EXHIBIT 10.22
ISSUING AND PAYING AGENT AGREEMENT
THIS ISSUING AND PAYING AGENT AGREEMENT (the "Agreement") is entered
into as of April 21, 2003 by and between U.S. Bank Trust National Association
(the "Bank") with offices at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000 and RPM International Inc. (the "Company") regarding the following
commercial paper program of the Company: the RPM International Inc. 4(2)
Commercial Paper Program (hereinafter referred to as the "Program")
WITNESSETH:
WHEREAS, at the request of the Company, the Bank is prepared to act (a)
as depositary for the safekeeping of certain notes of the Company which may be
issued and sold in the United States commercial paper market under the Program
(the "Commercial Paper Notes"; such Commercial Paper Notes when issued in
book-entry form being hereinafter referred to as "Book-Entry Commercial Paper
Notes" and when issued in the form of certificated promissory notes being
hereinafter referred to as "Certificated Commercial Paper Notes"), (b) as
issuing agent on behalf of the Company in connection with the issuance of the
Commercial Paper Notes, (c) as paying agent to undertake certain obligations to
make payments in respect of the Commercial Paper Notes, and (d) as depositary to
receive certain funds on behalf of the Company, as set forth herein, and
WHEREAS, this Agreement will govern the Bank's rights, powers and
duties as such depositary, issuing agent and paying agent for the Commercial
Paper Notes and the Company's rights and obligations in connection therewith.
NOW THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. APPOINTMENT OF BANK. The Company hereby appoints the Bank and
the Bank hereby agrees to act, on the terms and conditions specified herein, as
depositary, and issuing and paying agent for the Commercial Paper Notes issued
under the Program. The Commercial Paper Notes will be sold through such
commercial paper dealers and/or placement agents as the Company shall have
notified the Bank in writing from time to time (collectively, the "Dealers").
The Dealer is currently U.S. Bancorp Xxxxx Xxxxxxx.
2. LETTER OF REPRESENTATIONS. The Company will promptly deliver
to the Bank an executed version of the form of Letter of Representations (the
"Letter of Representations") provided by The Depository Trust Company ("DTC").
The Company understands and agrees that such Letter of Representations when
executed by the Company, the Bank and DTC shall supplement the provisions of
this Agreement and that the Company, the Bank, and DTC shall be bound by the
terms and provisions of the Letter of Representations, including any procedures
and operational arrangements applicable thereunder.
3. SUPPLY OF COMMERCIAL PAPER NOTES.
(a) The Company will from time to time furnish the Bank with an
adequate supply of Commercial Paper Notes, which shall be Book-Entry Commercial
Paper Notes and/or Certificated Commercial Paper Notes, as the Company in its
sole and absolute discretion considers appropriate. If Certificated Commercial
Paper Notes are to be issued, they shall be in the form provided by the Company,
shall be serially numbered and shall have been executed by manual or facsimile
signature of an Authorized Representative (as hereafter defined), but shall
otherwise be uncompleted. Book-Entry Commercial Paper Notes shall be
substantially in the forms attached to the Letter of Representations and shall
be represented by one or more master notes ("Master Note" or "Master Notes")
which shall be executed by manual or facsimile signature by an Authorized
Representative in accordance with the Letter of Representations. Pending receipt
of instructions pursuant to this Agreement, the Bank will hold the Certificated
Commercial Paper Notes and Master Note(s) in safekeeping for the account of the
Company or DTC, as the case may be, in accordance with the Bank's customary
practice.
(b) Each Certificated Commercial Paper Note or Master Note
delivered to the Bank shall be accompanied by a letter from the Company, as the
case may be, identifying the Certificated Commercial Paper Note or Master
Note(s) transmitted therewith, and the Bank shall acknowledge receipt of such
Certificated Commercial Paper Note(s) or Master Note(s) on the copy of such
letter or pursuant to some other form of written receipt deemed appropriate by
the Bank at the time of delivery to the Bank of such Certificated Commercial
Paper Note(s) or Master Note(s). Pending the issuance of Certificated Commercial
Paper Notes as provided in Section 5 hereof, all Certificated Commercial Paper
Notes and Master Note(s) delivered to the Bank shall be held by the Bank for the
account of the Company or DTC, as the case may be, for safekeeping in accordance
with the Bank's customary practice.
4. AUTHORIZED REPRESENTATIVES. With the delivery of this
Agreement, the Company is furnishing to the Bank, and from time to time
thereafter may furnish to the Bank, and shall furnish to the Bank upon the
Bank's request, certificates ("Incumbency Certificates") of a responsible
officer (a "Responsible Officer") of the Company certifying the incumbency and
specimen signatures of officers or agents of the Company authorized to execute
Commercial Paper Notes on behalf of the Company by manual or facsimile signature
and/or to take other action hereunder on behalf of the Company (each an
"Authorized Representative"); such Incumbency Certificate shall also specify the
names of employees of Dealers who are authorized to give notices and/or issuance
instructions to the Bank as provided herein (a "Dealer Representative"). Until
the Bank receives a subsequent Incumbency Certificate of the Company, the Bank
is entitled to rely on the last such Incumbency Certificate delivered to the
Bank for purposes of determining the Authorized Representatives and Dealer
Representatives. The Bank shall not have any responsibility to the Company to
determine by whom or by what means a facsimile signature may have been affixed
on the Commercial Paper Notes, or to determine whether any facsimile or manual
signature resembles the specimen signature(s) filed with the Bank by a duly
authorized officer of the Company. Any Commercial Paper Notes bearing the manual
or facsimile signature of a person who is an Authorized Representative on the
date such signature is affixed shall be binding on the Company after the
authentication thereof by the Bank notwithstanding that such person shall have
died or shall have otherwise ceased to hold his office on the date such
Commercial Paper Note is countersigned or delivered to the Bank.
5. COMPLETION, AUTHENTICATION AND DELIVERY OF COMMERCIAL PAPER
NOTES.
(a) In the case of Certificated Commercial Paper Notes, from time
to time during the term of this Agreement and subject to the terms and
conditions hereof, and upon the Bank's timely receipt of written, telecopy or
telex instructions or telephonic instructions (promptly confirmed in writing by
telecopy or electronic transmission) or notice transmitted directly to the
Bank's computers or in such other manner as the Bank then employs as the Bank's
normal business practice, not later than 12:30 pm New York City time on a day on
which the Bank is open for business (a "Business Day"), from an Authorized
Representative or a Dealer Representative, on the date of issuance of any
Certificated Commercial Paper Notes (in the case of instructions from an
Authorized Representative, a copy of such instructions shall be sent to the
Dealer Representative by said Authorized Representative), the Bank shall
withdraw the respective Certificated Commercial Paper Notes from safekeeping and
in accordance with the instructions so received, take the following actions with
respect to each such Certificated Commercial Paper Note:
i. date each such Certificated Commercial Paper Note the
date of issuance thereof (which shall be a Business
Day) and insert the maturity date thereof (provided
that the Authorized Representative or Dealer
Representative shall ensure that such date is a
Business Day and that it shall not be more than 270
days from the date of issue) and the face amount
(provided that Authorized Representative or the
Dealer Representative shall ensure that such face
amount is $250,000 or integral multiples of $1,000 in
excess thereof) thereof in figures;
ii. authenticate (by countersigning) each such
Certificated Commercial Paper Note in the appropriate
space provided thereon;
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iii. deliver in the Borough of Manhattan south of Xxxxxxxx
Street each such Certificated Commercial Paper Note
to the Dealer, or the consignee, if any, designated
by such Authorized Representative or Dealer
Representative for the account of the Dealer; and
iv. Insert the interest rate and applicable discount
amount.
(b) In the case of Book-Entry Commercial Paper Notes, from time to
time during the term of this Agreement and subject to the terms and conditions
hereof, and upon the Bank's timely receipt of written, telecopy or telex
instructions or telephonic instructions (promptly confirmed in writing by
telecopy or electronic transmission) or notice transmitted directly to the
Bank's computers or in such other a manner as the Bank then employs as the
Bank's normal business practices, not later than 2:00 pm New York City time on a
Business Day, from an Authorized Representative or a Dealer Representative, on
the date of issuance of any Book-Entry Commercial Paper Notes (in the case of
instructions from an Authorized Representative, a copy of such instructions
shall be sent to the Dealer Representative by said Authorized Representative),
the Bank shall give issuance instructions for the issuance of Book-Entry
Commercial Paper Notes to DTC in a manner set forth in, and take other actions
as are required by, the Letter of Representations. Instructions for the issuance
of Book-Entry Commercial Paper Notes shall include the following information
with respect to each Book-Entry Commercial Paper Note:
i. the date of issuance of each such Book-Entry
Commercial Paper Note (which shall be a Business
Day);
ii. the maturity date of each such Book-Entry Commercial
Paper Note (provided that the Representative or
Dealer Representative shall ensure that such date is
a Business Day and that it shall not be more than 270
days from the date of issue);
iii. the face amount (provided that the Authorized
Representative or the Dealer Representative shall
ensure that such face amount is $250,000 or integral
multiples of $1,000 in excess thereof) in figures;
and
iv. the interest rate and applicable discount amount.
(c) The Company understands that although the Bank has been
instructed to deliver Commercial Paper Notes against payment, delivery of
Commercial Paper Notes will, in accordance with the custom prevailing in the
commercial paper market, be made before receipt of payment in immediately
available funds. Therefore, once the Bank has delivered a Commercial Paper Note
to a Dealer or its agent as provided herein, the Company shall bear the risk
that a Dealer or its agent fails to remit payment for the Commercial Paper Note
to the Bank. The Bank shall have no liability to the Company for any failure or
inability on the part of the Dealer to make payment for Commercial Paper Notes.
Nothing in this Agreement shall require the Bank to purchase any Commercial
Paper Note or expend the Bank's own funds for the purchase price of a Commercial
Paper Note or Commercial Paper Notes.
(d) Except as may otherwise be provided in the Letter of
Representations, if at any time the Company instructs the Bank to cease issuing
Certificated Commercial Paper Notes and to issue only Book-Entry Commercial
Paper Notes, the Bank agrees that all Commercial Paper Notes will be issued as
Book-Entry Commercial Paper Notes and that no Certificated Commercial Paper
Notes shall be exchanged for Book-Entry Commercial Paper Notes unless and until
the Bank has received written instructions from an Authorized Representative
(any such instructions from a Dealer Representative shall not be sufficient for
this purpose) to the contrary.
(e) It is understood that the Bank is not under any obligation to
assess or review the financial condition or creditworthiness of any person to or
for whose account the Bank delivers a Commercial Paper Note pursuant to
instructions from an Authorized Representative or Dealer Representative or
advise the Company as to the results of any such appraisal or investigation the
Bank may have conducted on its own or of any adverse information concerning any
such person that may in any way have come to the Bank's attention.
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(f) It is understood that DTC may request the delivery of
Certificated Commercial Paper Notes in exchange for Book-Entry Commercial Paper
Notes upon the termination of DTC's services pursuant to the DTC Letter of
Representations. Accordingly, upon such termination, the Bank is authorized to
complete and deliver Certificated Commercial Paper Notes in partial or complete
substitution for Book-Entry Commercial Paper Notes of the same face amount and
maturity as requested by DTC. Upon the completion or delivery of any such
Certificated Commercial Paper Note, the Bank shall annotate the Bank's records
regarding the Master Note with respect to such Book-Entry Commercial Paper Notes
to reflect a corresponding reduction in the face amount of the outstanding
Book-Entry Commercial Paper Notes. The Bank's authority to so complete and
deliver such Certificated Commercial Paper Notes shall be irrevocable at all
times from the time a Book-Entry Commercial Paper Note is purchased until the
indebtedness evidenced thereby is paid in full.
(g) If the Bank shall receive written or telecopy instructions
(confirmed in writing in accordance with this Agreement) or telephonic
instructions (promptly confirmed in writing by telecopy or electronic
transmission) from the Company not to issue or deliver Commercial Paper Notes,
until revoked in writing or superseded by further written instructions from the
Company, the Bank shall not issue or deliver Commercial Paper Notes, provided,
however, that notwithstanding contrary instructions from the Company, the Bank
shall be required to deliver Commercial Paper Notes with respect to agreements
for the sale of Commercial Paper Notes concluded by an Authorized Representative
or Dealer Representative prior to receipt by the Authorized Representative or
Dealer Representative of notice of such instructions from the Company, which the
Authorized Representative or Dealer Representative shall be required to confirm
to the Bank in writing prior to the Bank's delivery of the Commercial Paper
Notes. For purposes of the preceding provision, the Bank may rely on written
notice given or delivered to the Bank by an Authorized Representative or Dealer
Representative as to whether any particular Commercial Paper Notes are to be
issued in respect of such agreements concluded by such Authorized Representative
or Dealer Representative, and the Bank shall have no obligation to make any
other or further investigation.
6. PROCEEDS OF SALE OF THE COMMERCIAL PAPER NOTES.
Contemporaneously with the execution and delivery of this Agreement, and for the
purposes of this Agreement, the Bank will establish an account designated as the
RPM International Inc. Note Account (the "Note Account"). On each day on which a
Dealer or its agent receives Commercial Paper Notes (whether through the
facilities of DTC in the manner set forth in the Letter of Representations or by
delivery in accordance with the provisions of this Agreement), all proceeds
received by the Bank in connection with such sale shall be credited in
immediately available funds to the Note Account. From time to time upon written
instructions received by the Bank from an Authorized Representative, the Bank
agrees to transfer immediately available funds from the Note Account to any bank
or trust company in the United States for the Company's account. If the Bank
chooses, in its sole discretion, to credit the Company's account before the Bank
has collected funds for delivery of Commercial Paper Notes, it is understood
that such credit shall be an advance to the Company to be promptly repaid to the
Bank from the proceeds of sale of Commercial Paper Notes. If any such advance is
not repaid on the day it is used, the Company shall repay such advance on the
next business day together with interest thereon at the rate charged by the Bank
for such advance (which rate shall be no less than the "Prime Rate"). As used in
this Agreement, "Prime Rate" means the rate of per annum interest which U.S.
Bank National Association ("USBNA") announces publicly or otherwise makes
available to the public from time to time as its "prime rate" (currently
calculated on the basis of the actual number of days elapsed over a year of 360
days) with any change in the "prime rate" to be effective on and as of the date
of any change in said "prime rate". The Prime Rate and the calculation thereof
may be established by USBNA in its sole discretion and is not necessarily the
lowest rate of interest offered by USBNA to its most creditworthy customers. The
Prime Rate is a variable or fluctuating rate which increases or decreases from
time to time.
7. PAYMENT OF MATURED COMMERCIAL PAPER NOTES.
(a) By 1:00 pm, New York time, on the date that any Commercial
Paper Notes are scheduled to mature, the Company shall ensure that there shall
have been transferred to the Bank for deposit in the Note Account immediately
available funds at least equal to the amount of Commercial Paper Notes maturing
on such date. When any matured Commercial Paper Note is presented to the Bank
for payment by the holder thereof (which may, in the case of Book-Entry
Commercial Paper Notes, be DTC or a nominee of DTC), payment shall be made from
and charged to the Note Account to the extent funds are available in said
account.
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(b) Each Commercial Paper Note presented to the Bank for payment
at or prior to 2:15 pm, New York City time, on any Business Day at or after the
maturity date of such Commercial Paper Note shall be paid by the Bank on the
same day as such presentation (or if presented after 2:15 pm, New York City time
on any such Business Day, then on the next succeeding Business Day) to the
extent funds are available in the Note Account.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby warrants and represents to the Bank, and, each request to issue
Commercial Paper Notes shall constitute the Company's continuing warranty and
representation, as follows:
(a) This Agreement is, and all Commercial Paper Notes delivered to
the Bank pursuant to this Agreement will be, duly authorized, executed and
delivered by the Company. The Bank's appointment to act for the Company
hereunder is duly authorized by the Company.
(b) The issuance and delivery of the Commercial Paper Notes will
not violate any state or federal law and the Commercial Paper Notes do not
require registration under the Securities Act of 1933, as amended.
(c) This Agreement constitutes, and the Commercial Paper Notes,
when completed, countersigned, and delivered pursuant hereto, will constitute,
the Company's legal, valid and binding obligations enforceable against the
Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general principles of
equity.
(d) The Company is a corporation duly organized and validly
existing under the laws of Delaware and no liquidation, dissolution, bankruptcy,
windup or similar proceedings have been instituted with respect to the Company.
(e) The Company has, and at all relevant times has had, all
necessary power and authority to execute, deliver and perform this Agreement and
to issue the Commercial Paper Notes.
(f) The Company has taken all actions which are required for the
authorization of the issuance of the Commercial Paper Notes, and for the
authorization, execution, delivery and performance of this Agreement, and such
actions do not require the approval or consent of any holder or trustee of any
indebtedness or obligations of the Company.
(g) The issuance of Commercial Paper Notes by the Company (i) does
not and will not contravene any provision of any governmental law, regulation or
rule applicable to the Company, and (ii) does not and will not conflict with,
breach or contravene the provisions of any material contract or other instrument
binding upon the Company, except with respect to both clauses (i) and (ii) where
such conflicts, breaches or contraventions would not, singularly or in the
aggregate, have a material adverse effect on the consolidated financial
condition, results of operation or business of the Company and its subsidiaries,
taken as a whole.
9. RELIANCE ON INSTRUCTIONS. Except as otherwise set forth
herein, the Bank shall incur no liability to the Company in acting hereunder
upon telephonic or other instructions contemplated hereby which the Bank
reasonably believed in good faith to have been given by an Authorized
Representative or a Dealer Representative, as the case may be. In the event a
discrepancy exists with respect to such instructions, the telephonic
instructions as understood by the Bank will be deemed the controlling and proper
instructions, unless such instructions are required by this Agreement to be in
writing.
10. CANCELLATION OF COMMERCIAL PAPER NOTES. Upon payment by the
Bank of Certificated Commercial Paper Note(s) presented for payment, the Bank
shall xxxx such Certificated Commercial Paper Note(s) as paid and (i) in due
course cancel Certificated Commercial Paper Note(s) presented for payment and
from time to time return such canceled Certificated Commercial Paper Notes to
the Company, or (ii) destroy such Certificated Commercial Paper Notes(s) and
deliver to the Company from time to time a destruction certificate identifying
all Certificated Commercial Paper Notes destroyed since the issuance of the
prior destruction certificate. After payment of any matured Book-Entry
Commercial Paper Notes, the Bank shall annotate the Bank's records to reflect
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the face amount of Book-Entry Commercial Paper Notes outstanding in accordance
with the Letter of Representations. Promptly upon the written request of the
Company, the Bank agrees to cancel and return to the Company all unissued
Certificated Commercial Paper Notes in the Bank's possession at the time of such
request.
11. NOTICES; ADDRESSES.
(a) All communications to the Bank by or on behalf of the Company
or a Dealer, by writing, telecopy, telex or telephone, and which relates to the
completion, delivery or payment of the Commercial Paper Note(s), are to be
directed to Commercial Paper Operations at the address indicated in Section
11(b) below.
(b) Notices and other communications hereunder shall (except to
the extent otherwise expressly provided) be in writing (which may be by
facsimile) and shall be addressed as follows, or to such other address as the
party receiving such notice shall have previously specified to the party sending
such notice:
if to the Company, at: RPM International Inc.
0000 Xxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Vice President and
Treasurer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to: P. Xxxxx Xxxxxxxx
Senior Vice President, General
Counsel and Secretary
RPM International Inc.
0000 Xxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Xxxxxx X. Xxxxx
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
if to the Bank,
CONCERNING THE DAILY ISSUANCE OF COMMERCIAL PAPER NOTES:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Commercial Paper Operations
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
CONCERNING ALL OTHER MATTERS:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
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Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(c) In any case where it is provided in this Agreement that a copy
of any instruction, demand or other notice is to be delivered to a Dealer, such
copy shall be delivered to the Dealer at the address set forth below by the same
means as the original thereof shall have been given, provided that the failure
of such copy to be given to any Dealer shall not invalidate or adversely affect
the original thereof:
Dealer: U.S. Bancorp Xxxxx Xxxxxxx
000 X.X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000-0000
Notices shall be deemed delivered when received at the address
specified above. For purposes of this Section 11, "when received" shall mean
actual receipt (i) of an electronic communication by telecopier or issuance
system specified in or pursuant to this Agreement; or (ii) of a written
communication hand-delivered at the office specified in or pursuant to this
Agreement.
12. LIABILITY. Neither the Bank nor the Bank's agents shall be
liable for any act or omission hereunder, except in the case of bad faith, gross
negligence or willful misconduct as described in Section 13 herein. The Bank's
duties and obligations shall be determined by the express provisions of this
Agreement, and the Letter of Representations (including the documents referred
to therein), and the Bank and the Bank's agents shall be responsible for the
performance of only such duties and obligations as are specifically set forth
herein and therein, and no implied covenants shall be read into any such
document against the Bank or the Bank's agents. Neither the Bank nor the Bank's
agents shall be required to ascertain whether any issuance or sale of Commercial
Paper Note(s) (or any amendment or termination of this Agreement) has been duly
authorized or is in compliance with any other agreement to which the Company is
a party (whether or not the Bank or any such agent is a party to such other
agreement).
13. INDEMNITY. The Company agrees to indemnify and hold the Bank,
the Bank's employees and any and all of the Bank's officers and agents harmless
from and against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs and expenses of
any nature (including, without limitation, attorneys' fees and expenses) arising
out of or resulting from this Agreement or the transactions or activities
contemplated hereby or the exercise of the Bank's rights and/or the performance
of the Bank's duties (or those of the Bank's agents and employees) hereunder;
provided, however that the Company shall not be liable to indemnify or pay the
Bank or any of the Bank's officers or employees with respect to any loss,
liability, action, suit, judgment, demand, damage, cost or expense that results
from or is attributable to the Bank's bad faith, gross negligence or willful
misconduct or that of the Bank's officers or employees. The foregoing indemnity
includes, but is not limited to, (a) any action taken or omitted to be taken by
the Bank or any of the Bank's officers or employees upon written, telecopy,
telephonic or other electronically transmitted instructions (each as authorized
herein) received by the Bank from, or believed by the Bank in good faith to have
been given by, the proper person or persons, (b) the Bank's improperly executing
or failing to execute any instruction because of unclear instructions, failure
of communications media or any other circumstances beyond the Bank's control,
and (c) the actions or inactions of DTC. The provisions of this Section 13 shall
survive (i) the Bank's resignation or removal hereunder and (ii) the termination
of this Agreement. In no event shall the Bank be liable for special, indirect or
consequential damages.
14. TERMINATION.
(a) This Agreement may be terminated at any time by either the
Bank or the Company by 15 days' prior written notice to the other, provided that
the Bank agrees to continue acting as issuing and paying agent hereunder until
such time as the Bank's successor has been selected and has entered into an
agreement with the Company to that effect. Such termination shall not affect the
respective liabilities of the parties hereunder arising prior to such
termination.
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(b) If no successor has been appointed within 30 days, then the
Bank have the right to petition a court of competent jurisdiction for the
appointment of a successor issuing and paying agent hereunder. The Bank shall be
reimbursed for any and all expenses in connection with any such petition and
appointment.
(c) On the Business Day following the date of termination of this
Agreement, the Bank shall destroy all Certificated Commercial Paper Notes in the
Bank's possession and shall transfer to the Company all funds, if any, then on
deposit in the Note Account. The Bank shall promptly notify the Company of all
Certificated Commercial Paper Notes so destroyed.
15. AMENDMENTS AND MODIFICATIONS. No amendment, modification or
waiver of any provision of this Agreement, nor any consent to any departure by
any party from any provision hereof binding upon such party, shall be effective
unless the same shall be in writing and signed by all the parties hereto.
16. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their respective
successors, including successors by merger, and assigns; provided, however, that
no party hereto may assign any of its rights or obligations hereunder, except
with the prior written consent of all the other parties hereto.
17. GOVERNING LAW.
(a) This Agreement shall be governed and construed in accordance
with the laws of the State of New York applicable to contracts made and
performed in the State of New York and, to the extent applicable, operating
circulars of the Federal Reserve Bank, federal laws and regulations as amended,
New York Clearing House rules and, to the extent not otherwise inconsistent with
this Agreement, general commercial bank practices applicable to commercial paper
issuance and payment.
(b) Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the United States Federal courts located in the
Borough of Manhattan and the courts of the State of New York located in the
Borough of Manhattan.
18. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts; each counterpart, when so executed and delivered,
shall be deemed to be an original; and all of which counterparts, taken
together, shall constitute one and the same agreement.
19. HEADINGS. Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
20. COMPENSATION AND EXPENSES. The Company shall pay the Bank from
time to time following the execution of this Agreement reasonable compensation
for all services rendered by the Bank hereunder as agreed between the Bank and
the Company. The Company shall reimburse the Bank upon the Bank's request for
all expenses, disbursements and advances incurred or made by the Bank in
accordance with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of the Bank's agents and
counsel) except any expense or disbursement attributable to the Bank's bad
faith, gross negligence or willful misconduct.
21. MISCELLANEOUS.
(a) No implied covenants or obligations of or against the Bank are
to read into this Agreement or any other agreement. No provision of this
Agreement shall require the Bank to risk the Bank's own funds or otherwise incur
any financial liability in the performance of any of the Bank's duties hereunder
or in the exercise of any of the Bank's duties hereunder or in the exercise of
any of the Bank's rights and powers hereunder.
(b) The Bank may consult with counsel, and any advice or written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by the
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Bank, in the absence of bad faith, gross negligence or willful misconduct on the
Bank's part, in reliance on such advice or opinion.
(c) The Bank shall not be accountable for the use or application
by any person of disbursements properly made by the Bank in conformity with the
provisions of this Agreement.
(d) The Bank may rely and shall be protected in acting upon any
document or writing presented to the Bank hereunder and in good faith reasonably
believed by the Bank to be genuine and to have been signed and presented by an
authorized person or persons.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
RPM INTERNATIONAL INC.
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Authorized Officer's Signature
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President - Treasurer
------------------------------
Date: April 21, 2003
------------------------------
U.S. BANK TRUST NATIONAL
ASSOCIATION
/s/ Xxxxx Xxxxx
---------------------------------------
Authorized Officer's Signature
Name: Xxxxx Xxxxx
------------------------------
Title: Vice President
------------------------------
Date: April 21, 2003
------------------------------
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SAMPLE CERTIFICATE
(ISSUER'S NAME)
SECRETARY'S CERTIFICATE
I, _____________________________, the duly elected, qualified and
acting Secretary/Assistant Secretary of_______________________________________
(the "Issuer") do hereby certify that appearing below as Item "A" is a true and
correct copy of the resolutions duly adopted by the Board of Directors of the
Issuer on _________________, 19____ and that said resolutions have not been
amended, modified or revoked, and are in full force and effect on the date
hereof; and furthermore that such resolutions are the only resolutions adopted
by the Issuer's Board of Directors or any committee thereof governing the
subject matter described there in. I do hereby further certify that appearing
below as "Item B" is an original list with the specimen signature and true and
correct title of each of the officers of the Issuer empowered to act as a
"Responsible Officer" under the resolution appearing in Item "A" and that said
list has not been amended, modified or revoked and is in full force and effect
on the date thereof.
ITEM "A"
BE IT RESOLVED by the Board of Directors of ___________________________
hereafter referred to as (the "Issuer") as follows:
RESOLVED that any single (titles) of the Issuer (the "Responsible
Officer(s)") be and they hereby are authorized to execute and deliver for and
behalf of the Issuer an Issuing and Paying Agent Agreement (the "Agreement") (a)
appointing U.S. Bank Trust National Association as an issuing and paying agent
and depository of the Issuer, and (b) providing for the safekeeping, completion,
countersignature, issuance, delivery and payment of commercial paper.
RESOLVED that any one of the Responsible Officer(s) may, in connection
with the foregoing, make, execute, and deliver in the name of the Issuer, under
the Issuer's corporate seal or otherwise, any documents or other instruments and
to take any and all such further actions as such Responsible Officer(s) may, in
their discretion, deem necessary or appropriate to effect the foregoing
transactions including, but not limited to, designating one or more of the
employees or agents of the Issuer as Authorized Representatives under the
Agreement and one or more employees of a dealer as Dealer Representatives under
the Agreement
ITEM "B"
Responsible Officer(s) of the Issuer
Name Title Signature
---- ----- ---------
________________________ _____________________ ____________________
________________________ _____________________ ____________________
________________________ _____________________ ____________________
IN WITNESS WHEREOF, I have hereunto signed my name.
________________________________________________________
Signature of Issuer's Secretary/Assistant Secretary
SAMPLE INCUMBENCY CERTIFICATE
OF RESPONSIBLE OFFICER OF
______________________________
(Company's Name)
RESPONSIBLE OFFICER'S CERTIFICATE
I, _______________________________, the duly elected, qualified
and acting ________________________________ of _____________________________ do
hereby certify and designate to U.S. Bank Trust National Association (the
"Bank") that appearing below or attached to this certificate is:
(a) A list with the specimen signature, names, and titles
of each of the officers or agents (each an
"Authorized Representative") of the above mentioned
Company who are authorized to execute Commercial
Paper Notes on behalf of the Company by manual or
facsimile signature and/or to take other actions
under the Issuing and Paying Agent Agreement between
the Company and the Bank, and
(b) A list of employees of Dealers ("Dealer
Representatives") who are authorized to give notices
and/or issuance instructions, to the Bank in writing
or via electronic communication link, such list
containing the names and specimen signature of each
of such Dealer Representatives.
(1) List of Authorized Representatives:
Name Title Specimen
Signature
_____________________ __________________________ _______________________
_____________________ __________________________ _______________________
_____________________ __________________________ _______________________
_____________________ __________________________ _______________________
(2) List of Dealer Representatives:
Name Signature
________________________ ___________________________
________________________ ___________________________
________________________ ___________________________
________________________ ___________________________
IN WITNESS WHEREOF, I have hereunto signed by name.
Name of Responsible Officer:_________________________
Title of Responsible Officer:________________________
