Issuing and Paying Agent Agreement (44K)
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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 100 Wall Street, Suite 1600, New York, New York
10005 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 Piper Jaffray.
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.
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(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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