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Exhibit 4.1
[LOGO] CHASE
Fixed Rate Promissory Note
(Multiple Loans)
New York, New York ___________, 19____
For value received, the undersigned (the "Borrower") unconditionally
promises to pay to the order of THE CHASE MANHATTAN BANK (the "Bank"), at its
principal office located at 270 Park Avenue, New York, New York 10017, the
principal amount of each loan made by the Bank to the Borrower and outstanding
under this Note, on the maturity date(s) as evidenced in the Bank's records as
provided in the fifth paragraph hereof.
The Borrower promises to pay interest on the unpaid balance of the
principal amount of each such loan for each day outstanding at a fixed rate per
annum equal to the rate as evidenced in the Bank's records as provided in the
fifth paragraph hereof; provided that principal and (to the extent permitted by
law) interest not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest for each day overdue at a variable rate per annum
equal to: (a) the higher of: (i) the Federal Funds Rate plus 1/2 of 1% or (ii)
the Prime Rate; plus (b) 2%. "Federal Funds Rate" means, for any day, the rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions as published by the Federal Reserve Bank of New York for such day
(or for any day that is not a banking day in New York City, for the immediately
preceding banking day). "Prime Rate" means, for any day, that rate of interest
from time to time announced by the Bank at its principal office as its prime
commercial lending rate, as in effect for such day in accordance with
announcements by the Bank of changes in such rate. Interest shall be calculated
on the basis of a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day). Interest on each
loan shall be due and payable at the maturity thereof (and quarterly, if
requested by the Bank). In no case shall the interest on this Note exceed the
maximum amount which the Bank may charge or collect under applicable law.
Each loan hereunder may be prepaid in whole but not in part, provided
that accrued and unpaid interest is paid on the date of such prepayment,
together with any compensation payable in accordance with the following. If
there is any payment (whether by voluntary prepayment, acceleration or
otherwise) of principal of a loan under this Note on a date other than the
scheduled maturity date thereof set forth in the first paragraph hereof, then
the Borrower will pay the Bank on demand such amount as will be sufficient in
the reasonable opinion of the Bank to compensate it for any loss, cost or
expense which the Bank determines is attributable thereto. Without limiting the
foregoing, such compensation shall include an amount equal to the excess, if
any, of: (a) the aggregate amount of interest which otherwise would have accrued
on the principal amount so paid for the period from and including the date of
payment to but excluding such maturity date at the rate of interest provided
herein over (b) the amount of interest the Bank would pay (as determined by the
Bank in good faith, such determination to be conclusive) on a deposit placed
with the Bank on the date of such payment in an amount comparable to such
principal amount and with a maturity comparable to such period.
All payments under this Note shall be made in lawful money of the
United States of America and in immediately available funds at the Bank's
principal office specified above. If any loan evidenced by this Note becomes due
and payable on a day which is not a banking day in New York City, the maturity
of such loan shall be extended to the next succeeding banking day, and interest
shall be payable for such extension on such loan at the rate of interest
specified in this Note. The Bank may (but shall not be obligated to) debit the
amount of any payment which is not made when due to any deposit account of the
Borrower with the Bank.
The date, amount, rate of interest and maturity date of each loan under
this Note and each payment of principal, loan(s) to which such principal is
applied (which shall be at the discretion of the Bank) and the
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outstanding principal balance of loans shall be recorded by the Bank on its
books and prior to any transfer and delivery of this Note, endorsed by the Bank
on the schedule attached or any continuation of the schedule. Any such
endorsement shall be conclusive in the absence of manifest error.
If any of the following events of default shall occur: (a) the Borrower
fails to pay any liability to the Bank when due and payable; (b) the Borrower or
any third party supporting or liable with respect to this Note (a "Third Party")
shall breach any representation, warranty or covenant in this Note or other
document delivered in connection with this Note ( this Note and any such
document being a "Facility Document") or in any certificate, opinion or
financial or other statement delivered in connection with a Facility Document;
(c) the Borrower or any Third Party shall fail to pay any other indebtedness
when due and payable or if there shall be any default by the Borrower or such
Third Party thereunder; (d) the Borrower or any Third Party shall become
insolvent (however evidenced) or shall seek any relief under any bankruptcy or
similar law of any jurisdiction (or any person shall seek such relief against
the Borrower or such Third Party); (e) any Facility Document shall at any time
cease to be in full force and effect or its validity or enforceability shall be
disputed or contested; or (f) any lien or security interest securing this Note
shall cease to create a valid and perfected first priority lien or security
interest in the property purported to be subject thereto; THEN, if the Bank
shall elect by notice to the Borrower, the unpaid principal amount of this Note,
together with interest and any other amounts due hereunder shall become
forthwith due and payable; provided that in the case of an event of default
under (d) above, such amounts shall automatically become due and payable without
any notice or other action by the Bank.
The Borrower waives presentment, notice of dishonor, protest and any
other formality with respect to this Note.
The Borrower shall reimburse the Bank on demand for all costs, expenses
and charges (including, without limitation, fees and charges of external legal
counsel for the Bank and costs allocated by its internal legal department) in
connection with the preparation, performance or enforcement of this Note.
This Note shall be binding on the Borrower and its successors and
assigns and shall inure to the benefit of the Bank and its successors and
assigns; provided that the Borrower may not delegate any obligations hereunder
without the prior written consent of the Bank. Without limiting any provision of
this Note, the obligations under this Note shall continue in full force and
effect and shall be binding on: (a) the estate of the Borrower if the Borrower
is an individual; and (b) any successor partnership and or previous partners and
their respective estates if the Borrower is a partnership, regardless of any
change in the partnership as a result of death, retirement or otherwise.
THIS NOTE SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. THE
BORROWER CONSENTS TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF THE STATE OR
FEDERAL COURTS LOCATED IN THE CITY OF NEW YORK. SERVICE OF PROCESS BY THE BANK
IN CONNECTION WITH ANY SUCH DISPUTE SHALL BE BINDING ON THE BORROWER IF SENT TO
THE BORROWER BY REGISTERED MAIL AT THE ADDRESS SPECIFIED BELOW. THE BORROWER
WAIVES ANY RIGHT THE BORROWER MAY HAVE TO JURY TRIAL.
Address: P.O. Box 777 RPM, Inc.
Medina, OH 44258 -------------------------
(Name of Borrower)
By /s/ David P. Reif
Name: David P. Reif
Title: Vice President
Corporate Finance
By _______________________
Name:
Title:
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Amount of
Date Payment and Principal
and Amount Loan Number Balance
Loan of Loan Maturity to Which Remaining Notation
Number and Rate Date Applied Unpaid Made by
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