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Exhibit 10.2
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MULTICURRENCY CREDIT AGREEMENT
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Dated as of 26 August 1999
among
Carboline Europe Ltd.
Martin Mathys N.V.
Radiant Color N.V.
RPM Belgium N.V.
RPM Europe B.V.
RPM Holdings UK Ltd.
RPM/Lux Consult S.A.
RPOW (France) S.A.
RPOW UK Ltd.
Stonhard Deutschland GmbH
Tremco Ltd.
and
RPM, Inc.
and
Deutsche Bank S.A.
Deutsche Bank AG London
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TABLE OF CONTENTS
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PRELIMINARY STATEMENT 4
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Article I - DEFINITIONS AND ACCOUNTING TERMS 4
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1.1. CERTAIN DEFINED TERMS 4
1.2. ACCOUNTING TERMS 12
1.3. CURRENCY EQUIVALENTS GENERALLY 13
1.4 AUTHORIZATION OF BORROWER REPRESENTATIVES 13
Article II - THE FACILITY 13
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2.1. THE DRAWINGS 13
2.2. FACILITY FEE 14
2.3. VOLUNTARY REDUCTION OF THE COMMITMENT 14
2.4. INCREASED COSTS 14
2.5. TAXES 15
2.6. ILLEGALITY 16
2.7. SHARING OF PAYMENTS 17
2.8. EVIDENCE OF INDEBTEDNESS 18
Article III - MAKING AN ADVANCE 18
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3.1. DRAWDOWN 18
3.2. PREPAYMENTS 19
3.3. FUNDING LOSSES 19
3.4. REPAYMENT 20
3.5. INTEREST 20
Article IV - ISSUING A GUARANTEE 20
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4.1. ISSUE 21
4.2. FEE 21
Article V - ISSUING A LETTER OF CREDIT 21
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5.1. ISSUE 22
5.2. FEE AND/OR INTEREST 22
Article VI - GUARANTY 22
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6.1. GUARANTY 22
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6.2. GUARANTY ABSOLUTE 23
6.3. WAIVER 23
6.4. SUBROGATION 24
Article VII - CONDITIONS OF LENDING 24
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7.1. CONDITION PRECEDENT TO DRAWINGS 24
7.2. CONDITIONS PRECEDENT TO EACH DRAWING 25
Article VIII - REPRESENTATIONS AND WARRANTIES 25
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8.1. DUE ORGANIZATION 25
8.2. DUE AUTHORIZATION 26
8.3. NO GOVERNMENTAL APPROVAL 26
8.4. ENFORCEABLE AGREEMENT 26
8.5. FINANCIAL INFORMATION 26
8.6. LITIGATION 26
8.7. MARGIN STOCK 27
8.8. NO DEFAULT 27
8.9. ERISA COMPLIANCE 27
8.10. TITLE TO PROPERTIES 27
8.11. TAXES 28
8.12. ENVIRONMENTAL MATTERS 28
8.13. USE OF PROCEEDS 28
8.14. REGULATED ENTITIES 29
8.15. SUBSIDIARY BORROWERS 29
8.16. INSURANCE 29
8.17. COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. 29
8.18. YEAR 2000 29
8.19. REIMBURSEMENT OF THE DECEMBER14, 1993 CREDIT AGREEMENT 30
Article IX - AFFIRMATIVE COVENANTS 30
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9.1. FINANCIAL STATEMENTS 30
9.2. CERTIFICATES; OTHER INFORMATION 30
9.3. NOTICES 31
9.4. PRESERVATION OF CORPORATE EXISTENCE RIGHTS 32
9.5. INSURANCE 33
9.6. PAYMENT OF OBLIGATIONS 33
9.7. COMPLIANCE WITH LAWS 33
9.8. INSPECTION OF PROPERTY AND BOOKS AND RECORDS 34
9.9. USE OF DRAWINGS 34
9.10. FURTHER ASSURANCES 34
Article X - NEGATIVE COVENANTS 34
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10.1. LIENS, ETC. 34
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10.2. MERGERS, CONSOLIDATIONS AND DISPOSITIONS OF ASSETS 36
10.3. USE OF PROCEEDS 36
10.4. ACCOUNTING CHANGES 36
10.5. LEVERAGE RATIO 36
10.6. RATIO OF EBIT TO INTEREST EXPENSE 37
Article XI - EVENTS OF DEFAULT 37
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11.1. EVENTS OF DEFAULT 37
11.2. REMEDIES 39
Article XII - THE AGENT 39
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12.1. AUTHORIZATION AND ACTION 39
12.2. AGENT'S RELIANCE, ETC 40
12.3. DBSA AND AFFILIATES 40
12.4. INDEMNIFICATION 40
Article XIII - MISCELLANEOUS 41
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13.1. AMENDMENTS 41
13.2. NOTICES 41
13.3. NO WAIVER; REMEDIES 41
13.4. EXPENSES 41
13.5. RIGHT OF SET-OFF 42
13.6. JUDGMENT CURRENCY CONVERSIONS 42
13.7. BINDING EFFECT 43
13.8. PARTICIPATIONS 43
13.9. EXECUTION IN COUNTERPARTS 44
13.10. SEVERABILITY 44
13.11. GOVERNING LAW AND JURISDICTION 44
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MULTICURRENCY CREDIT AGREEMENT
This Multicurrency Credit Agreement (the "AGREEMENT") is entered into as of
August 26, 1999 among:
(a) RPM, Inc., a corporation organized under the laws of the State of Ohio
("RPM"), as "GUARANTOR"; and
(b) - Carboline Europe Ltd., a corporation organized under the laws of
United Kingdom,
- Martin Mathys N.V., a corporation organized under the laws of Belgium,
- Radiant Color N.V., a corporation organized under the laws of Belgium,
- RPM Belgium N.V., a corporation organized under the laws of Belgium,
- RPM Europe B.V., a corporation organized under the laws of the
Netherlands,
- RPM Holdings UK Ltd., a corporation organized under the laws of United
Kingdom,
- RPM/Lux Consult S.A., a corporation organized under the laws of
Luxembourg,
- RPOW (France) S.A., a corporation organized under the laws of France,
- RPOW UK Ltd., a corporation organized under the laws of United Kingdom,
- Stonhard Deutschland GmbH, a corporation organized under the laws of
Germany, and
- Tremco Ltd., a corporation organized under the laws of United Kingdom,
each referred to hereinafter individually as a "BORROWER" and, collectively,
as "BORROWERS"; and
(c) Deutsche Bank S.A. ("DBSA") and Deutsche Bank AG London ("DBL"), as
"Lenders"; and
(d) Deutsche Bank S.A. ("DBSA") as agent (the "AGENT") for the Lenders
hereunder.
PRELIMINARY STATEMENT
RPM has requested that the Lenders make drawings available to the Borrowers
pursuant to the terms of this Agreement, which include, among other terms, a
guaranty by RPM of any drawings made to such Borrowers. 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
1.1. Certain Defined Terms
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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 an advance made, or to be made, under Section III.
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"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.
"AGREEMENT" means this Multicurrency Credit Agreement.
"ALLOCATION PERCENTAGE" means, with respect to DBSA, 80%, and, with
respect to DBL, 20%.
"ALTERNATIVE CURRENCY" means the British sterling (or GBP) or the United
States dollar (USD) as the case may be.
"BORROWER REPRESENTATIVE" means any of the following: Keith R. Smiley,
Frank C. Sullivan and David P. Reif.
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open for dealing in inter-bank deposits, with respect to a
transaction involving Euro and (a) with respect to a transaction in GBP, is also
a day on which dealings are carried on in the London interbank market and (b)
with respect to a transaction in USD, is also a day on which dealings are
carried in the interbank markets of London and New York City.
"CAPITAL LEASE OBLIGATIONS" means, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"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" means the amount of 25,000,000 (twenty five million) Euro or
its equivalent in an Alternative Currency, to the extent not cancelled, reduced
or transferred under this Agreement.
"COMMITMENT PERIOD" means the period from and including the date of this
Agreement until but excluding the Final Maturity Date.
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"COMPLIANCE CERTIFICATE" means a certificate delivered to the Agent by
RPM pursuant to Section 9.2(a), substantially in the form of Schedule 3.
"CONSOLIDATED EBIT" means, for any period, determined on a consolidated
basis for the Guarantor and its Subsidiaries, net operating income of the
Guarantor and its Subsidiaries (calculated before provision for income taxes,
interest expense, extraordinary items and income attributable to equity in
affiliates) for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum
(determined without duplication) of the aggregate amount of interest accruing
during such period on Indebtedness of the Company and its Subsidiaries (on a
consolidated basis), including the interest portion of payments under Capital
Lease Obligations and any capitalized interest, and excluding amortization of
debt discount and expense.
"CONSOLIDATED NET INCOME (LOSS)" means, for any period, with respect to
any Person, all amounts which would, in accordance with GAAP, be included in net
income (loss) on the consolidated income statement of such Person and its
Subsidiaries for such period.
"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.
"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 of the Code.
"DBL" means Deutsche Bank AG London.
"DBSA" means Deutsche Bank S.A..
"DEFAULT" means an event that with notice or lapse of time or both would
become an Event of Default.
"DRAWING" means a drawing on the Facility under form of an Advance, a
Guarantee and/or a Letter of Credit made by any Lender to, or on behalf of, a
Borrower.
"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,
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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.
"ENVIRONMENTAL LIABILITIES" shall mean all liabilities in connection
with or relating to the business, assets, presently or previously owned or
leased property, activities (including, without limitation, off-site disposal)
or operations of the Guarantor and each Subsidiary, whether vested or unvested,
contingent or fixed, actual or potential, known or unknown, which arise under or
relate to matters covered by Environmental Laws.
"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 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
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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.
"EUR and "Euro" each means the lawful currency of the member states of
the European Union that adopt the single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on European Union.
"EVENT OF DEFAULT" has the meaning specified in Section 11.1.
"FINAL MATURITY DATE" means the 364th calendar day after the date on
which the Bank serves notice of cancellation of the Agreement on the Borrowers
or, if such date is not a Business Day, the immediately preceding Business Day.
"FACILITY" means the multicurrency credit facility, the terms of which
are set out in this Agreement.
"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 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.
"GUARANTEE" means a guarantee made, or to be made, upon Section IV.
"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.
"IBOR" means the rate per annum determined by the Agent as the rate for
deposits for a period comparable to the relevant Interest Period which appears,
for an Advance in EURO, on the Telerate page 248 at 11:00 a.m., Brussels time,
or, in case of an Advance in an Alternative Currency, on the Telerate page 3750
at 11:00 a.m. London time, two Business Days before the first day of such
Interest Period. If no such offered rates appear on the relevant Telerate page
for the relevant currency and period, IBOR will be determined as the average
rate of interest per annum (a) at which deposits in EURO are offered by the
principal office of DBSA to prime banks in the Brussels interbank market at
11:00 a.m. (Brussels time) or (b) at which deposits in the Alternative Currency
are offered by the principal office of Deutsche Bank in London, United Kingdom
to prime banks in the London interbank market at 11:00 a.m. (London time) two
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Business Days before the first day of such Interest Period in an amount
substantially equal to such Advance and for a period comparable to such Interest
Period. The Agent may nominate an alternative source of screen rates if these
pages are replaced by others which display the rates for inter-bank deposits
offered by leading banks.
"INDEBTEDNESS" of any Person means, without duplication, (i)
indebtedness of such Person for borrowed money (whether by loan or the issuance
and sale of debt securities) or for the deferred purchase or acquisition price
of property or services, other than accounts payable (other than for borrowed
money) incurred in the ordinary course of business; (ii) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for the account of such Person
(whether or not such obligations are contingent); (iii) Capital Lease
Obligations of such Person; (iv) obligations of such Person to redeem or
otherwise retire shares of capital stock of such Person; (v) indebtedness of
others of the type described in clause (i), (ii), (iii) or (iv) above secured by
a Lien on the property of such Person, whether or not the respective obligation
so secured has been assumed by such Person; and (vi) indebtedness of others of
the type described in clause (i), (ii), (iii) or (iv) above Guaranteed by such
Person.
"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.
"INTEREST PAYMENT DATE" means, with respect to any Advance, the last day
of an Interest Period applicable to such Advance.
"INTEREST PERIOD" means, with respect to any Advance, the period
commencing on the Business Day the Advance is disbursed to, but not excluding,
the Maturity Date, provided that:
(a) if any Interest Period pertaining to an 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 an 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
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Lender as such Lender may from time to time specify to the Borrowers, the Agent
and the Lenders.
"LENDER DRAWING PERCENTAGES" has the meaning specified in Schedule 1.
"LETTER OF CREDIT" means an import letter of credit made, or to be made,
under Section V.
"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" means, for each Advance, 0.45% per annum.
"MARGIN STOCK" means "margin stock" as such term is defined in Regulation
T, U or X of the U.S. Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect on the
condition (financial or otherwise), results of operations, properties, assets,
liabilities (including, without limitation, tax and ERISA liabilities and
Environmental Liabilities), business, operations, capitalization, shareholders'
equity, franchises or prospects of the Guarantor or any Borrower and its
Subsidiaries, taken as a whole; or (ii) a material adverse effect on the ability
of the Guarantor or any Borrower taken as a whole to perform its obligations
under the Agreement.
"MATURITY DATE" means:
(a) with respect to an Advance, the date on which that Advance becomes
due and payable pursuant to the terms thereof. If that date is not a
Business Day, the Maturity Date shall be extended to the next
Business Day, unless such Business Day falls after the Final Maturity
Date, in which case the Maturity Date shall be brought back to the
immediately preceding Business Day;
(b) with respect to a Guarantee, the date on which that Guarantee expires
pursuant to the term thereof.
"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 DRAWING" means a notice given by a Borrower to the Agent
pursuant to Section 3.1, 4.1 and 5.1, in substantially the form of Schedule 4.
"OBLIGATIONS" means all Drawings, and other Indebtedness, liabilities,
obligations, covenants and duties owing by the Borrowers to any Lender, the
Agent, or any other Person
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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.
"ORIGINAL EURO AMOUNT" means in relation to a Drawing:
(a) if that Drawing is denominated in Euro, the amount of that Drawing;
(b) if that Drawing is denominated in an Alternative Currency, the
equivalent in Euro of the amount of that Drawing calculated at the
spot exchange rate for the purchase of the relevant Alternative
Currency in the Brussels foreign exchange market with Euro at 11:00
a.m. two Business Days before the first day of the Drawing.
"OTHER TAXES" has the meaning specified in Section 2.5(b).
"PBGC" means the U.S. Pension Benefit Guaranty Corporation.
"PAYMENT OFFICE" means, for Euro, DBSA's office in Brussels, Belgium,
located on the date hereof at 17 Avenue Marnix, 1000 Brussels, and, for any
Alternative Currency, such office of Deutsche Bank 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 pension benefit plan (other than a Multiemployer
Plan) which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and either (i) is maintained or
contributed to, by the Guarantor or any member of the Controlled Group for
employees of the Guarantor or any member of the Controlled Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
the Guarantor or any Person which was at such time a member of the Controlled
Group for employees of any Person which was at such time a member of the
Controlled Group.
"PERMITTED LIENS" has the meaning specified in Section 10.1.
"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.
"SEC" means the Securities and Exchange Commission of the United States
of America.
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"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.
"SIGNIFICANT SUBSIDIARY" means at any time any Subsidiary of the
Guarantor which would meet the definition of a "significant subsidiary"
contained as of the date hereof in Regulation S-X of the SEC.
"SUBSIDIARY OBLIGATIONS" means Obligations that are owed by any
Subsidiary Borrower.
"TAXES" has the meaning specified in Section 2.5(a).
"TERMINATION DATE" means the earlier of the Final Maturity Date or the
date of termination in whole of the Commitment pursuant to Section 2.3 or 11.2.
"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, with respect to any Plan, at any
time, the amount (if any) by which (i) the value of all benefits liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such benefits under Title IV
of ERISA (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of the Guarantor or any member of
the Controlled Group to the PBGC or any other Person under Title IV of ERISA.
"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.
1.2. Accounting Terms
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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 8.5.
1.3. Currency Equivalents Generally
- -----------------------------------
For all purposes of this Agreement, the equivalent in any Alternative Currency
of an amount in Euro shall be determined at the rate of exchange quoted by
Deutsche Bank S.A. in Brussels, Belgium, at 11:00 a.m. (Brussels time) two
Business Days before the date of determination, to prime banks in Brussels for
the spot purchase in the Brussels foreign exchange market of such amount of Euro
with such Alternative Currency.
1.4 Authorization of Borrower Representatives
- ---------------------------------------------
For purposes of this Agreement including, without limitation, Section 3.1 of
this Agreement, each of the Borrowers hereby: (i) authorizes each of the
Borrower Representatives to make such requests, give such notices or furnish
such certificates as may be required by this Agreement for the benefit of any or
all of the Borrowers and (ii) authorizes the Agent to treat such requests or
notices given or made by a Borrower Representative being given or made by such
Borrower for purposes of this Agreement.
Unless otherwise agreed to by the Agent, and except as for purposes of Article
IV and Article V, the Borrower Representative shall be the only party entitled
to give such notices or make such requests directly to the Agent for purposes of
this Agreement.
Each of the Borrowers agrees to be bound by all requests and notices and other
such actions by a Borrower Representative and agrees that all notices to and
demands upon a Borrower Representative shall constitute effective notice to and
demand upon the Borrowers for all purposes hereof. In each case, the Agent and
the Banks shall be entitled to rely upon all notices, requests or certificates
made by a Borrower Representative pursuant to the provisions of this Agreement
as being made or furnished on behalf of, and with the effect of irrevocably
binding, the Borrowers.
ARTICLE II - THE FACILITY
2.1. The Drawings
- -----------------
(a) On the terms and conditions hereinafter set forth each Lender severally
agrees during the Commitment Period to make Advances to the Borrowers, or
issue Guarantees or Letters of Credit on behalf of the Borrowers, in
accordance with the "Lender Drawing Percentages" set forth in Schedule 1
hereto, denominated in Euro and/or Alternative Currency up to an
aggregate Original Euro Amount not exceeding the Commitment at that time.
(b) The aggregate amount of all Lenders' Drawings shall not exceed (whether
in Euro or in one or more Alternative Currencies) at any time outstanding
the aggregate Original Euro
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Amount of EUR 25,000,000 (twenty five million Euro) (as such amount may
be reduced from time to time pursuant to Section 2.3).
(c) Each Drawing shall be in an aggregate amount not less than EUR 250,000
(or the equivalent thereof in any Alternative Currency) and shall consist
of Drawings made to the same Borrower on the same day by the Lenders
ratably according to the Lender Drawing Percentages.
(d) During the existence of a Default or Event of Default, no Borrower may
elect to have a new Drawing made.
(e) Each Borrower is severally liable for its own Drawings, and each Borrower
is not a guarantor of the Drawings made to the other Borrowers.
2.2. Facility Fee
- -----------------
RPM agrees to pay to the Agent from the Closing Date a facility fee equal to
0.15% per annum of the Commitment, payable quarterly in advance.
2.3. 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 EUR 1,000,000 or an integral multiple of EUR 1,000,000 in
excess thereof.
2.4. Increased Costs
- --------------------
(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 Drawings, then the 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
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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.
2.5. 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, any Lender 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, such Lender or
the Agent has made all required deductions (including deductions
applicable to additional sums payable under this Section 2.5) 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,
such Lender 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.
The Agent hereby confirms that, at the Closing Date, there is no
deduction or withholding applicable of taxes for any payment under this
Agreement.
(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 2.5) paid by such Lender or the Agent
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(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This 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.
(f) In order to avoid the occurrence, or minimize the amount, of any Taxes or
Other Taxes, each Lender agrees to designate a different Lending Office
with respect to its Advances if such designation will reduce or prevent
the occurrence of such Taxes or Other Taxes and will not, in the judgment
of such Lender, be illegal or otherwise disadvantageous to such Lender.
(g) If (i) a Borrower is required to withhold taxes with respect to any
Lender pursuant to Section 2.5, (ii) any Lender has demanded compensation
under Section 2.4, (iii) the obligation of any Lender to make Drawings
has been suspended pursuant to Section 2.4 or Section 2.6, and so long as
no Default shall have occurred and be continuing, the Borrower shall have
the right to request one or more substitute banks, financial institutions
or funds (which may be one or more of the Lenders) reasonably
satisfactory to the Agent to purchase such Lender's Drawing by paying to
such Lender an amount equal to all of the obligations of the Borrower to
such Lender hereunder including, without limitation, principal and
accrued interest and fees. Any costs or expenses incurred by the Agent in
connection with assisting the Borrower pursuant hereto shall be paid upon
demand by such Borrower. The Agent shall respond promptly to any request
by a Borrower for its consent to a substitute for a Lender.
2.6. 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 Drawings under the Agreement, then,
on notice thereof by the Lender to the Borrowers through the Agent, the
obligation of that Lender to make Drawings 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 Advance, the
Borrowers shall prepay in full all 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
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continue to maintain such Advances to such day, or immediately, if the
Lender may not lawfully continue to maintain such Advances.
(c) If a Lender determines that it is unlawful to maintain any Guarantee or
Letter of Credit, the Borrowers shall take all the appropriate measures
to cancel such Guarantee or Letter of Credit and shall pay all due
interest and/or fees.
(d) Before giving any notice to the Agent pursuant to this Section 2.6, the
affected Lender shall designate a different Lending Office with respect
to its Drawings 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.
2.7. Sharing of Payments
- ------------------------
(a) If any Lender obtains any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) on account of
the Drawings made by it in excess of its ratable share of payments on
account of the Drawings obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the
Drawings 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
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 2.7(a) 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 2.7(a) shall
survive the payment of all Obligations.
(b) If the Agent or any Lender receives a payment insufficient to discharge
all the amounts then due and payable by the Borrower or either the
Guarantor under this Agreement, the Agent or the Lender agrees to apply
that payment towards the obligations of the Borrower or that Guarantor
under this Agreement in the following order:
(i) first, in or towards payment of unpaid costs or expenses of the
Agent in its capacity as such under or in connection with this
Agreement;
(ii) secondly, in or towards payment of any facility fee due but unpaid
under Section 2.2;
(iii) thirdly, in or towards payment pro rata of any accrued interest or
fee due but unpaid under this Agreement;
(iv) fourthly, in or towards payment pro rata of any principal due but
unpaid under this Agreement;
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(v) fifthly, in or towards payment pro rata of any other sums due but
unpaid under this Agreement.
The Agent will vary the order set out in paragraphs (i) to (v) inclusive
above if requested by all Lenders. The provisions of this Section 2.7(b)
will override any appropriation made by the Borrower or either Guarantor.
2.8. 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 Drawing made by 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 Drawing made hereunder, (ii) the name of the
Borrower, (iii) the type of Drawing and the Interest Period applicable
thereto and the currency in which such Drawings are made, (iv) the amount
of any principal or interest or fee 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 or the Lenders 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.
ARTICLE III - MAKING AN ADVANCE
3.1. Drawdown
- -------------
(a) Each Advance 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 Drawing (which notice must be received
by the Agent not later than 10:00 a.m. Brussels time) two Business Days
prior to the requested date of a proposed Drawing consisting of Advances.
The duration of an Advance shall be one, two, three, or six months.
The Notice of Drawing shall specify (i) the requested date of such
Advance, which shall be a Business Day, (ii) the name of the Borrower,
(iii) the aggregate amount of such Advance, (iv) the currency of such
Advance and (v) the Interest Period for each Advance to be made as part
of such Drawing.
(b) The Agent shall notify each Lender upon receipt of a Notice of Drawing
and of such Lender's pro rata share (pursuant to the Lender Advance
Percentages) thereof, no later
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than 11:00 a.m. Brussels Time. If the Advance is in an Alternative
Currency, the Agent shall also state the aggregate equivalent amount of
such Advance in Euro and such Lender's ratable portion of such Advance.
(c) Each Lender shall, on the date of such Advance, make available its pro
rata share (pursuant to the Lender Drawing Percentages) of the Advance in
the requested currency.
(d) Within the limits of the Commitment, each Borrower may borrow, repay and
re-borrow under this Section 2.2.
3.2. Prepayments
- ----------------
Prepayments of Advances are permitted on three Business Days' written notice to
the Agent, PROVIDED, that any Borrower who prepays an Advance reimburses each
Lender for its losses or expenses incurred or sustained as a consequence of such
prepayment in accordance with Section 3.3.
3.3. Funding Losses
- -------------------
The Borrowers agree to reimburse each Lender and to hold each Lender harmless
from any loss or expense that 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 Advance (including payments made after any acceleration
thereof);
(ii) the failure of any Borrower to borrow after such Borrower has given a
Notice of Drawing;
(iii) the failure of any Borrower to make any prepayment permitted hereunder
after giving notice thereof; or
(iv) the repayment of an Advance on a day which is not the last day of the
Interest Period with respect thereto;
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 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 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
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Lenders under this Section 3.3, each 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 Euro 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 Advance is in fact so funded.
3.4. Repayment
- --------------
Each of the Borrowers will repay the Advances made to such Borrower on the
Maturity Date of such Advance, provided that no Borrower shall be liable for any
Advance made to any other Borrower. Provided further, if the Termination Date
occurs prior to the Maturity Date, each of the Borrowers shall repay the
principal amount of all Advances to such Borrower on the Termination Date.
3.5. Interest
- -------------
(a) Each Borrower shall pay to the relevant Lender interest on the 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
the sum of the appropriate IBOR for the relevant Interest Period plus the
Margin.
(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 Borrowers of any liability hereunder or provide the basis
for any claim against the Agent.
(e) All computations of fee and interest under this Agreement shall be made
on the basis of a 360-day year or, where market practice otherwise
dictates, a 365-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.
ARTICLE IV - ISSUING A GUARANTEE
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4.1. Issue
- ----------
(a) Each Guarantee shall be issued on a Borrower' or a Borrower
Representative's irrevocable written notice (or telephonic notice,
promptly confirmed by a writing) delivered to the Agent in the form of a
Notice of Drawing (which notice must be received by the Agent not later
than 10:00 a.m. Brussels time) five Business Days prior to the requested
date of a proposed Drawing consisting of Guarantees.
The duration of a Guarantee shall be up to 364 days.
The Notice of Drawing shall specify (i) the requested date of such
Guarantee, which shall be a Business Day, (ii) the name of the Borrower,
(iii) the aggregate amount of such Guarantee and its currency, (iv) the
name of the beneficiary and (v) the Maturity Date.
(b) The Agent shall promptly notify each Lender upon receipt of a Notice of
Drawing and of such Lender's pro rata share (pursuant to the Lender
Advance Percentages) thereof. If the Guarantee is in an Alternative
Currency, the Agent shall also state the aggregate equivalent amount of
such Guarantee in Euro and such Lender's ratable portion of such
Guarantee.
(c) If a Lender is required to honor a Guarantee on behalf of a Borrower,
such Borrower will pay such Lender the amount so honored, within 5
Business Days from the date in which such Borrower receives written
notice from the Lender that such Guarantee was honored.
4.2. Fee
- --------
(a) Each Borrower shall pay to the relevant Lender a fee for the issue of
each Guarantee made to it by such Lender from the date of such Guarantee
until its Maturity Date (as amended or extended by request of such
Borrower), according to the terms specified by the Lender for that
Guarantee, which terms shall be customary for such a transaction in such
country.
(b) During the continuance of an Event of Default and after acceleration, the
Borrowers shall pay a fee 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 Guarantee immediately prior to the date on
which such Event of Default occurs.
(c) The Lender shall give prompt notice to the Borrower of the applicable
fee; PROVIDED that any failure to do so shall not relieve the Borrower of
any liability hereunder or provide the basis for any claim against the
Agent or the Lender.
ARTICLE V - ISSUING A LETTER OF CREDIT
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5.1. Issue
- ----------
(a) Each Letter of Credit shall be issued on a Borrower' or a Borrower
Representative's irrevocable written notice (or telephonic notice,
promptly confirmed by a writing) delivered to the Agent in the form of a
Notice of Drawing (which notice must be received by the Agent not later
than 10:00 a.m. Brussels time) five Business Days prior to the requested
date of a proposed Drawing consisting of Letter of Credit.
The duration of a Letter of Credit shall be up to 364 days.
The Notice of Drawing shall specify (i) the requested date of such Letter
of Credit, which shall be a Business Day, (ii) the name of the Borrower,
(iii) the aggregate amount of such Letter of Credit and its currency,
(iv) the name of the beneficiary, (v) the type of Letter of Credit, and
(vi) the Maturity Date.
(b) The Agent shall promptly notify each Lender upon receipt of a Notice of
Drawing and of such Lender's pro rata share (pursuant to the Lender
Advance Percentages) thereof. If the Letter of Credit is in an
Alternative Currency, the Agent shall also state the aggregate equivalent
amount of such Letter of Credit in Euro and such Lender's ratable portion
of such Letter of Credit.
5.2. Fee and/or Interest
- ------------------------
(a) Each Borrower shall pay to the Lender fees and/or interest for the issue
of each Letter of Credit made to it by such Lender from the date of such
Letter of Credit until its Maturity Date, according to the terms
specified by the Lender for that Letter of Credit, which terms shall be
customary for such a transaction in such country.
(b) During the continuance of an Event of Default and after acceleration, the
Borrowers shall pay an additional fee 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 Letter of Credit immediately
prior to the date on which such Event of Default occurs.
(c) The Lender shall give prompt notice to the Borrower of the applicable
interest and/or fee; PROVIDED that any failure to do so shall not relieve
the Borrower of any liability hereunder or provide the basis for any
claim against the Agent or the Lender.
ARTICLE VI - GUARANTY
6.1. Guaranty
- -------------
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RPM unconditionally and irrevocably guarantees the punctual payment and
performance when due, in Euro (or the equivalent thereof in any Alternative
Currency), whether at stated maturity, by acceleration or otherwise, of all
Subsidiary Obligations.
6.2. 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:
(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.
6.3. 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.
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6.4. 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 guaranty in this
Article VI, 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.
ARTICLE VII - CONDITIONS OF LENDING
7.1. Condition Precedent to Drawings
- ------------------------------------
The obligation of the Lenders to make the Drawings 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 Drawing 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 Drawings 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; and equivalent documents for each
Subsidiary Borrower;
(d) An existence and/or good standing certificate for RPM from the Secretary
of State of Ohio as of a recent date;
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(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 Calfee, Halter & Griswold LLP, General Counsel for
RPM, substantially in the form of Schedule 5 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.
7.2. Conditions Precedent to Each Drawing
- -----------------------------------------
The obligation of the Lenders to make a Drawing is subject to the satisfaction
of the following conditions precedent on or before the date the relevant Drawing
is to be made:
(a) With respect to each Drawing, the Agent shall have received a Notice of
Drawing.
(b) The representations and warranties made by the Borrowers contained in
Article VIII shall be true and correct on and as of the date of each
Drawing 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
Drawing.
(d) The Borrowers shall have paid all fees and expenses due at such time.
Each Notice of Drawing 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 Drawing, that the
conditions in this Section 7.2 are satisfied.
ARTICLE VIII - REPRESENTATIONS AND WARRANTIES
RPM represents and warrants to the Lenders and the Agent as follows:
8.1. Due Organization
- ---------------------
Each of the Guarantor and the Borrowers (a) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power, and has all governmental
licenses, authorizations, consents and approvals necessary to own its assets and
carry on its business as now being or as proposed to be conducted, except in the
case of such licenses, authorizations, consents and approvals, where the failure
to obtain them would not have a Material Adverse Effect; and (c) is qualified to
do
-25-
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business in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify would have
a Material Adverse Effect.
8.2. Due Authorization
- ----------------------
The execution, delivery and performance by each of the Guarantor and the
Borrowers of this Agreement are within such Guarantor and Borrowers' corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) such Guarantor and Borrowers' charter or by-laws or (ii) any law
or contractual restriction binding on or affecting such Guarantor and Borrowers,
in either case where such contravention would result in a Material Adverse
Effect.
8.3. 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 the Guarantor and the Borrowers of this
Agreement.
8.4. Enforceable Agreement
- --------------------------
This Agreement is the legal, valid and binding obligation of the Guarantor and
the Borrowers enforceable against the Guarantor and the Borrowers in accordance
with its terms, except as the enforceability thereof may be limited by general
public principles such as bankruptcy or Chapter 11 regulation.
The guaranty contained in Article VI is enforceable against RPM in accordance
with its terms, except as the enforceability thereof may be limited by general
public principles such as bankruptcy or Chapter 11 regulation.
8.5. Financial Information
- --------------------------
The consolidated balance sheets of RPM and its Subsidiaries as of May 31, 1998,
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 in all material respects 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, 1998, to the best
of Guarantor's knowledge (after due enquiry) there has been no material adverse
change in such condition or operations.
8.6. Litigation
- ---------------
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There is (to the best knowledge of the Guarantor) 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 Guarantor and the Borrowers, except as disclosed
on Schedule 2 attached hereto. The disclosure of litigation to the Agent or
Lenders pursuant to this Section does not necessarily mean that such litigation
is of the type described in this Section or that such Guarantor or Borrower
believes that such litigation has any merit whatsoever.
8.7. Margin Stock
- -----------------
Neither the Guarantor nor any of its Subsidiaries is engaged, principally or as
one of its important activity, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U or X 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.
8.8. No Default
- ---------------
No Default or Event of Default has occurred and is continuing or would result
from the incurring of any Obligations by each of the Guarantor and the
Borrowers. Each of the Guarantor and the Borrowers is not in default under or
with respect to any material Contractual Obligation which would result in a
Material Adverse Effect on the whole.
8.9. 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 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.
8.10. Title to Properties
- -------------------------
-27-
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Each of the Guarantor and its Subsidiaries will have on the Closing Date and at
all times thereafter, legal title or ownership of, or the right to use pursuant
to enforceable and valid agreements or arrangements, all tangible property, both
real and personal, and all franchises, licenses, copyrights, patents and
know-how, all of the foregoing which are material to the operation of its
business as proposed to be conducted.
8.11. Taxes
- -----------
Each of the Guarantor and its Subsidiaries has filed all material tax returns
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 Subsidiary's country). There is no proposed tax
assessment against such Borrower who would, if the assessment were made,
reasonably be expected to adversely affect the ability of the Lenders to collect
the Advances.
8.12. Environmental Matters
- ---------------------------
Except as has been previously reported in RPM's filings with the SEC, the
Guarantor and its Subsidiaries have not (i) failed to obtain any permits,
certificates, licenses, approvals, registrations and other authorizations which
are required under any applicable Environmental Law where failure to have any
such permit, certificate, license, approval, registration or authorization would
have a Material Adverse Effect; (ii) failed to comply with the terms and
conditions of all such permits, certificates, licenses, approvals, registrations
and authorizations, and are also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any
notice or demand letter from any regulatory authority issued, entered,
promulgated or approved thereunder where failure to comply would have a Material
Adverse Effect; or (iii) failed to conduct its business so as to comply in all
respects with applicable Environmental Laws where failure to so comply would
have a Material Adverse Effect. The disclosure of any failure or alleged failure
to the Lenders pursuant to this Section does not necessarily mean that failure
is of the type described in this Section or that such allegation has any merit
whatsoever.
8.13. 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.
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8.14. Regulated Entities
- ------------------------
Neither the Guarantor nor any of its Subsidiaries 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.
8.15. Subsidiary Borrowers
- --------------------------
All Borrowers are Wholly-Owned Subsidiaries of the Guarantor.
8.16. Insurance
- ---------------
The property of each of the Guarantor and the Borrowers 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 Guarantor or Borrower operates.
8.17. Copyrights, Patents, Trademarks and Licenses, Etc.
- --------------------------------------------------------
Such Guarantor 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 which would have a Material Adverse Effect
on the whole. Except as specifically disclosed in Schedule 2, 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 Guarantor,
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.
8.18. Year 2000
- ---------------
The cost to the Guarantor and its Subsidiaries of any reprogramming required to
permit the proper functioning, in and following the year 2000, of (i) the
computer systems of the Guarantor and its Subsidiaries and (ii) equipment
containing embedded microchips (including systems and equipment supplied by
others or with which the Guarantor's systems interface) and the testing of all
such systems and equipment, as so reprogrammed, and of the reasonably
foreseeable consequences of year 2000 to the Guarantor and its Subsidiaries
(including, without limitation, reprogramming errors and the failure to others'
systems or equipment) would not reasonably be expected to result in a Default or
Event of Default or have a Material Adverse Effect. To the knowledge of the
Guarantor, except for such of the reprogramming referred to in the preceding
sentence as may be necessary, which reprogramming the Guarantor expects to
complete in a timely fashion, the computer and management information systems of
the Guarantor and its Subsidiaries are and, with ordinary course upgrading and
maintenance and planned systems
-29-
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conversions and/or upgrades, will continue to be, sufficient to permit the
Guarantor to conduct its businesses without a Material Adverse Effect.
8.19. Reimbursement of the December14, 1993 Credit Agreement
- ------------------------------------------------------------
RPM, concurrently with the receipt by any Borrower of the initial Advance
hereunder, shall satisfy in full all its obligations to Credit Lyonnais Chicago
Branch ("CLCB"), Credit Lyonnais Cayman Island Branch ("CLCIB") and Credit
Lyonnais Belgium ("CLB") pursuant to that certain $30,000,000 Multi-Currency
Credit Agreement dated December 14, 1993 (as amended or modified) among RPM,
CLCB as agent and certain other banks as direct participants, including CLCB and
CLB, and shall apply for the cancellation of the latter agreement.
ARTICLE IX - AFFIRMATIVE COVENANTS
So long as any Advance or other Obligation or any interests and/or fees payable
thereunder remains unpaid or unsatisfied or the Commitment remains available,
RPM will:
9.1. 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 and consolidated balance sheet and its
accompanying income statement and statement of cash flows of the
Guarantor 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, Smith &
Dale LLP, or other independent certified public accountants of recognized
public standing, stating that such financial statements present fairly in
all material respects the consolidated financial position of such
Guarantor as of the dates indicated and the results of its operations and
cash flows for the periods indicated in conformity with GAAP. 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 Guarantor's three non-year-end fiscal quarters, a copy of the
unaudited consolidated financial statements of such Guarantor 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 consistently applied (except for footnotes of the
type required by the SEC to be included in quarterly reports on Form 10-Q
and subject to normal year-end audit adjustments).
9.2. Certificates; Other Information
- ------------------------------------
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Furnish to the Agent with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred to in
Sections 9.1(a) and (b) above, a Compliance Certificate (substantially in
the form of Schedule 3 hereto), signed by the chief financial officer of
the Guarantor, and if any condition or event which constitutes a Default
or any Event of Default exists, a statement in such certificate
specifying in reasonable detail the nature and period of existence
thereof and the action such Guarantor or Borrower has taken, is taking or
proposes to take with respect thereto;
(b) promptly upon their becoming available, copies all material registration
statements and all periodic reports (other than any registration
statements on Form S-8 or its equivalent), if any, which such Guarantor
shall have filed with the U.S. Securities and Exchange Commission (or any
successor agency), ; 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.
9.3. Notices
- ------------
Promptly notify the Agent and each Lender in writing of the following
conditions, events or situations to the extent they have not been previously
disclosed in RPM's filings with the SEC and to the extent that the failure to
give such notice would result in a Material Adverse Effect:
(a) promptly after the management of the Guarantor knows that any Event of
Default or Default has occurred and is continuing, 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 Guarantor or any 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 Guarantor or any 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 Guarantor or any Borrower (i) which has a
reasonable possibility of resulting in liability to the Guarantor or any
Borrower in the amount of EUR 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) any complaint, order, citation, notice or other written communication
from and Person with respect to, or if RPM becomes aware after due
inquiry of, (i) the existence or alleged existence of a violation of any
applicable Environmental Law or Environmental Liability at, upon, under
or within any property now or previously owned, leased, operated or used
RPM or any of its Subsidiaries or any part thereof, or due to the
operations or activities of RPM, any Subsidiary on or in connection with
such property or any part thereof (including
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receipt by the Guarantor or any Subsidiary of any notice of the happening
of any event involving the Release of a reportable quantity under any
applicable Environmental Law or cleanup of any Hazardous Substance), (ii)
any Release on such property or any part thereof in a quantity that is
reportable under any applicable Environmental Law, (iii) the commencement
of any cleanup pursuant to or in accordance with any applicable
Environmental Law of any Hazardous Substances on or about such property
or any part thereof and (iv) and pending or threatened proceeding for the
termination, suspension or non-renewal of any permit required under any
applicable Environmental Law, in each case which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
(e) if and when the Guarantor or any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC, (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy
of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any payment or contribution
to any Plan or Multiemployer Plan or makes any amendment to any Plan
which has resulted or could result in the imposition of a Lien or the
posting of a bond or other security, a certificate of a senior officer
setting forth details as to such occurrence and action, if any, which the
Guarantor or member of the Controlled Group is required or proposes to
take;
(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 9.1(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 9.3(a) shall
describe with particularity the provisions of this Agreement that have been
breached.
9.4. Preservation of Corporate Existence Rights
- -----------------------------------------------
(a) Except as permitted in Section 10.2, maintain and preserve in full force
and effect its corporate (or other form of) existence and good standing
under the laws of its jurisdiction
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of incorporation provided that nothing herein shall prevent (i) the
merger or dissolution of any Subsidiaries of the Guarantor into such
Guarantor so long as such Guarantor is the surviving corporation, (ii)
the merger of any Subsidiary of the Guarantor into any other Subsidiary
of the Guarantor, or (iii) the sale of any Subsidiary of the Guarantor
which is not a Significant Subsidiary. It is understood that the
preservation and maintenance of rights, privileges and franchises shall
not prevent such Guarantor and its Subsidiaries from disposing of assets
in any transaction not otherwise prohibited pursuant to this Section 9.4
or Section 10.2 hereof.
(b) Maintain and preserve all rights or privileges necessary or desirable in
the normal operation of its business and keep all of its property
necessary to its business in good working order and condition (having
regard to the condition of such properties at the time such properties
were acquired by such Guarantor or Borrower), normal wear and tear
excepted.
9.5. 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 companies of established reputation engaged in
the same or similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other companies of
established reputation. Upon request of the Agent or any Lender, such Borrower
shall furnish the Agent, with sufficient copies for each Lender, at reasonable
intervals (which prior to the occurrence of an Event of Default shall not exceed
one time in any 12 month period), 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 9.5.
9.6. Payment of Obligations
- ---------------------------
Pay all material taxes, assessments, governmental charges and other obligations
(the failure of which to pay would result in a Material Adverse Effect) 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 materially affect the Borrower's title to or
right to use any of its property in the aggregate.
9.7. Compliance with Laws
- -------------------------
The Guarantor will comply, and will cause each of its Subsidiaries to comply,
with the requirements of all applicable laws, rules, regulations and orders of
any governmental body or regulatory authority (including, without limitation,
all Environmental Laws), a breach of which
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would have a Material Adverse Effect, except where contested in good faith and
by proper proceedings.
9.8. 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 upon reasonable prior notice and at such
reasonable times during normal business hours.
9.9. Use of Drawings
- --------------------
Use the proceeds of the Advances solely to refinance Indebtedness and other
general lawful corporate purposes. Issue of Guarantees and Letters of Credit are
for general lawful corporate purposes.
9.10. 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 X - NEGATIVE COVENANTS
So long as any Advance or other Obligation or any interests and/or fees payable
thereunder remains unpaid or unsatisfied or the Commitment remains available,
RPM will not:
10.1. Liens, Etc.
- -----------------
Create or suffer to exist any Lien, upon or with respect to any of its
properties, whether now owned or hereafter acquired, 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 Guarantor 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;
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36
(b) Any Lien existing on the property of such Guarantor 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 8.11, provided that no notice of Lien has been filed or recorded
under the Code;
(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) Liens, 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 Guarantor
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 Guarantor 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 Guarantor 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
Guarantor or Subsidiary or is merged into or consolidated with such
Guarantor 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 extend to
property not covered by the Lien replaced or renewed;
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37
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.
10.2. Mergers, Consolidations and Dispositions of Assets
- --------------------------------------------------------
(a) Consolidate or merge with or into any other Person, or
(b) Sell, lease or otherwise transfer, directly or indirectly, in one
transaction or a series of related transactions, all or substantially all
of its business or assets; or
(c) Sell any Significant Subsidiary or any Borrower to which there is any
Drawing outstanding;
provided that, if immediately after giving effect to such transaction, no
Default shall have occurred and be continuing, nothing herein shall prevent (i)
the merger or dissolution of any Subsidiaries of the Guarantor into such
Guarantor so long as such Guarantor is the surviving corporation, (ii) the
merger of any Subsidiary of the Guarantor into any other Subsidiary of the
Guarantor, or (iii) the sale of any Subsidiary of the Guarantor which is not a
Significant Subsidiary.
10.3. 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 purchasing or carrying any
margin Stock.
10.4. 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 Guarantor or Subsidiary's country) and (b) as disclosed in the notes
accompanying the financial statements delivered pursuant to Sections 9.1(a) and
(b) hereof.
10.5. Leverage Ratio
- --------------------
Permit Indebtedness of the Guarantor and its Subsidiaries, determined on a
consolidated basis, on any date to exceed 65% of the sum of such Indebtedness
and consolidated shareholders' equity of the Guarantor and its Subsidiaries on
such date.
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10.6. Ratio of EBIT to Interest Expense
- ---------------------------------------
Permit the ratio, calculated as at the end of each fiscal quarter ending after
the Closing Date for the four fiscal quarters then ended, of Consolidated EBIT
for such period to Consolidated Interest Expense for such period to be less than
3:1.
ARTICLE XI - EVENTS OF DEFAULT
11.1. Events of Default
- -----------------------
Any of the following shall constitute an "Event of Default":
(a) A Borrower fails to pay (i) any principal of, or (ii) interest and/or fee
on, or (iii) any other amount payable on any Drawing within five Business
Days after the due date thereof; or
(b) Any representation or warranty made by the Guarantor or 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) The Guarantor or 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 after notice
thereof to the Guarantor or any Borrower by the Agent or any Lender and
results in a Material Adverse Effect; or
(d) The Guarantor 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 EUR 20,000,000 (or its equivalent in any
Alternative Currency) in the aggregate (but excluding Indebtedness
arising under this Agreement) of such Guarantor 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 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 for the payment of money in excess of EUR 35,000,000 in the
aggregate (or its equivalent in any Alternative Currency) is rendered by
a court or courts against the Guarantor or any of its Subsidiaries
(excluding any amount of such a judgment as to which an acceptable
insurer has acknowledged liability), provided that
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- within 10 days from the date of entry thereof, such judgment has not
been discharged, or
- within 10 days from the date of entry thereof, a stay of execution
thereof has not been procured, or
- within said period of 10 days (or such longer period during which
execution of the judgment shall have been stayed), no appeal has been
lodged and accepted so that the execution thereof has been stayed
during such appeal; or
(f) The Guarantor or any member of the Controlled Group shall fail to pay
when due an amount or amounts aggregating in excess of EUR 20,000,000 (or
its equivalent in any Alternative Currency) for which it shall have
become liable under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Pension Liabilities in excess of
EUR 20,000,000 shall be filed under Title IV of ERISA by the Guarantor or
any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer, any Plan or Plans having aggregate
Unfunded Pension Liabilities in excess of EUR 20,000,000; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Plan or Plans having aggregate Unfunded
Pension Liabilities in excess of EUR 20,000,000 must be terminated; or
there shall occur a complete or partial withdrawal from, or a default,
within the meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Multiemployer Plans which could cause the Guarantor or any member
of the Controlled Group to incur a current payment obligation in excess
of EUR 20,000,000; or
(g) RPM fails in any material respect to perform or observe any term,
covenant or agreement under its guaranty in Article VI; 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) 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, (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 the Guarantor or any Guarantor's
Subsidiary, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of the
Guarantor or any Guarantor'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 90 days after commencement,
filing or levy; (y) the Guarantor or any Guarantor's Subsidiary admits
the material 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
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Insolvency Proceeding; or (z) the Guarantor or any Guarantor'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.
11.2. 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 Drawings to be terminated,
whereupon such Commitment shall forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding Drawings, all
interest and/or fees 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 11.1 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 Drawings shall automatically terminate without notice to the
Borrowers and the unpaid principal amount of all outstanding Drawings and all
interest and/or fees 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.
ARTICLE XII - THE AGENT
12.1. 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 Drawings), 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
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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.
12.2. 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 the Guarantor or any Borrower or to
inspect the property (including the books and records) of the Guarantor or 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
telefax, e-mail) believed by it to be genuine and signed or sent by the proper
party or parties.
12.3. DBSA and Affiliates
- -------------------------
DBSA 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
Guarantor, any of its Subsidiaries and any Person who may do business with or
own securities of any Guarantor or any such Subsidiary, all as if DBSA was not
the Agent and without any duty to account therefor to the Lenders.
12.4. 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
Drawings then made by each of them (or if no such Drawings 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
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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 XIII - MISCELLANEOUS
13.1. Amendments
- ----------------
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.
13.2. Notices
- -------------
All notices and other communications provided for hereunder shall be in writing
(including facsimile and e-mail communication) and delivered, if to the
Guarantor or 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 hereof.
Any party hereto may in a written notice to the other parties change its address
or other information relating to payment. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telex or telecopier, delivered to the telegraph or cable office
or personally delivered or, in the case of a mailed notice, upon receipt, in
each case given or addressed as aforesaid.
13.3. 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.
13.4. Expenses
- --------------
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43
If an Event of Default occurs, 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 as a result of such Event of Default and collection,
enforcement, bankruptcy, insolvency and other proceeding resulting therefrom.
13.5. 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 11.2 to authorize the Agent to declare the Drawings due and payable
pursuant to the provisions of Section 11.2, 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.
13.6. 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 DBSA 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 Euros 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 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.
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44
13.7. Binding Effect
- --------------------
This Agreement shall become effective when it shall have been executed by the
Guarantor and 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 neither the Guarantor nor any Borrower shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
13.8. Participations
- --------------------
Each Lender may assign any Drawing or Drawings or all or any part of its
Commitment (i) to any affiliate thereof, (ii) to any other Lender, or (iii) with
the consent of the Guarantor and the Agent, which consents shall not be
unreasonably withheld, to any other bank or financial institution or fund;
provided that (x) any assignment shall not be less than EUR 5,000,000 or, if
less, shall constitute an assignment of all of such Lender's Commitment and
Drawings and (y) the Guarantor shall be deemed to be reasonable in withholding
consent if the assignee is not exempt from United States withholding taxes.
Upon execution by the assignor and the assignee of an instrument pursuant to
which the assignee assumes such rights and obligations, payment by such assignee
to such assignor of an amount equal to the purchase price agreed between such
assignor and such assignee and delivery to the Agent and the Guarantor of an
executed copy of such instrument together with payment by such assignee to the
Agent of a processing fee of EUR 2,500, such assignee shall have, to the extent
of such assignment (unless otherwise provided therein), the same rights and
benefits as it would have if it were a Lender hereunder and the assignor shall
be, to the extent of such assignment (unless otherwise provided therein)
released from its obligations under this Agreement. Upon the consummation of
such assignment, the Borrower shall make appropriate arrangements so that, if
required, new Drawings are issued to the assignor and the assignee. Such
assignee shall, prior to the effectiveness of the applicable instrument of
assumption, deliver to the Guarantor and the Agent certification as to exemption
from deduction or withholding of taxes in accordance with Section 2.5.
Each Lender may (without the consent of any other party to this Agreement) sell
participations in all or any part of any Drawing or Drawings made by it to
another bank or other entity, in which event the participant shall not have any
rights under this Agreement (the participant's rights against such Lender in
respect of such participation to be those set forth in the agreement executed by
such Lender in favour of the participant relating thereto).
The Guarantor agrees that each participant shall be entitled to the benefits of
Section 2.4 (Increased Costs), Section 2.6 (Illegality) and Section 2.7 (Sharing
of Payments) with respect to its participation; provided that no participant
shall be entitled to receive any greater amount
-43-
45
pursuant to such Sections than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Lender to such participant had no such transfer occurred.
Each Lender may furnish any information concerning the Guarantor and its
Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants) which have
agreed in writing to be bound by the provisions of Section 13.8 (b) hereof. The
Agent and the Guarantor may, for all purposes of this Agreement, treat any
Lender as a Lender until written notice of assignment or other transfer shall
have been received by them from such Lender.
13.9. 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.
13.10. 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 legality or enforceability of the remaining provisions of this Agreement or
any instrument or agreement required hereunder.
13.11. Governing law and jurisdiction
- -------------------------------------
(a) This agreement shall be governed by, and construed in accordance with,
the law of Belgium.
(b) Any legal action or proceeding with respect to this Agreement and any
other related documents may be brought in the courts of Brussels, and by
execution and delivery of this Agreement, each of the Guarantor and 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 Guarantor and 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 Guarantor, 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 Belgium law.
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46
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/ Keith R. Smiley
Name: Keith R. Smiley
Title: V.P. - Treasurer
Address for notices:
RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
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47
CARBOLINE EUROPE LTD.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address for notices:
Carboline Europe Ltd.
Torrington Avenue
Coventry CV4 9TJ
United Kingdom
Attention: Mark Hotchin
Facsimile: 44-780-813 89 54
Telephone: 44-12 03 69 41 47
With a copy to:
Carboline Europe Ltd.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
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48
MARTIN MATHYS N.V.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address:
Martin Mathys N.V.
Kolenbergstraat 23
B - 3545 Halen
Address for notices:
Martin Mathys N.V.
c/o RPM Europe B.V.
Braak 1
NL - 4704 RJ Roosendaal
Attention: Kurt Allen
Facsimile: 31-16 55 60 646
Telephone: 31-16 55 69 340
With a copy to:
Martin Mathys N.V.
c/o RPM, Inc.
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-47-
49
RADIANT COLOR N.V.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address for notices:
Radiant Color N.V.
Europark 1046
B - 3530 Houthalen
Attention: Frank Rutten
Facsimile: 011/52.66.79
Telephone: 011/52.49.22
With a copy to:
Radiant Color N.V.
c/o RPM, Inc.
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-48-
50
RPM BELGIUM N.V.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address for notices:
RPM Belgium N.V.
Henri Dunantstraat 11b
Industriepark Noord
B - 8700 Tielt
Attention: Martine De Witte
Facsimile: 051/40.00.71
Telephone: 051/40.38.01
With a copy to:
RPM Belgium N.V.
c/o RPM, Inc.
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-49-
51
RPM EUROPE B.V.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address for notices:
RPM Europe B.V.
Braak 1
NL - 4704 RJ Roosendaal
Attention: Kurt Allen
Facsimile: 31-16 55 60 646
Telephone: 31-16 55 69 340
With a copy to:
RPM Europe B.V.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-50-
52
RPM HOLDINGS UK LTD.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address for notices:
RPM Holdings UK Ltd.
Clifton House
Bunnlan Place
BASINGSTOKE
HAMPSHIRE RG 21 7 JE
United Kingdom
Attention: Mark Hotchin
Facsimile: 44-780-813 89 54
Telephone: 44-12 03 69 41 47
With a copy to:
RPM Holdings UK Ltd.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-51-
53
RPM LUX CONSULT S.A.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address:
RPM Lux Consult S.A.
Rue de la Gare 18
L - 6117 Junglinster
Address for notices:
RPM Lux Consult S.A.
c/o RPM Belgium N.V.
Henri Dunantstraat 11b
Industriepark Noord
B - 8700 Tielt
Attention: Martine De Witte
Facsimile: 051/40.00.71
Telephone: 051/40.38.01
With a copy to:
RPM Lux Consult S.A.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-52-
54
RPOW (FRANCE) S.A.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address:
RPOW (France) S.A.
Rue Jules Verne 11
F - 95322 Saint-Leu La Foret
Address for notices:
RPOW (France) S.A.
c/o RPM Europe B.V.
Braak 1
NL - 4704 RJ Roosendaal
Attention: Kurt Allen
Facsimile: 31-16 55 60 646
Telephone: 31-16 55 69 340
With a copy to:
RPOW (France) S.A.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-53-
55
RPOW UK Ltd.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address:
RPOW UK Ltd.
Clifton House
Bunnlan Place
BASINGSTOKE
HAMPSHIRE RG 21 7 JE
United Kingdom
Address for notices:
RPOW UK Ltd.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
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56
STONHARD DEUTSCHLAND GMBH
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address:
Stonhard Deutschland GmbH
Shumanstrasse 18
52146 Wurselen/Aachen
Germany
Address for notices:
Stonhard Deutschland GmbH
c/o Stonhard European Headquarters
143 Woluwelaan
B - 1831 Diegem
Attention: Michel Nolis
Facsimile: 32-2-720 47 27
Telephone: 32-2-720 89 82
With a copy to:
Stonhard Deutschland GmbH
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
-55-
57
TREMCO LTD.
By: /s/ Keith R. Smiley
Name: Keith R. Smiley
Title: Authorized Representative
Address for notices:
Tremco Ltd.
Edinburgh Avenue 393
Slough SL 1 4UF
United Kingdom
Attention: Peter Crawford
Facsimile: 44-17 53 82 26 40
Telephone: 44-17 53 69 16 96
With a copy to:
Tremco Ltd.
c/o RPM, Inc.
2628 Pearl Road
P. O. Box 777
Medina, Ohio 44258
Attention: Keith Smiley
Facsimile: 1-330-225 65 74
Telephone: 1-330-273 88 37
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58
DEUTSCHE BANK S.A., as "Agent"
By: /s/ Denis Cambier /s/ Vincent Pinte
Name: Denis CAMBIER Vincent PINTE
Title: Corporate Finance Officer Corporate Finance Manager
Address for notices:
Marnix Avenue 17
B - 1000 Brussels
Attention: Mr. Thierry Mathieu
Facsimile: 32-2-551 63 09
Telephone: 32-2-551 69 53
-57-
59
DEUTSCHE BANK S.A., as a "Lender"
By: /s/ Denis Cambier /s/ Vincent Pinte
Name: Denis CAMBIER Vincent PINTE
Title: Corporate Finance Officer Corporate Finance Manager
Lending Office and Address for notices:
Marnix Avenue 17
B - 1000 Brussels
Attention: Mr. Thierry Mathieu
Facsimile: 32-2-551 63 09
Telephone: 32-2-551 69 53
-58-
60
DEUTSCHE BANK AG LONDON, as a "Lender"
By: /s/ Alan Richardson /s/ Tanja Schnell
Name: Alan Richardson Tanja Schnell
Title: Director Manager
Lending Office and Address for notices:
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: Credit Administration - Roger Penn
Facsimile: 44-171-545 4638
Telephone: 44-171-545 7137
-59-