolvency Proceeding is commenced or filed
against a Borrower or any Borrower's Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of a
Borrower or any Borrower's Subsidiaries' properties, and any
such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; (y) a
Borrower or any Borrower's Subsidiary admits the material
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allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or
(z) a Borrower or any Borrower's Subsidiary acquiesces in
the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a
substantial portion of its property or business; or
(j) RPM, concurrently with the receipt by any Borrower
of the initial Advance hereunder, fails to satisfy in full
all its obligations to CLCB and CLB pursuant to that certain
$53,000,000 multi-currency revolver dated May 31, 1991 among
RPM, First National Bank of Chicago as agent and certain
other banks as direct participants, including CLCB and CLB.
8.02. REMEDIES. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of, all the
Lenders,
(a) declare the Commitment of the Lenders to make
Advances to be terminated, whereupon such Commitment shall
forthwith be terminated;
(b) declare the unpaid principal amount of all
outstanding Advances, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or
under any other related document to be immediately due and
payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the
Borrowers; and
(c) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under
this Agreement or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event
specified in paragraph (h) or (i) of Section 8.01 above (in the
case of clause (x) of paragraph (i), upon the expiration of the
60-day period mentioned therein), the obligation of each Lender
to make Advances shall automatically terminate without notice to
the Borrowers and the unpaid principal amount of all outstanding
Advances and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the
Agent or any Lender and without notice to the Borrowers; and
PROVIDED FURTHER, that in any case, the Lenders may, in their
sole and absolute discretion, waive any Event of Default.
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ARTICLE IX
THE AGENT
9.01. AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as
are delegated to the Agent by the terms hereof, together with
such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Indebtedness
resulting from the Advances), the Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of all
the Lenders; PROVIDED, HOWEVER, that the Agent shall not be
required to take any action which exposes the Agent to personal
liability or which is contrary, in the Agent's opinion, to this
Agreement or applicable law. The Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
9.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent: (a) may consult with
legal counsel (including counsel for any Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (b) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (c) shall not
have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this
Agreement on the part of any Borrower or to inspect the property
(including the books and records) of the Borrowers; (d) shall not
be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; and (e) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
9.03. CLCB AND AFFILIATES. CLCB and its affiliates may
accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with,
the Borrowers, any of their Subsidiaries and any Person who may
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do business with or own securities of any Borrower or any such
Subsidiary, all as if CLCB was not the Agent and without any duty
to account therefor to the Lenders.
9.04. INDEMNIFICATION. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective aggregate principal amount of
Advances then owing to each of them (or if no such Advances are
at the time outstanding, ratably according to their respective
Allocation Percentages), from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Agent
under this Agreement, PROVIDED that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share (pursuant to its Allocation Percentage) of any
out-of-pocket expenses (including counsel and paralegal fees)
incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by the Borrowers.
ARTICLE X
MISCELLANEOUS
10.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the
same is in writing and signed by all the Lenders, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
10.02. NOTICES, ETC.
(a) All notices and other communications provided for
hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed,
telecopied, telegraphed, telexed, cabled or delivered, if to
a Borrower, at the address listed beneath its signature on
the signature pages hereof; if to any Lender, at the address
for notices specified beneath its name on the signature
pages hereof; and if to the Agent, at its address for
notices listed beneath its signature on the signature pages
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hereof. Any party hereto may in a written notice to the
other parties change its address or other information
relating to payment. All such notices and communications
shall, when mailed, telecopied, telegraphed, telexed or
cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by
telex answerback or delivered to the cable company,
respectively, except that notices and communications to the
Agent pursuant to Article II or IX shall not be effective
until received by the Agent.
(b) The Borrowers acknowledge and agree that any
agreement of the Agent and the Lenders in Article II herein
to receive certain notices by telephone and facsimile is
solely for the convenience and at the request of the
Borrowers. The Agent and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a
Person authorized by RPM (pursuant to the certificate
described in Section 4.01(e) hereof or any written revision
thereto received by the Agent from RPM) to give such notice
and the Agent and the Lenders shall not have any liability
to the Borrowers or any other Person on account of any
action taken or not taken by the Agent or the Lenders in
reliance upon such telephonic or facsimile notice. The
obligation of the Borrowers to repay the Advances shall not
be affected in any way or to any extent by any failure by
the Agent and the Lenders to receive written confirmation of
any telephonic or facsimile notice or the receipt by the
Agent and the Lenders of a confirmation which is at variance
with the terms understood by the Agent and the Lenders to be
contained in the telephonic or facsimile notice.
10.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
10.04. EXPENSES. The Borrowers shall pay or reimburse each
Lender and the Agent within thirty (30) Business Days after
demand for all costs and expenses incurred by them in connection
with the enforcement, attempted enforcement, or preservation of
any rights or remedies (including in connection with any
"workout" or restructuring regarding the Advances, and including
in any Insolvency Proceeding or appellate proceeding) under this
Agreement or with any investigation, litigation or proceeding
(including any Insolvency Proceeding, Environmental Claim
proceedings or appellate proceeding) related to this Agreement or
the Advances or the use of the proceeds thereof, including all
fees and disbursements of any law firm or other external counsel,
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the allocated cost of internal legal services and all
disbursements of internal counsel incurred by the Agent and any
Lender.
10.05. RIGHT OF SET-OFF. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by
Section 8.02 to authorize the Agent to declare the Advances due
and payable pursuant to the provisions of Section 8.02, each
Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the
Borrowers against any and all of the obligations of the Borrowers
now or hereafter existing under this Agreement. Each Lender
agrees promptly to notify the Borrowers after any such set-off
and application made by such Lender, PROVIDED that the failure to
give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this section
are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
10.06. JUDGMENT CURRENCY CONVERSIONS.
(a) If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder in any
currency (the "Original Currency"), into another currency
(the "Other Currency"), the parties hereto agree, to the
fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance
with normal banking procedures Credit Lyonnais Belgium could
purchase the Original Currency with the Other Currency in
Brussels, Belgium on the second Business Day preceding that
on which final judgment is given.
(b) The obligation of any Borrower in respect of any
sum due in the Original Currency from it to any Lender or
the Agent hereunder held by such Lender shall,
notwithstanding any judgment in any Other Currency, be
discharged only to the extent that on the Business Day
following receipt by such Lender or the Agent (as the case
may be) of any sum adjudged to be so due in such Other
Currency, such Lender or the Agent (as the case may be) may
in accordance with normal banking procedures purchase
Dollars with such Other Currency; if the amount of the
Original Currency so purchased is less than the sum
originally due to such Lender or the Agent (as the case may
be) in the Original Currency, the Borrowers agree, as a
separate obligation and notwithstanding any such judgment,
to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the Original
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52
Currency so purchased exceeds the sum originally due to any
Lender or the Agent (as the case may be) in the Original
Currency, such Lender or the Agent (as the case may be)
agrees to remit such excess to the Borrower or Borrowers
making the payment.
10.07. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Borrowers and
the Agent and when the Agent has been notified by each Lender
named on the signature pages hereof that such Lender has executed
it and thereafter shall be binding upon and inure to the benefit
of the Borrowers, the Agent and each Lender and their respective
successors and assigns, except that no Borrower shall have the
right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
10.08. PARTICIPATIONS.
(a) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its
rights and obligations under this Agreement (including,
without limitation, all or a portion of the Advances owing
to it); PROVIDED, HOWEVER, that (i) such Lender's
obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such
obligations, and (iii) the Borrowers, the Agent and the
other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement. The Borrowers agree that
any participant may exercise rights of set-off against
deposits of the Borrowers as if it were a Lender hereunder.
(b) Any Lender may, in connection with any
participation or proposed participation pursuant to this
Section 10.10, disclose to the participant or proposed
participant, any information relating to the Borrowers
furnished to such Lender by or on behalf of any Borrower;
PROVIDED that, prior to any such disclosure, the participant
or proposed participant shall agree to preserve the
confidentiality of any confidential information relating to
the Borrowers received by it from such Lender.
10.09. EXECUTION IN COUNTERPARTS. This Agreement 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 taken together
shall constitute one and the same agreement.
10.10. SEVERABILITY. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
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53
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.11. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT AND ANY OTHER RELATED DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE
UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWERS, THE AGENT AND THE LENDERS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE BORROWERS, THE
AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO. THE BORROWERS, THE AGENT AND THE
LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY ILLINOIS LAW.
10.12. WAIVER OF JURY TRIAL. THE BORROWERS, THE LENDERS
AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT, ANY OTHER RELATED DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
(The remainder of this page is intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
RPM, INC.
By: /S/ Frank C. Sullivan
------------------------------
Name: Frank C. Sullivan
Title: Vice President
ADDRESS FOR NOTICES:
RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
WITH A COPY TO:
RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
(signatures continued on next page)
55
RPOW (FRANCE) S.A.
By: /S/ Frank C. Sullivan
------------------------------
Name: Frank C. Sullivan
Title: Director General
--------------------------
ADDRESS FOR NOTICES:
RPOW (France) S.A.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
WITH A COPY TO:
RPOW (France) S.A.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
(signatures continued on next page)
56
RPM EUROPE B.V.
By:/S/ Frank C. Sullivan
-----------------------------
Name: Frank C. Sullivan
Title: Managing Director
-------------------------
ADDRESS FOR NOTICES:
RPM Europe B.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
WITH A COPY TO:
RPM Europe B.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
(signatures continued on next page)
57
RADIANT COLOR N.V.
By: /S/ Frank C. Sullivan
-----------------------------
Name: Frank C. Sullivan
Title: Director
--------------------------
ADDRESS FOR NOTICES:
Radiant Color N.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Mr. Frank C. Sullivan
Vice President and
Chief Financial
Officer
Facsimile: (216) 225-8743
Telephone: (216) 273-8808
WITH A COPY TO:
Radiant Color N.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Paul A. Granzier, Esq.
Vice President, General
Counsel and Secretary
Facsimile: (216) 225-8743
Telephone: (216) 273-8838
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58
CREDIT LYONNAIS CHICAGO BRANCH, as
Agent
By: Mary Ann Klemm
Name: Mary Ann Klemm
Title: Vice President
ADDRESS FOR NOTICES:
227 West Monroe Street, Suite 3800
Chicago, Illinois 60606
Attention: Mr. Brian Jackson
Facsimile: (312) 641-0527
Telephone: (312) 220-7309
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59
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Lender
By:/S/ Mary Ann Klemm
--------------------------------
Name: Mary Ann Klemm
Title: Authorized Signatory
LENDING OFFICE
ADDRESS FOR NOTICES:
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Chicago Branch
227 West Monroe Street, Suite 3800
Chicago, Illinois 60606
Attention: Mr. Brian Jackson
Facsimile: (312) 641-0527
Telephone: (312) 220-7309
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60
CREDIT LYONNAIS BELGIUM, as a Lender
By: /S/ J. Borremans /S/ J. M. Winand
------------------ -----------------------
Name: J. Borremans J. M. Winand
--------------- -----------------------
Title: Ex-Director Invest. Banking Officer
--------------- -----------------------
LENDING OFFICE
ADDRESS FOR NOTICES:
Credit Lyonnais Belgium S.A.
17 Marnix Avenue
1050 Brussels, Belgium
Attention: Mr. Thierry Mathieu
Facsimile: (32) 2 5134023
Telephone: (32) 2 5160953
WITH A COPY TO:
Credit Lyonnais Belgium S.A.
17 Marnix Avenue
1050 Brussels, Belgium
Attention: Mr. Philippe Mallien
Facsimile: (32) 2 5160940
Telephone: (32) 2 5160617
(last signature page)