EX-4.1



 












 


Exhibit 4.1




 





FIVE
YEAR CREDIT AGREEMENT




Dated
as of May 23, 2006




among




THE SHERWIN-WILLIAMS COMPANY,




THE LENDERS PARTY HERETO,




CITICORP USA, INC.,

as Administrative Agent,




CITICORP USA, INC.,

as Issuing Bank,




and




JPMORGAN CHASE BANK, N.A.,

as Paying Agent




 






$100,000,000 REVOLVING AND LETTER OF CREDIT FACILITY




 











 



 




Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	Article I Definitions	 	 	1	 
	 

	 	SECTION 1.01. Defined Terms
	 	 	1	 
	 

	 	SECTION 1.02. Terms Generally
	 	 	13	 
	 

	 	SECTION 1.03. Accounting Terms; GAAP
	 	 	14	 
	 
	 	 	 	 	 	 
	Article II The Credits	 	 	14	 
	 

	 	SECTION 2.01. Commitments
	 	 	14	 
	 

	 	SECTION 2.02. Loans and Borrowings
	 	 	15	 
	 

	 	SECTION 2.03. Requests for Borrowings
	 	 	15	 
	 

	 	SECTION 2.04. The Letter of Credit
	 	 	16	 
	 

	 	SECTION 2.05. Funding of Borrowings
	 	 	19	 
	 

	 	SECTION 2.06. Interest Elections
	 	 	19	 
	 

	 	SECTION 2.07. Termination of Commitments; Reduction of Commitments
	 	 	20	 
	 

	 	SECTION 2.08. Repayment of Loans; Evidence of Debt; Obligations Absolute
	 	 	21	 
	 

	 	SECTION 2.09. Prepayment of Loans
	 	 	22	 
	 

	 	SECTION 2.10. Fees
	 	 	23	 
	 

	 	SECTION 2.11. Interest
	 	 	23	 
	 

	 	SECTION 2.12. Alternate Rate of Interest
	 	 	23	 
	 

	 	SECTION 2.13. Increased Costs
	 	 	24	 
	 

	 	SECTION 2.14. Break Funding Payments
	 	 	25	 
	 

	 	SECTION 2.15. Taxes
	 	 	26	 
	 

	 	SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	27	 
	 

	 	SECTION 2.17. Mitigation Obligations; Replacement of Lenders
	 	 	29	 
	 
	 	 	 	 	 	 
	Article III Representations and Warranties	 	 	30	 
	 

	 	SECTION 3.01. Organization; Powers
	 	 	30	 
	 

	 	SECTION 3.02. Authorization; Enforceability
	 	 	30	 
	 

	 	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	30	 
	 

	 	SECTION 3.04. Financial Condition
	 	 	31	 
	 

	 	SECTION 3.05. Disclosure
	 	 	31	 
	 

	 	SECTION 3.06. Federal Reserve Regulations
	 	 	31	 
	 

	 	SECTION 3.07. Investment Company Status
	 	 	31	 
	 
	 	 	 	 	 	 
	Article IV Conditions	 	 	31	 
	 

	 	SECTION 4.01. Conditions to Effective Date
	 	 	31	 
	 

	 	SECTION 4.02. Condition to Each Credit Event
	 	 	32	 
	 
	 	 	 	 	 	 
	Article V Affirmative Covenants	 	 	32	 
	 

	 	SECTION 5.01. Financial Statements; and Other Information
	 	 	32	 
	 

	 	SECTION 5.02. Notices of Material Events
	 	 	34	 
	 

	 	SECTION 5.03. Existence; Conduct of Business
	 	 	34	 





i










 



 


	 	 	 	 	 	 	 
	 	 	 	 	Page
	Article VI Negative Covenants	 	 	34	 
	 

	 	SECTION 6.01. Equal and Ratable Security
	 	 	34	 
	 

	 	SECTION 6.02. Fundamental Changes
	 	 	35	 
	 

	 	SECTION 6.03. Limitation on Sale/Leaseback Transactions
	 	 	35	 
	 
	 	 	 	 	 	 
	Article VII Events of Default	 	 	35	 
	 
	 	 	 	 	 	 
	Article VIII The Administrative Agent and the Paying Agent	 	 	37	 
	 
	 	 	 	 	 	 
	Article IX Miscellaneous	 	 	39	 
	 

	 	SECTION 9.01. Notices
	 	 	39	 
	 

	 	SECTION 9.02. Waivers; Amendments
	 	 	39	 
	 

	 	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	40	 
	 

	 	SECTION 9.04. Successors and Assigns
	 	 	42	 
	 

	 	SECTION 9.05. Survival
	 	 	44	 
	 

	 	SECTION 9.06. USA Patriot Act
	 	 	44	 
	 

	 	SECTION 9.07. Counterparts; Integration; Effectiveness
	 	 	44	 
	 

	 	SECTION 9.08. Severability
	 	 	45	 
	 

	 	SECTION 9.09. Right of Setoff
	 	 	45	 
	 

	 	SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process;
Process Agent; Waiver of Immunity
	 	 	45	 
	 

	 	SECTION 9.11. WAIVER OF JURY TRIAL
	 	 	46	 
	 

	 	SECTION 9.12. Headings
	 	 	46	 
	 

	 	SECTION 9.13. Confidentiality
	 	 	46	 
	 

	 	SECTION 9.14. Interest Rate Limitation
	 	 	47	 






	 	 	 
	SCHEDULES:
	 	 
	 
	 	 
	Schedule 2.01

	 	Commitments
	 
	 	 
	EXHIBITS:
	 	 
	 
	 	 
	Exhibit A

	 	Form of Assignment and Acceptance
	Exhibit B

	 	Form of Notes
	Exhibit C

	 	Form of Notice of LC Request
	Exhibit D

	 	Form of Letter of Credit












 



 



FIVE
YEAR CREDIT
AGREEMENT, dated as of May 23, 2006 (as amended,
supplemented, amended and restated or otherwise modified
from time to time, this “Agreement”), among THE
SHERWIN-WILLIAMS COMPANY, an Ohio corporation (the
“Company”), the LENDERS party hereto (the “Lenders”),
CITICORP USA, INC. (“CUSA”), as Administrative Agent (in
such capacity the “Administrative Agent”), CUSA, as Issuing
Bank (in such capacity, the “Issuing Bank”), and JPMORGAN
CHASE BANK, N.A., as Paying Agent (the “Paying Agent”).



     The Company has requested the Lenders to extend credit to enable it to borrow on a revolving
credit basis on and after the date hereof and at any time and from time to time during the
Availability Period (such term and each other capitalized term used and not otherwise defined
herein having the meaning assigned to it in Article I) a
principal amount not in excess of
$100,000,000 at
any time outstanding. The Company has further requested the Issuing Bank to issue the Letter of
Credit to support other payment obligations of the Company. The proceeds of borrowings hereunder
are to be used for general corporate purposes of the Company and its Subsidiaries and other
purposes not inconsistent with this Agreement.



     The Lenders and the Issuing Bank are willing to extend such credit to the Company on the terms
and subject to the conditions herein set forth.



     Accordingly, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS





SECTION 1.01. Defined Terms.




As used in this Agreement, the following terms have the meanings specified below:




     “ABR”, when used in reference to any Loan or Borrowing, means that such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




     “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%)
equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.




     “Administrative Agent” has the meaning ascribed to it in the preamble to this
Agreement.




     “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.









 



2



     “Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.




     “Agents” means the Administrative Agent and the Paying Agent.




     “Agreement” has the meaning ascribed to it in the preamble to this agreement.




     “Alternate Base Rate” means, for any day, a rate per annum equal to the higher of (a)
the Base Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Base
Rate or the Federal Funds Effective Rate shall be effective from and including the effective
date of such change in the Base Rate or the Federal Funds Effective Rate, respectively.




     “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.




     “Assignment and Acceptance” means an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.




     “Attributable Indebtedness” in respect of a Sale/Leaseback Transaction means, as of the
time of determination, (i) if the obligation in respect of such Sale/Leaseback Transaction
is a Capital Lease Obligation, the amount of such obligation determined in accordance with
GAAP and included in the financial statements of the lessee or (ii) if the obligation in
respect of such Sale/Leaseback Transaction is not a Capital Lease Obligation, the total Net
Amount of Rent required to be paid by the lessee under such lease during the remaining term
thereof (including any period for which the lease has been extended), discounted from the
respective due dates thereof to such determination date at the rate per annum borne by the
Company’s Indebtedness issued pursuant to the debentures, notes, bonds or other evidence of
debt issued pursuant to the Indenture, compounded semiannually or, if no such Indebtedness
is then outstanding, at the rate per annum borne by the Company’s long-term Indebtedness
compounded semiannually.




     “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.




     “Base Rate” means the rate of interest per annum publicly announced from time to time
by Citibank, as its “base” rate; each change in the Base Rate shall be effective from and
including the date such change is publicly announced as being effective.




     “Board” means the Board of Governors of the Federal Reserve System of the United States
of America.









 



3



     “Borrowing” means Loans of the same Type, made, converted or continued on the same date
and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.




     “Borrowing Request” means a request by the Company for Loans in accordance with Section
2.03.




     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that the term “Business Day” shall also exclude, when used in connection with a
Eurodollar Loan, any day on which banks are not open for dealings in dollar deposits in the
London interbank market.




     “Capital Lease” means, with respect to any Person which is the lessee thereunder, any
lease or charter of property, real or personal, which would, in accordance with GAAP, be
recorded as an asset under a capital lease on a balance sheet of such Person.




     “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.




     “Change in Law” means (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.13(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if
any) with any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.




     “Citibank” means Citibank, N.A.




     “Code” means the Internal Revenue Code of 1986, as amended from time to time.




     “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Loans and acquire participations in the Letter of Credit, as such commitment may be (a)
reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable.




     “Company” means The Sherwin-Williams Company, an Ohio corporation.









 



4



     “Consolidated Net Revenue” means, for any period, the net revenue of the Company and
its Subsidiaries for such period, determined on a consolidated basis in accordance with
GAAP.




     “Consolidated Net Tangible Assets” means, as of any date of determination, the sum of
the amounts that would appear on a consolidated balance sheet of the Company and its
Subsidiaries for the total assets (less accumulated depletion, depreciation or amortization,
allowances for doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, after giving effect to purchase accounting and after deducting therefrom, to the
extent included in total assets, in each case as determined on a consolidated basis in
accordance with GAAP (without duplication): (i) the aggregate amount of liabilities of the
Company and its Subsidiaries which may properly be classified as current liabilities
(including taxes accrued as estimated); (ii) current Indebtedness and current maturities of
long-term Indebtedness; (iii) minority interests in the Company’s Subsidiaries held by
Persons other than the Company or a wholly owned subsidiary of the Company; and (iv)
unamortized debt discount and expenses and other unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, copyrights, licenses, organization or
developmental expenses and other intangible items.




     “Consolidated Total Assets” means, on any date, the aggregate amount of assets of the
Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP.




     “Control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.




     “Credit Event” means each Borrowing and each issuance, renewal, extension or increase
of the Letter of Credit.




     “Default” means any event or condition that constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of
Default.




     “dollars” or “$” refers to lawful money of the United States of America.




     “Effective Date” means the date on which the conditions set forth in Section 4.01 are
satisfied or waived in accordance with Section 9.02.




     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions or binding agreements issued, promulgated or entered into by
any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release of any
Hazardous Material.









 



5



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities),
of the Company or any Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.




     “Eurodollar”, when used in reference to any Loan or Borrowing, means that such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference
to the Adjusted LIBO Rate.




     “Event of Default” has the meaning assigned to such term in Article VII.




     “Excluded Taxes” means, with respect to any Agent, any Lender, the Issuing Bank, or any
other recipient of any payment to be made by or on account of any obligation of the Company
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the
United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in
which its applicable lending office is located, (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction in which the
Company is located, (c) in the case of a Foreign Lender (other than an assignee pursuant to
a request by the Company under Section 2.17(b)) or any foreign branch or Affiliate of a
Lender caused by such Lender to make a Loan under Section 2.02(b), any withholding tax that
is imposed by the United States of America on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement or such foreign branch or
Affiliate is caused to make such a Loan or is attributable to such Foreign Lender’s or such
foreign branch’s or Affiliate’s failure or inability to comply with Section 2.15(e), except
to the extent that such Foreign Lender’s assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Company with respect to such withholding
tax pursuant to Section 2.15(a) and (d) in the case of any Lender, any withholding tax that
is imposed by the United States of America on amounts payable to such Lender that are
attributable to such Lender’s failure to comply with Section 2.15(e).




     “Facility Fee” has meaning ascribed to it in Section 2.10.




     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.









 



6



     “Fee Letter” means the fee letter, dated as of the date hereof, between the Company and
CUSA, as amended, modified or supplemented from time to time.




     “Financial Officer” means, with respect to the Company, the chief financial officer,
principal accounting officer, treasurer or controller of the Company.




     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Company is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.




     “GAAP” means generally accepted accounting principles in the United States of America
applied in a manner consistent with the audited financial statements of the Company referred
to in Section 3.04.




     “Governmental Authority” means the government of the United States of America, or any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.




     “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. For purposes hereof, the amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the
related primary obligations, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guarantor in good faith.




     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.









 



7



     “Hedging Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to,
one or more rates, currencies or prices of commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic, financial or
pricing risk or value, or any similar transaction or any combination of such transactions;
provided that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or consultants of the
Company or the Subsidiaries shall be a Hedging Agreement. The amount of the obligations of
the Company or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the Company or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.




     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property acquired by such
Person, (d) all obligations of such Person in respect of the deferred purchase price of
property or services, (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien
on property owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, and (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit, letters of
guaranty and banker’s acceptances; provided, however, that Indebtedness of any Person shall
not include (i) trade payables, (ii) any obligations of such Person incurred in connection
with letters of credit, letters of guaranty or similar instruments obtained or created in
the ordinary course of business to support obligations of such Person that do not constitute
Indebtedness or (iii) endorsements of checks, bills of exchange and other instruments for
deposit or collection in the ordinary course of business.




     “Indemnified Taxes” means Taxes (other than Excluded Taxes) and Other Taxes.




     “Indemnitee” shall have the meaning ascribed to it in Section 9.03.




     “Indenture” means the Indenture, dated as of February 1, 1996, between the Company and
JPMorgan Chase Bank, N.A., as trustee, as amended, modified or supplemented from time to
time.




     “Information” shall have the meaning ascribed to it in Section 9.13.




     “Interest Election Request” means a request by the Company to convert or continue a
Borrowing in accordance with Section 2.06.




     “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December, and (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan









 



8



is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months’ duration, each day during such Interest Period that occurs at intervals
of three months’ duration after the first day of such Interest Period.




     “Interest Period” means with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is 7 days (if generally available), or one, two, three or six months
thereafter, as the Company may elect; provided, that (a) if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business
Day, (b) any Interest Period of one month or more that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period and (c) any Interest Period that otherwise would
extend beyond the Maturity Date shall end on the Maturity Date. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.




     “Issuing Bank” has the meaning ascribed to it in the preamble to this Agreement.




     “LC Disbursement” means a payment made by the Issuing Bank pursuant to the Letter of
Credit.




     “LC Exposure” means, at any time, the sum of (a) the undrawn amount of the Letter of
Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Company at such time. The LC Exposure of any Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such time.




     “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.




     “Letter of Credit” has the meaning assigned to that term in Section 2.04(a).




     “LIBO Rate” means, with respect to each Interest Period, the rate per annum determined
by the Administrative Agent to be the offered rate for deposits in dollars with a term
comparable to such Interest Period that appears on the Telerate Page at approximately 11:00
a.m., London time, two Business Days prior to the beginning of such Interest Period;
provided, however, that if at any time for any reason such offered rate does not appear on
the Telerate Page, “LIBO Rate” shall mean, with respect to each day during each Interest
Period, the rate per annum (rounded upward to the nearest 1/100 of 1%) at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of Citibank or any of its









 



9



Affiliates in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the beginning of such
Interest Period. In the event the LIBO Rate is determined as set forth in the next
preceding sentence, the LIBO Rate shall be determined by the Administrative Agent on the
basis of the applicable rates furnished to and received by the Administrative Agent from
Citibank or any of its Affiliates on the second Business Day prior to the commencement of
such Interest Period.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset. For the purposes of this
Agreement, the Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement relating to
such asset.



     “Loan Documents” means, collectively, this Agreement and the Fee Letter



     “Loans” means the loans made by the Lenders to the Company pursuant to Sections 2.03
and 2.04(e).



     “Margin Stock” shall have the meaning provided in Regulation U of the Board.



     “Material Adverse Effect” means an event or circumstance that constitutes a material
adverse effect on (a) the business, operations or condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole, (b) the ability of the Company to perform any
of its material obligations under this Agreement or (c) the legality, validity, binding
effect or enforceability against the Company of this Agreement.



     “Material Subsidiary” means, at any time, (a) each Subsidiary that would be a
“significant subsidiary” within the meaning of Rule 1-02 under Regulation S-X promulgated by
the SEC and (b) each other Subsidiary designated as a “designated subsidiary” by the
Company. The Company will designate one or more Subsidiaries as “designated subsidiaries”
when and as necessary in order that there will at no time be two or more Subsidiaries that
are not Material Subsidiaries under the preceding sentence but that, if considered together
as a single Subsidiary, would cause the total for all such Subsidiaries to exceed 20% of
either (i) Consolidated Total Assets at such time or (ii) Consolidated Net Revenue for the
period of four calendar quarters ended at or most recently prior to such time.



     “Maturity
Date” means June 20, 2011.



     “Net Amount of Rent” as to any lease for any period means the aggregate amount of rent
payable by the lessee with respect to such period after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges. In the case of any lease that is terminable by the lessee upon the payment
of a penalty, such net amount shall also include the amount of such penalty, but no rent
shall be considered as payable under such lease subsequent to the first date upon which it
may be so terminated.









 



10



     “Note” has the meaning ascribed to it in Section 2.08(e)




     “Notice of LC Request” means a notice substantially in the form of Exhibit C hereto
delivered by the Company to the Issuing Bank and the Administrative Agent pursuant to
Section 2.04(b) with respect to the Letter of Credit.




     “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising (but excluding any tax,
charge or levy that constitutes an Excluded Tax) from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




     “Participant” has the meaning ascribed to it in Section 9.04(e).




     “Paying Agent” shall have the meaning ascribed to it in the preamble to this Agreement.




     “Paying Agent’s Account” means the account of the Paying Agent maintained by the Paying
Agent at its office at 4 New York Plaza, 15th Floor, New York, New York
10004-2413, or such other account of the Paying Agent as is designated in writing from time
to time by the Paying Agent to the Company, the Administrative Agent, the Issuing Bank and
the Lenders for such purpose




     “Permitted Liens” means, with respect to any Person, (a) pledges or deposits by such
Person under worker’s compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (including government
contracts, but excluding contracts for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure performance, surety or appeal
bonds to which such Person is a party or which are otherwise required of such Person, or
deposits as security for contested taxes or import duties or for the payment of rent or
other obligations of like nature, in each case incurred in the ordinary course of business;
(b) Liens imposed by law, such as carriers’, warehousemen’s, laborers, materialmen’s,
landlords’, vendors’, workmen’s, operators’, producers and mechanics’ Liens, in each case
for sums not yet due or being contested in good faith by appropriate proceedings; (c) Liens
for property taxes, assessments and other governmental charges or levies not yet delinquent
or which are being contested in good faith by appropriate proceedings; (d) survey
exceptions, encumbrances, easements, defects, irregularities, or deficiencies in title to
easements, or reservations of or with respect to, or rights of others for or with respect
to, licenses, rights-of-way, sewers, electric and other utility lines and usages, telegraph
and telephone lines, pipelines, surface use, operation of equipment, permits, servitudes and
other similar matters, or zoning or other restrictions as to the use of real property or
Liens incidental to the conduct of the business of such Person or to the ownership of its
properties which, in all such cases, were not incurred in connection with Indebtedness and
which do not in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person; (e) Liens
existing on or provided




 









 









11





for under the terms of agreements existing on the date of this Agreement; (f) Liens on
property at the time the Company or any of its Subsidiaries acquired the property or the
entity owning such property, including any acquisition by the property or the entity owning
such property, including any acquisition by means of a merger or consolidation with or into
the Company; provided, however, that any such Lien may not extend to any other property
owned by the Company or any of its Subsidiaries; (g) Liens securing obligations under a
Hedging Agreement so long as such Hedging Agreement is of the type customarily entered into
in connection with, and is entered into for the purpose of, limiting risk; (h) Liens on
accounts receivable or inventory to secure working capital or revolving credit indebtedness
incurred in the ordinary course of business; (i) Purchase Money Liens; (j) Liens securing
only Indebtedness of a wholly owned subsidiary of the Company to the Company or one or more
wholly owned subsidiaries of the Company; (k) Liens on property or shares of stock of
another Person at the time such other Person becomes a Subsidiary of such Person; provided,
however, that such Liens are not created, incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary of such Person; (l) Liens
created, assumed or existing in connection with a tax-free financing; (m) Liens resulting
from the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing
Indebtedness of the Company or any of its Subsidiaries; (n) legal or equitable encumbrances
deemed to exist by reason of negative pledges or the existence of any litigation or other
legal proceeding and any related lis pendens filing (excluding any attachment prior to
judgment, judgment lien or attachment lien in aid of execution on a judgment); (o) rights of
a common owner of any interest in property held by such Person; (p) Liens placed upon any
real property now owned or hereafter acquired by the Company or any of its Subsidiaries
securing Indebtedness in an amount up to 80% of the fair market value of such real property;
and (q) Liens to secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements), as a whole, or
in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (e)
through (l) and (p); provided, however, that (i) such new Lien shall be limited to all or
part of the same property that secured the original Lien (plus improvements on such
property) and (ii) the Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (e) through (l) and (p) at the
time the original Lien became a Permitted Lien under this Agreement and (B) an amount
necessary to pay any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement.




     “Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.




     “Principal Property” means any manufacturing plant or manufacturing facility, located
within the United States of America (other than its territories and possessions), owned or
leased by the Company or any Restricted Subsidiary, unless, in the opinion of the board of
directors of the Company, such plant, facility or property is not of material importance to
the total business conducted by the Company and its Restricted Subsidiaries as an entirety.









 




12



     “Purchase Money Lien” means a Lien on property securing Indebtedness incurred by the
Company or its Subsidiaries to provide funds for all or any portion of the cost of
acquiring, constructing, altering, expanding, improving or repairing such property or assets
used in connection with such property.




     “Register” has the meaning ascribed to it in Section 9.04(c).




     “Regulation U” shall mean Regulation U of the Board, as the same is from time to time
in effect, and all official rulings and interpretations thereunder or thereof.




     “Regulation X” shall mean Regulation X of the Board, as the same is from time to time
in effect, and all official rulings and interpretations thereunder or thereof.




     “Reimbursement
Agreement” means the Agreement for Letter of Credit,
dated as of May 23, 2006, between Citibank and the Company, as amended, modified or supplemented from
time to time.




     “Related Parties” means, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents and advisors of such Person and
such Person’s Affiliates.




     “Required Lenders” means, (a) at any time prior to the termination of the Commitments
pursuant to Article VII, Lenders having Total Exposures and unused Commitments representing
more than 50% of the aggregate Total Exposures and unused Commitments at such time, and (b)
for all purposes after the termination of the Commitments pursuant to Article VII, Lenders
having outstanding Loans and LC Exposures representing more than 50% of the aggregate
outstanding principal amount of Loans and LC Exposures.




     “Restricted Subsidiary” means at any time any Subsidiary of the Company (i)
substantially all the property of which is located, or substantially all of the business of
which is carried on, within the United States of America (other than its territories or
possessions) and (ii) which owns or leases a Principal Property or which, in the event of a
Sale/Leaseback Transaction, will own or lease a Principal Property.




     “Sale/Leaseback Transaction” means an arrangement relating to Principal Property owned
on the date of this Agreement or thereafter acquired whereby the Company or any of its
Restricted Subsidiaries transfers such Principal Property to a Person and the Company or any
of its Restricted Subsidiaries leases it from such Person.




     “SEC” means the Securities and Exchange Commission.




     “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board). Such reserve









 



13



percentages shall include those imposed pursuant to such Regulation D. Eurodollar
Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.




     “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in accordance
with GAAP, as well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of
a partnership, more than 50% of the general partnership interests are, as of such date,
owned by the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.




     “Subsidiary” means any subsidiary of the Company.




     “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.




     “Telerate Page” means the display designated as Page 3750 on the Dow Jones Markets
System (or such other page as may replace such page on such service for the purpose of
displaying the rates at which dollar deposits are offered by leading banks in the London
interbank deposit market).




     “Total Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Loans and its LC Exposure at such time.




     “Transactions” means each of the execution, delivery and performance by the Company of
this Agreement, the borrowing of Loans hereunder and the issuance and modification of the
Letter of Credit for the account of the Company hereunder.




     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference
to the Adjusted LIBO Rate or the Alternate Base Rate.




     “USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, supplemented,
amended and restated or otherwise modified from time to time.



     SECTION 1.02. Terms Generally.



     The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be









 



14



deemed to be followed by the phrase “without limitation”. The word “will” shall be construed
to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a)
any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s permitted successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



     SECTION 1.03. Accounting Terms; GAAP.



     Except as otherwise expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the
Company notifies the Administrative Agent that the Company requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative Agent notifies the
Company that the Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision is amended in accordance herewith.



ARTICLE II

THE CREDITS




     SECTION 2.01. Commitments.



     Subject to the terms and conditions set forth herein and without limiting each Lender’s
obligation to make Loans pursuant to Section 2.04(e), each Lender agrees to make Loans to the
Company from time to time during the Availability Period and to participate in the Letter of Credit
in an aggregate principal amount not exceeding the amount of such Lender’s Commitment; provided,
that after giving effect to each Credit Event (a) no Lender’s Total Exposure shall exceed such
Lender’s Commitment, and (b) the sum of the Total Exposures of all the Lenders shall not exceed the
sum of the Commitments of all Lenders. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Company may borrow, prepay and reborrow Loans and request the
issuance, renewal, extension and increase of the Letter of Credit.









 



15


     SECTION 2.02. Loans and Borrowings.



     (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders,
ratably in accordance with their respective Commitments. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several, and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.



     (b) Subject to Sections 2.04(e) and 2.12, each Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Company may request in accordance herewith and shall be in
dollars. Each Lender at its option may make any Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Company to repay such Loan in accordance with the terms of this
Agreement and shall not be inconsistent with the duty of such Lender under Section 2.17(a) to
minimize the amounts payable by the Company under Section 2.13 or 2.15.



     (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$10,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.04(e). Borrowings of more than one Type may be outstanding at the same time; provided
that there shall not at any time be more than a total of five outstanding Eurodollar Borrowings.



     SECTION 2.03. Requests for Borrowings.



     To request a Borrowing, except as otherwise provided with respect to Loans to be made pursuant
to Section 2.04(e), the Company shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of any ABR Borrowing,
not later than 11:00 a.m., New York City time, on the Business Day of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent at its office set forth in Section 9.01 of a
written Borrowing Request in a form approved by the Administrative Agent and signed by the Company.
Each such telephonic and written Borrowing Request shall specify the following information in
compliance with Section 2.02:




     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;









 



16



     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (v) the location and number of the Company’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.05.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Company shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.




     SECTION 2.04. The Letter of Credit.



     (a) General. Subject to the terms and conditions set forth herein, the Issuing Bank agrees to
issue and amend (including, without limitation, to increase or decrease the stated amount of the
Letter of Credit) at the request and for the account of the Company, a standby letter of credit
substantially in the form of Exhibit D or in such other form as may be reasonable acceptable to the
Issuing Bank and the Company (the “Letter of Credit”), at any time and from time to time from the
Effective Date until the date that is one Business Day prior to the Maturity Date. The Issuing
Bank shall not be under any obligation to issue the Letter of Credit if any order, judgment or
decree of any Governmental Authority or arbitrator binding upon the Issuing Bank shall by its terms
purport to enjoin or restrain the Issuing Bank from issuing the Letter of Credit, or any law, rule,
regulation or orders of any Governmental Authority applicable to the Issuing Bank or any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from,
the issuance of letters of credit generally or the Letter of Credit in particular or shall impose
upon the Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on
the date hereof, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense that
was not applicable on the date hereof and that the Issuing Bank in good faith deems material to it.



     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the
issuance of the Letter of Credit (or the amendment, renewal or extension of the Letter of Credit),
the Company shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (at least one Business Day in advance of the requested date of issuance,
amendment, renewal or extension) a Notice of LC Request requesting the issuance of the Letter of
Credit and specifying the requested date of issuance of the Letter of Credit (which shall be a
Business Day) and, as applicable, specifying the date of amendment, renewal or extension (which
shall be a Business Day), the date on which the Letter of Credit is to expire (which shall comply
with subsection (c) of this Section), the amount of the Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew
or extend the Letter of Credit. The Letter of Credit shall be issued,









 



17



amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of
the Letter of Credit the Company shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the aggregate LC Exposure shall not
exceed the aggregate Commitments, and (ii) the Total Exposures shall not exceed the total
Commitments. The Issuing Bank shall promptly (and in any event within one Business Day) notify the
Administrative Agent of each issuance, amendment, renewal, extension or expiry of the Letter of
Credit, and shall provide to the Administrative Agent such other information as the Administrative
Agent shall reasonably request as to the Letter of Credit.



     (c) Expiration Date. The Letter of Credit shall expire at or prior to the date that is one
Business Day prior to the Maturity Date.



     (d) Participations. By the issuance of the Letter of Credit (or an amendment to the Letter of
Credit increasing the amount thereof) and without any further action on the part of the Issuing
Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in the Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under the Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Company on the date due as provided in subsection (e) of this Section, or of any
reimbursement payment required to be refunded to the Company for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this subsection
in respect of the Letter of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of the Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.



     (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement, the Issuing Bank shall
promptly notify the Company by telephone, facsimile or other telecommunication of the date and
amount of such LC Disbursement. The Company shall reimburse such LC Disbursement, whether drawn
before, on or, to the extent in accordance with applicable law, after the expiration date of the
Letter of Credit, and payment of each such reimbursement obligation shall be made on demand;
provided that unless the Company shall have notified the Administrative Agent otherwise, the
Company’s obligations shall be financed with an ABR Borrowing made under this subsection (e) in an
equivalent amount and, to the extent so financed, the Company’s obligation to make such payment
shall be discharged and replaced by the resulting ABR Borrowing. If the Company fails to make such
payment when due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Company in respect thereof and such Lender’s Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the Company, and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the
Lenders. Each Lender agrees to fund its Applicable Percentage of such payment due from the Company
on (i) the Business Day on which demand therefore is made by the Issuing Bank, provided that
notice of such demand is given not later than 11:00 a.m. (New York time) on such Business Day,









 



18



or (ii) the first Business Day next succeeding such demand if notice of such demand is given
after such time. If and to the extent that any Lender shall not have made such amount available to
the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand by the Issuing
Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate for
its account or the account of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any Business Day, such
amount so paid in respect of principal shall constitute an ABR Loan made by such Lender on such
Business Day for purposes of this Agreement.



     (f) Certain Liabilities Relating to the Letter of Credit. None of the Administrative Agent,
the Lenders or the Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of the Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in Section 2.08(f)), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to the
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that, without limiting Section 2.08(f), the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Company to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived by the Company to
the extent permitted by applicable law) suffered by the Company that are caused by the Issuing
Bank’s failure to exercise care when determining whether drafts and other documents presented under
the Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented that appear on
their face to be in substantial compliance with the terms of the Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary
(other than a valid injunction issued by a court of competent jurisdiction), or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms
of the Letter of Credit.



     (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under the Letter of Credit.
The Issuing Bank shall promptly notify the Administrative Agent and the Company by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made or will
make an LC Disbursement thereunder; provided that any failure to give or delay in giving such
notice shall not relieve the Company of its obligation to reimburse the Issuing Bank and the
Lenders with respect to any such LC Disbursement.



     (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the
Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Company reimburses such LC









 



19



Disbursement, at the rate per annum then applicable to ABR Loans; provided that, if the
Company fails to reimburse such LC Disbursement when due pursuant to subsection (e) of this
Section, then Section 2.11(d) shall apply. Interest accrued pursuant to this subsection shall be
for the account of the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to subsection (e) of this Section to reimburse the Issuing Bank shall be for
the account of such Lender to the extent of such payment.



     SECTION 2.05. Funding of Borrowings.



     (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders; except as provided otherwise
with respect to ABR Loans made pursuant to Section 2.04(e), such transfers shall be made by (x)
12:00 Noon, New York City time in the case of Borrowings other than ABR Borrowings and (y) 2:00
p.m., New York City time in the case of ABR Borrowings on the date such Loan is made. The
Administrative Agent will make such amounts available to the Company by promptly crediting the
amounts so received, in like funds, to an account of the Company designated by the Company in the
applicable Borrowing Request; provided that ABR Loans made to refinance the reimbursement of an LC
Disbursement as provided in Section 2.04(e) shall be remitted by the Administrative Agent to the
Issuing Bank.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed time of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with subsection (a) of this Section and may,
in reliance upon such assumption, make available to the Company a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Company severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Company to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Company, the interest rate applicable to such Loan. If
such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.



     SECTION 2.06. Interest Elections.



     (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Company may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Company may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate Borrowing.









 



20


     (b) To make an election pursuant to this Section, the Company shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Company were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Company.



     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Company shall be deemed to have selected an Interest Period of one
month’s duration.




     (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



     (e) If the Company fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Company, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.



     SECTION 2.07. Termination of Commitments; Reduction of Commitments.



     (a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.














 







21




     (b) The Company may at any time terminate, or from time to time reduce, the aggregate
amount of the Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000, (ii) the Company
shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment
of the Loans in accordance with Section 2.09, the sum of the Total Exposures of all the Lenders
would exceed the total Commitments and (iii) the Company shall satisfy all its obligations in
respect under Sections 2.14 and 9.03(d) in respect of such termination or reduction and any
concurrent repayment.



     (c) The Company shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under subsection (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each reduction of the Commitments shall be made ratably among the
Lenders based on their respective Commitments.



     SECTION 2.08. Repayment of Loans; Evidence of Debt; Obligations Absolute.



     (a) The Company hereby unconditionally promises to pay to the Paying Agent for application in
accordance with Section 2.16 the outstanding principal amount of each Loan on the Maturity Date.



     (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Company to such Lender resulting from each Loan made by such
Lender to the Company, including the amounts of principal and interest payable and paid to such
Lender by the Company from time to time hereunder.



     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Company
to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.



     (d) The entries made in the accounts maintained pursuant to subsection (b) or (c) of this
Section shall, absent manifest error, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect the obligation of the
Company to repay the Loans in accordance with the terms of this Agreement.



     (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Company shall prepare, execute and deliver to such Lender a nonnegotiable promissory
note substantially in the form attached as Exhibit B (a “Note”) payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its permitted registered assigns).
Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more Notes









 



22

payable to the order of the payee named therein (or, if such Note is a registered Note, to
such payee and its permitted registered assigns).




     (f) The Company’s obligation to repay the Loans, to reimburse LC Disbursements and to make the
other payments provided herein shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of the Letter of Credit
or this Agreement, or any term or provision therein, (ii) the existence of any claim, set-off,
defense or other right that the Company, or any Affiliate of the Company may have at any time
against the beneficiary or any transferee of the Letter of Credit (or any Persons or entities for
whom such beneficiary or transferee may be acting), the Issuing Bank or any other Person, whether
in connection with this Agreement, the transactions contemplated herein or any unrelated
transaction; (iii) without limiting Section 2.04(f), any draft, demand certificate or any other
document presented under the Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iv) payment by the
Issuing Bank under the Letter of Credit against presentation of a draft or other document that does
not comply with the terms of the Letter of Credit, (v) the surrender or impairment of any security
for the performance or observance of any of the terms of any of the Loan Documents; (vi) any
non-application or misapplication by the beneficiary the Letter of Credit of the proceeds of any
drawing under the Letter of Credit; (vii) the fact that a Default shall have occurred and be
continuing; or (viii) any other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Company’s obligations hereunder.



     SECTION 2.09. Prepayment of Loans.



     (a) The Company shall have the right at any time and from time to time to prepay any Borrowing
made by it in whole or in part, subject to prior notice in accordance with subsection (b) of this
Section.



     (b) The Company shall notify the Administrative Agent by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of prepayment and (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date
of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid. Promptly following receipt of
any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders and the
Paying Agent of the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11.









 



23


     SECTION 2.10. Fees.



     The Company agrees to pay to the Paying Agent for application in accordance with Section 2.16
a facility fee (the “Facility Fee”), payable in such amounts and at the times specified in the Fee
Letter. The Facility Fee shall be paid on the dates due in immediately available funds. Absent
manifest error, once paid, the Facility Fee shall not be refundable under any circumstances.



     SECTION 2.11. Interest.



     (a) The Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal to
the Alternate Base Rate.



     (b) The Loans comprising each Eurodollar Borrowing shall bear interest at a rate per annum
equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing.



     (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Company hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided above or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided above.



     (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan; provided that (i) interest accrued pursuant to subsection (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment,
(iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion and (iv) all accrued interest shall be payable upon termination of the Commitments.



     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.



     SECTION 2.12. Alternate Rate of Interest.



     If prior to the commencement of any Interest Period for a Eurodollar Borrowing:



     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or









 



24


     (b) the Administrative Agent is advised by the Required Lenders that because of a change in
circumstances affecting the eurodollar market generally the Adjusted LIBO Rate for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining
their Loans included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the
Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Borrowing to, or continuation of any
Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.




     SECTION 2.13. Increased Costs. Subject to Section 2.17,



     (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or




     (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or the Letter of
Credit or participations therein;


and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing
Bank in an amount that such Lender or the Issuing Bank deems to be material of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost of such Lender or the Issuing Bank in an amount that such Lender or the Issuing
Bank deems to be material of participating in, issuing or maintaining the Letter of Credit or
reduce the amount of any sum received or receivable by such Lender or the Issuing bank hereunder
(whether of principal, interest or otherwise), then the Company will pay to the Paying Agent for
distribution to the Administrative Agent, other than any increase in costs resulting from (A)
Excluded Taxes or (B) Indemnified Taxes or Other Taxes to which Section 2.15 is applicable, then
the Company will pay to such Lender or the Issuing Bank, as the case may be, for the account of
such Lender or the Issuing Bank in accordance with Section 2.16 such additional amount or amounts
as will compensate such Lender or the Issuing Bank for such additional costs incurred or reduction
suffered.




     (b) If any Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or the
Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made or the Letter of Credit to a level below
that which such Lender or the Issuing Bank or such Lender’s the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration
such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing









 



25

Bank’s holding company with respect to capital adequacy), then from time to time the Company will
pay to the Paying Agent for distribution to the Administrative Agent for the account of such Lender
or the Issuing Bank in accordance with Section 2.16 such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
for any such reduction suffered.




     (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section, and explaining in reasonable detail the
method by which such amount or amounts shall have been determined, shall be delivered to the
Company and shall be conclusive absent manifest error; provided that no Lender nor the Issuing Bank
shall be required to deliver information pursuant to this Section relating to its business, other
than any such information that is available to the Company on a nonconfidential basis prior to the
date of such certificate. The Company shall pay to the Paying Agent the amount shown as due on any
such certificate within 10 days after receipt thereof.



     (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant
to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand
such compensation; provided that the Company shall not be required to compensate a Lender or
Issuing Bank pursuant to this Section for any increased costs or reductions unless the Lender or
the Issuing Bank gives notice to the Company to compensate such Lender or the Issuing Bank pursuant
to this Section within 180 days after the date such Lender or the Issuing Bank knows an event has
occurred pursuant to which such Lender or the Issuing Bank will seek such compensation.



     SECTION 2.14. Break Funding Payments.



     In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date
specified in any notice delivered pursuant hereto, or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto as a result of a request by
the Company pursuant to Section 2.17, then, in any such event, the Company shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar
Loan, the loss to any Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount of interest that
such Lender would pay for a deposit equal to the principal amount of such Loan for the period from
the date of such payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the Adjusted LIBO Rate for
such Interest Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal amount for such
period at the interest rate that would be bid by such Lender (or an affiliate of such Lender) for
dollar deposits from other banks in the eurodollar market at the commencement
of such period. A certificate of any Lender setting forth any amount or amounts that such
Lender









 



26

is entitled to receive pursuant to this Section and explaining in reasonable detail the
method by which such amount or amounts shall have been determined shall be delivered to the Company
and shall be conclusive absent manifest error; provided that no Lender or Issuing Bank shall be
required to deliver information pursuant to this Section relating to its business, other than any
such information that is available to the Company on a nonconfidential basis prior to the date of
such certificate. The Company shall pay the amount shown as due on any such certificate to the
Paying Agent for distribution to the Administrative Agent for the account of such Lender in
accordance with Section 2.16 within 10 days after receipt of such certificate.




     SECTION 2.15. Taxes.



     (a) Any and all payments by or on account of any obligation of the Company hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Company shall be required by applicable law to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, the Paying Agent, any Lender or the Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the Company shall make such deductions and (iii) the Company shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.



     (b) In addition, the Company shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.



     (c) The Company shall indemnify the Administrative Agent, the Paying Agent, each Lender and
the Issuing Bank, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the Administrative Agent, the Paying
Agent, such Lender or the Issuing Bank, as the case may be, on or with respect to any payment by or
an account of any obligation of the Company hereunder and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Company by a Lender or
the Issuing Bank, or by the Administrative Agent or the Paying Agent, on its own behalf or on
behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error. Notwithstanding
the foregoing, the Company shall have no obligation to indemnify the Administrative Agent, the
Paying Agent, any Lender or the Issuing Bank for any interest, penalties or expenses described
above arising from the gross negligence or willful misconduct of the Administrative Agent, the
Paying Agent, such Lender or the Issuing Bank, as the case may be, in taking any action it was
required by applicable law to take including, but not limited to, filing any tax return or report
in a timely manner.



     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Company to a Governmental Authority, the Company shall deliver to the Administrative Agent (with a
copy to the Paying Agent) the original or a certified copy of a receipt issued by such









 



27

Governmental Authority evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the Administrative Agent.




     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Company is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall, upon request of the
Company, deliver to the Company (with a copy to the Administrative Agent and the Paying Agent), at
the time or times prescribed by applicable law or reasonably requested by the Company, such
properly completed and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.



     (f) If the Administrative Agent, Paying Agent, the Issuing Bank or any Lender determines that
it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Company or with respect to which the Company has paid additional amounts pursuant to this Section
2.15, it shall pay over such refund to the Company (but only to the extent of indemnity payments
made, or additional amounts paid, by the Company under this Section 2.15 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent, Paying Agent, The Issuing Bank or such Lender and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund); provided, that the
Company, upon the request of the Administrative Agent, the Paying Agent, the Issuing Bank or such
Lender, agrees to repay the amount paid over to the Company (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative Agent, the Paying
Agent, the Issuing Bank or such Lender in the event the Administrative Agent, the Paying Agent, the
Issuing Bank or such Lender is required to repay such refund to such Governmental Authority. This
Section shall not be construed to require the Administrative Agent, the Paying Agent, the Issuing
Bank or any Lender to make available its tax returns (or any other information relating to its
taxes which it deems confidential) to the Company or any other Person.



     SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.



     (a) The Company shall make each payment required to be made by it hereunder (whether of
principal, interest, fees, reimbursement of LC Disbursements or of any amounts under Section 2.13,
2.14 or 2.15, or otherwise) prior to 12:00 Noon, New York City time, on the date when due in
immediately available funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Paying Agent to be credited to the Paying Agent’s Account. All payments made
by the Company to the Paying Agent as provided herein or in any Note shall be deemed received by
the Lenders or the Issuing Bank for all purposes as between the Lenders or the Issuing Bank and the
Company. The Administrative Agent shall notify the Paying Agent in advance of each such expected
payment. The Paying Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal, interest or Facility Fees to the Administrative Agent or, with respect to
payments to be made to the Issuing Bank, the Issuing Bank, and the Administrative Agent or the
Issuing Bank (as the case may be) will promptly after any such payment cause to be distributed like
funds relating to the payment of principal or interest or Facility Fees (other than amounts payable









 



28

pursuant to Section 2.04(f), 2.13, 2.14, 2.15 or 9.03(a), (b) or (c)) (according to the
Lenders’ respective Commitments) to the Lenders for the account of their respective lending
offices, and like funds relating to the payment of any other amount payable to any Lender to the
Administrative Agent, and the Administrative Agent then shall cause like funds to be distributed to
such Lender for the account of its applicable lending office, in each case to be applied in
accordance with the terms of this Agreement or any Note. The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable for the period of such
extension. All payments hereunder shall be made in dollars.




     (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of interest and fees then
due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements then due to such parties.



     (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or participations in
unreimbursed LC Disbursements resulting in such Lender receiving payment of a greater proportion of
the aggregate amount of its Loans or participations in unreimbursed LC Disbursements and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Loans or
participations in unreimbursed LC Disbursements of other Lenders to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans or participations
in unreimbursed LC Disbursements; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this subsection shall not be construed to apply to any payment made by the
Company pursuant to and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Company or any Subsidiary or Affiliate
thereof (as to which the provisions of this subsection shall apply). The Company consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against the Company
rights of set-off and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Company in the amount of such participation.



     (d) Unless the Paying Agent shall have received notice from the Company prior to the date on
which any payment is due to the Paying Agent for the account of the Lenders or the Issuing Bank
that the Company will not make such payment, the Paying Agent may assume that the Company has made
such payment on such date in accordance herewith and may, in reliance









 



29

upon such assumption, distribute to the Administrative Agent, whereupon the Administrative
Agent shall distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if the Company has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the Paying Agent forthwith on demand
the amount so distributed to such Lender or the Issuing Bank with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding the date of payment
to the Paying Agent, at the Federal Funds Effective Rate.




     (e) If any Lender or the Issuing Bank shall fail to make any payment required to be made by it
pursuant to Section 2.04(d), 2.05(b) or 2.16(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender or the Issuing Bank to satisfy such
Lender or the Issuing Bank’s obligations under such Sections until all such unsatisfied obligations
are fully paid.



     SECTION 2.17. Mitigation Obligations; Replacement of Lenders.



     (a) If any Lender requests compensation under Section 2.13, or if the Company is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.13 or 2.15, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.



     (b) If any Lender requests compensation under Section 2.13, or if the Company is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.15, or if any Lender defaults in its obligation to fund Loans hereunder, or
if in connection with any proposed amendment, modification, waiver or consent, the consent of the
Required Lenders has been obtained but the consent of a Lender the consent of which is required
shall not have been obtained, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) the Company shall have received the prior written consent of the Administrative Agent (and
if a Commitment is being assigned, the Issuing Bank), which consent shall not unreasonably be
withheld or delayed, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Company (in the case of
all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such









 



30

compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation cease to apply.




ARTICLE III

REPRESENTATIONS AND WARRANTIES




     The Company represents and warrants to each of the Lenders and the Issuing Bank as follows:



     SECTION 3.01. Organization; Powers.



     The Company is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry on its business as
now conducted and is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.02. Authorization; Enforceability.



     The Transactions are within the Company’s corporate powers and have been duly authorized by
all necessary corporate action. This Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors’ rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.



     SECTION 3.03. Governmental Approvals; No Conflicts.



     The Transactions (a) do not require any consent or approval of, registration or filing with,
or any other action by, any Governmental Authority, except such as have been obtained or made and
are in full force and effect, except (i) those required in the ordinary course of business of the
Company in connection with the performance by the Company of its obligations of the covenants
hereunder, other filings under securities laws, and filings, registrations consents or approvals in
each case not required to be made or obtained by the date hereof, and (ii) the filing by the
Company of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby,
which filing will be made promptly following the execution and delivery of this Agreement, (b) will
not violate any applicable law or regulation or the charter, by-laws or other organizational
documents of the Company or any order of any Governmental Authority, (c) will not result in a
material violation of or default under any indenture or other material agreement or instrument
binding upon the Company or any of the Subsidiaries or their assets, or give rise to a right
thereunder to require any payment to be made by the Company or any of the Subsidiaries, and (d)
will not result in the creation or imposition of any material Liens on any material assets of the
Company or any of the Subsidiaries.




 









 








31


     SECTION 3.04. Financial Condition.



     The
Company has heretofore furnished to the Lenders (a) its consolidated balance sheet and
statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended
December 31, 2005, reported on by independent public accountants
and (b) its unaudited interim consolidated financial statements for
the quarterly period ended March 31, 2006. Such financial statements
present fairly, in all material respects, the consolidated financial
position of the Company and its Subsidiaries as of the dates thereof and results of
operations and cash flows of the Company and its Subsidiaries for the
periods covered thereby (subject to normal year-end audit adjustments
with respect to the unaudited interim consolidated financial
statements) in accordance with GAAP.



     SECTION 3.05. Disclosure.



     Each of the reports required to be filed by the Company under Section 13(a) of the Securities
Exchange Act of 1934 on or prior to the date hereof has been filed and, as of the respective dates
thereof and the date hereof, such reports did not contain and do not contain an untrue statement of
a material fact and did not omit and do not omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading.



     SECTION 3.06. Federal Reserve Regulations.



     (a) Neither the Company nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
Margin Stock.



     (b) No part of the proceeds of the Loans has been or will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a
violation of the provisions of the Regulations of the Board, including, without limitation,
Regulation U or X thereof. Not more than 25% of the assets subject to the restrictions of Section
6.01 and 6.02, valued in accordance with Regulation U, will at any time consist of Margin Stock.



     SECTION 3.07. Investment Company Status.



     Neither the Company nor any of the Subsidiaries is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940.



ARTICLE IV

CONDITIONS




     SECTION 4.01. Conditions to Effective Date.



     The obligations of the Lenders to make Loans to the Company and of the Issuing Bank to issue
the Letter of Credit for the account of the Company shall not become effective until the date on
which each of the following conditions are satisfied (or waived in accordance with Section 9.02):



     (a) The Administrative Agent shall have received at least one executed counterpart of this
Agreement from the Company, each Agent, the Issuing Bank and each Lender, and arrangements
satisfactory to the Administrative Agent shall have been made for the delivery of









 



32



additional
executed counterparts, sufficient in number for distribution to the Agents, the Issuing Bank, the
Lenders and the Company, together with all Exhibits thereto;



     (b) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent, the Issuing Bank and the Lenders and dated the Effective Date) of (i) L.E.
Stellato, Vice President, General Counsel and Secretary of the
Company, in a form reasonably satisfactory to the Administrative
Agent and (i) Jones Day, in a form reasonably satisfactory to the Administrative Agent;



     (c) The Administrative Agent shall have received documents and certificates relating to the
organization, existence and good standing of the Company, the authorization of the Transactions,
the incumbency of the persons executing this Agreement on behalf of the Company, all in form and
substance satisfactory to the Administrative Agent;



     (d) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Company, confirming as of
the Effective Date, that (i) the representations and warranties of the Company set forth in Article
III of this Agreement are true and correct in all material respects on and as of such date and (ii)
no Default has occurred and is continuing; and



     (e) The Administrative Agent and each Lender (and its Affiliates) shall have received all fees
and other amounts due and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid
by the Company hereunder.



     SECTION 4.02. Condition to Each Credit Event.



     The obligation of each Lender to make a Loan to the Company on the occasion of any Borrowing
(other than a Borrowing made to reimburse the Issuing Bank for any LC Disbursement as provided in
Sections 2.04(d) and (e)), and the obligation of the Issuing Bank to issue, renew, extend or
increase the amount of the Letter of Credit, is subject to the satisfaction of the condition that,
at the time of and immediately after giving effect to such Credit Event, no Event of Default shall
have occurred and be continuing.


Each Credit Event shall be deemed to constitute a representation and warranty by the Company on the
date thereof as to the satisfaction of the condition described in this Section.




ARTICLE V

AFFIRMATIVE COVENANTS




     Until the Commitments have expired or been terminated, the principal of and interest on each
Loan and all fees payable hereunder shall have been paid in full, and the Letter of Credit shall
have expired or terminated and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that:



     SECTION 5.01. Financial Statements; and Other Information.



     The Company will furnish to each Lender:









 



33



     (a) within 90 days after the end of each fiscal year of the Company, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by independent public
accountants of recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Company and the
Subsidiaries on a consolidated basis in accordance with GAAP;




     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, its consolidated balance sheet and related statements of
operations and cash flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance sheet, as of the end
of) the previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the
Company and the Subsidiaries on a consolidated basis in accordance with GAAP, subject to
normal year-end audit adjustments and the absence of footnotes;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Company certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto;




     (d) promptly after the same become publicly available, copies of all reports on Forms
10-K, 10-Q and 8-K (or any substitute or successor forms) filed by the Company with the SEC,
or any Governmental Authority succeeding to any or all of the functions of said Commission,
or distributed by the Company to its shareholders generally, as the case may be;




     (e) promptly following a request therefor, all documentation and other information that
any Lender reasonably requests as necessary in order for it to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA Patriot Act; and




     (f) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Company or any Material
Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or
any Lender may reasonably request.




     Information required to be delivered pursuant to this Section and clause (ii) of
Section 5.02 shall be deemed to have been delivered if such information, or one or more
annual or quarterly reports containing such information, shall have been (i) posted by the
Administrative Agent on an IntraLinks or similar site to which the Lenders have been
granted access or shall be available on the website of the SEC at http://www.sec.gov and, in
either case, a confirming electronic correspondence shall have been delivered or









 



34



caused to
be delivered to the Lenders providing notice of such posting or availability; provided that
the Company shall deliver paper copies of such information to any Lender that requests such
delivery, or (ii) delivered to Citibank pursuant to the Reimbursement Agreement.
Information required to be delivered pursuant to this Section may also be delivered by
electronic communications pursuant to procedures approved by the Administrative Agent.



     SECTION 5.02. Notices of Material Events.



     The Company will furnish to the Administrative Agent and each Lender prompt written notice of
the occurrence of any Default promptly after a Financial Officer becomes aware thereof.



     Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Company setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.



     SECTION 5.03. Existence; Conduct of Business.



     The Company will, and will cause each of the Material Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its legal existence and
the rights, licenses, permits, privileges and franchises material to the conduct of its business
except where the failure to do so could not reasonably be expected to have a Material Adverse
Effect; provided that the foregoing shall not prohibit any merger or consolidation of the Company
permitted under Section 6.02 or any merger, consolidation, liquidation or dissolution of a
Subsidiary that is not otherwise prohibited by the terms of this Agreement.



ARTICLE VI

NEGATIVE COVENANTS




     Until the Commitments have expired or been terminated, the principal of and interest on each
Loan and all fees payable hereunder shall have been paid in full, and the Letter of Credit shall
have expired or terminated and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that:



     SECTION 6.01. Equal and Ratable Security.



     The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or permit to exist any Lien on any Principal Property, or shares of capital
stock of any Restricted Subsidiary, whether owned on the date of this Agreement or thereafter
acquired, securing any obligation unless the Company contemporaneously secures the Company’s
obligations under this Agreement equally and ratably with (or prior to) such obligation. The
preceding sentence shall not require the Company to secure the Company’s obligations under this
Agreement if the Lien consists of the following:



     (i) Permitted Liens; or









 



35


     (ii) Liens other than those permitted in Section 6.01(i) above, provided that the aggregate
amount of all obligations secured by Liens permitted by this Section 6.01(ii) shall not exceed 15%
of Consolidated Net Tangible Assets.



     SECTION 6.02. Fundamental Changes.



     The Company will not merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in
one transaction or in a series of transactions and including by means of any merger or sale of
capital stock or otherwise) all or substantially all of its assets (whether now owned or hereafter
acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing, any Person may merge with
or into or consolidate with the Company if the Company is the surviving Person.



     SECTION 6.03. Limitation on Sale/Leaseback Transactions.



     The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into
any Sale/Leaseback Transaction with respect to any Principal Property unless (i) the Company or
such Restricted Subsidiary would be entitled to create a Lien on such Principal Property securing
Indebtedness in an amount equal to the Attributable Indebtedness with respect to such
Sale/Leaseback Transaction without securing the Company’s obligations under this Agreement pursuant
to Section 6.01 or (ii) the Company, within six months from the effective date of such
Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement (excluding
retirements of any Indebtedness ranking pari passu with Company’s obligations under this Agreement
as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions
or by payment at maturity) of any Indebtedness ranking pari passu with the Company’s obligations
under this Agreement an amount equal to the Attributable Indebtedness in respect of such
Sale/Leaseback Transaction; provided that the foregoing will not prevent the Company or any
Restricted Subsidiary from (x) entering into any Sale/Leaseback Transaction involving a lease with
a term of less than three years or (y) entering into any Sale/Leaseback Transaction between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries.



ARTICLE VII

EVENTS OF DEFAULT




     If any of the following events (“Events of Default”) shall occur:




     (a) the Company shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (b) the Company shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under
this Agreement, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of five Business Days;









 



36



     (c) any representation or warranty made or deemed made by or on behalf of the Company
or any Subsidiary in or in connection with this Agreement or any amendment or modification
hereof or waiver hereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any amendment or
modification hereof or waiver hereunder, shall prove to have been incorrect in any material
respect when made or deemed made;




     (d) the Company shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.03 (but only with respect to the Company’s existence) or in Article
VI;




     (e) the Company shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 60 days after written
notice thereof from the Administrative Agent to the Company (which notice will be given at
the request of any Lender);




     (f) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Company or
any Material Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered; or




     (g) the Company or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any Material Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;


then, and in every such event (other than an event with respect to the Company described in clause
(f) or (g) of this Article), and at any time thereafter during the continuance of such event, the
Paying Agent (in the case of an Event of Default described in clause (a) or (b) above) shall
promptly provide notice of such Event of Default to the Administrative Agent, and the
Administrative Agent, upon receipt of such notice from the Paying Agent, and in the case of any
other Event of Default, shall, at the request of the Required Lenders, by notice to the Company,
take either or both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the








 



37


Loans
then outstanding to be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Company hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company; and in case of any event with respect to the Company described in
clause (f) or (g) of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all fees and other
obligations of the Company hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Company.




ARTICLE VIII

THE ADMINISTRATIVE AGENT AND THE PAYING AGENT




     Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
and the Paying Agent as its agent and authorizes the Administrative Agent and the Paying Agent to
take such actions on its behalf and to exercise such powers as are delegated to the Administrative
Agent or the Paying Agent, as applicable, by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.



     Any bank serving as the Administrative Agent or the Paying Agent hereunder shall have the same
rights and powers in its capacity as a Lender or the Issuing Bank as any other Lender and may
exercise the same as though it were not the Administrative Agent or the Paying Agent, as
applicable, and such bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any of its Subsidiaries thereof or other
Affiliate thereof as if it were not the Administrative Agent or the Paying Agent, as applicable,
hereunder.



     Neither Agent shall have any duties or obligations except those expressly set forth for such
Agent herein. Without limiting the generality of the foregoing, (a) neither Agent shall be subject
to any fiduciary or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby that
such Agent is required to exercise in writing as directed by the Required Lenders, and (c) except
as expressly set forth herein, neither Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Company or any of its
Subsidiaries that is communicated to or obtained by the bank serving as such Agent or any of its
Affiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section 9.02) to the
extent required by Section 9.02 or in the absence of its own gross negligence or willful
misconduct. Neither Agent shall be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this Agreement, (ii)
the contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of









 



38



this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than, in the case of the
Administrative Agent, to confirm receipt of items expressly required to be delivered to the
Administrative Agent.



     Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also
may rely upon any statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with
legal counsel (who may be counsel for the Company), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



     The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more subagents appointed by the Administrative Agent. The Administrative
Agent and any such subagent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding subsections
shall apply to any such subagent and to the Related Parties of the Administrative Agent and any
such subagent, and shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Administrative Agent.



     Subject to the appointment and acceptance of an appropriate successor Agent as provided in
this subsection, each Agent may resign at any time by notifying the Lenders, the Issuing Bank and
the Company. Upon any such resignation, the Required Lenders shall have the right, with the
consent of the Company (not to be unreasonably withheld or delayed), to appoint a successor, which
must be a bank or trust company with an office in New York, New York, or an Affiliate of any such
bank. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may, on behalf of the Lenders and in consultation with the Company, appoint
a successor Agent, which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as an Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Agent shall be the same as those, if
any, payable to its predecessor unless otherwise agreed between the Company and such successor.
After any Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as such Agent.



     Each Lender acknowledges that it has, independently and without reliance upon any Agent, the
Issuing Bank or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent,
the Issuing Bank or any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or not taking









 



39



action
under or based upon this Agreement, any related agreement or any document furnished hereunder or
thereunder.



ARTICLE IX

MISCELLANEOUS




     SECTION 9.01. Notices.



     Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by telecopy, as follows:



     (a) if to the Company, to 101 Prospect Avenue, N.W., Cleveland, OH 44115, Telecopy: (216)
566-2947, E-mail: sphennessy@sherwin.com, Attention: Senior Vice President-Finance and Chief
Financial Officer with a copy to the General Counsel, Telecopy No. (216) 566-1708, E-mail:
lestellato@sherwin.com;



     (b) if to the Administrative Agent, to Two Penns Way, Suite 110, New Castle, Delaware 19720,
Telecopy: (212) 994-0847, Email: dennis1.banfield@citigroup.com, Attention: Dennis Banfield.



     (c) if to the Paying Agent, to 4 New York Plaza, New York, NY 10004-2413, Attention:
Institutional Trust Service, Telecopy: (212) 623-6274, Email: julius.zamora@jpmchase.com;



     (d) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire (a copy of which the Administrative Agent shall provide to the
Company, unless such notice or communication was delivered by the Company); and



     (e) if to the Issuing Bank, to Two Penns Way, Suite 110, New Castle, Delaware 19720, Telecopy:
(212) 994-0847, Email: dennis1.banfield@citigroup.com, Attention: Dennis Banfield.


Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt.




     SECTION 9.02. Waivers; Amendments.



     (a) No failure or delay by any Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Agents, the Issuing Bank and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the Company therefrom
shall in any event be effective unless the same shall be permitted by this Section, and then such
waiver or consent shall be effective only in the specific instance and for the purpose









 



40



for which
given. Without limiting the generality of the foregoing, the making of a Loan shall not be
construed as a waiver of any Default, regardless of whether any Agent, the Issuing Bank or any
Lender may have had notice or knowledge of such Default at the time.



     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Company and the Required
Lenders or by the Company and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby and the Issuing Bank, (iii) postpone the scheduled date of payment of
the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees or any
other amount payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.16(b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender, or (v) change
any of the provisions of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder without the written
consent of each Lender; provided further that (A) no such agreement shall amend, modify or
otherwise affect the rights or duties of any Agent hereunder without the prior written consent of
such Agent and (B) no amendment, modification or waiver of this Agreement or any provision hereof
that would alter the rights or duties of the Issuing Bank hereunder shall be effective without the
written consent of the Issuing Bank.



     SECTION 9.03. Expenses; Indemnity; Damage Waiver.



     (a) The Company agrees to pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated) and (ii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender,
including the reasonable fees, charges and disbursements of any counsel for the Administrative
Agent, the Issuing Bank or any Lender, in connection with the enforcement or protection of its
rights in connection with this Agreement, including its rights under this Section, or in connection
with the Loans made hereunder and the Letter of Credit, including in connection with any workout,
restructuring or negotiations in respect thereof.



     (b) The Company agrees to indemnify each Agent, the Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated hereby, the performance by the parties
hereto of









 



41



their respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) the representation or warranty set forth in Section
3.05 of this Agreement being incorrect in any material respect when made or deemed made under
this Agreement, (iii) any Loan or the Letter of Credit or the use of the proceeds thereof
(including any refusal by the Issuing Bank to honor a demand for payment under the Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
the Letter of Credit), (iv) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental
Liability related in any way to the Company or any of its Subsidiaries, or (v) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or its Affiliates or from a breach of this
Agreement by such Indemnitee.



     (c) To the extent that the Company fails to pay any amount required to be paid by it to the
Administrative Agent or the Issuing Bank under subsection (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent or the Issuing Bank, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent or the Issuing Bank in its capacity as such.



     (d) The Company acknowledges and agrees that Citibank, CUSA and their respective affiliates
(each, an “indemnified party”) may enter into certain transactions in order to mitigate credit risk
arising out of the financing contemplated by this Agreement. The Company agrees to indemnify each
indemnified party against, in each case subject to and in accordance with the Fee Letter, losses,
costs or expenses that such indemnified party may sustain or incur as a consequence of (i) any
reduction or termination of the Commitments prior to the Maturity Date, (ii) the assignment of any
Indemnified Party’s Commitment or Total Exposure as a result of a request by the Company pursuant
to Section 2.17 or (iii) the occurrence of any successor event (as defined below), including
without limitation any such losses, costs or expenses sustained or incurred as a consequence of any
event described in clause (i), (ii) or (iii) above in connection with (A) the termination or
adjustment of, or (B) designation of a “Successor” (as defined in the 2003 ISDA Credit Derivatives
Definitions) to the Company under, or (C) any other modification to, any such transaction entered
into by an indemnified party in order to mitigate credit risk arising out of the financing
contemplated by this Agreement. For purposes of this Section 9.03(d), “successor event” shall mean
any event, such as a merger, consolidation, amalgamation, transfer of assets or liabilities,
demerger, spin-off or other similar event, whereby another entity shall succeed to the obligations
of the Company, whether by operation of law or pursuant to any agreement.



     (e) To the extent permitted by applicable law, no party hereto shall assert, and each party
hereto hereby waives, any claim against any other party, on any theory of liability, for special,









 



42



consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan, the Letter of Credit or the use of the proceeds thereof.



     (f) All amounts due under this Section shall be payable promptly after written demand
therefore accompanied by the appropriate invoice or other detail supporting such amount.



     SECTION 9.04. Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that (i) the
Company may not assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer by the Company
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer
rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby and, to the extent expressly contemplated
hereby, Participants and the Related Parties of the Agents, the Issuing Bank and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.



     (b) Any Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans and
participations in LC Disbursements at the time owing to it); provided that (i) each of the Company
(except that (A) in the case of an assignment to a Lender or an Affiliate of a Lender or (B) upon
the occurrence and during the continuance of an Event of Default or an “Event of Default” under,
and as defined in, the Reimbursement Agreement (without regard to the proviso at the end of Section
15 of the Reimbursement Agreement), the consent of the Company shall not be required), the
Administrative Agent and in the case of any assignment of a Commitment, the Issuing Bank must give
its prior written consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment
of the entire remaining amount of the assigning Lender’s Commitment, the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Company and the Administrative Agent otherwise consent
or unless an Event of Default shall have occurred and be continuing, (iii) each partial assignment
shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement, (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together (except in the case of an
assignment by a Lender to one of its Affiliates or an assignment as a result of any of the events
contemplated by Section 2.17) with a processing and recordation fee of $3,500, and (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent and the Paying
Agent an Administrative Questionnaire. Upon acceptance and recording pursuant to subsection (d) of
this Section, from and after the effective date specified in each Assignment and Acceptance, the
assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and
the









 



43



assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (e) of this Section.



     (c) The Administrative Agent, acting for this purpose as an agent of the Company, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive absent manifest error, and the Company, each Agent, the Lenders and the Issuing Bank
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Company, the Issuing Bank, the Paying Agent and
any Lender, at any reasonable time and from time to time upon reasonable prior notice.



     (d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in subsection
(b) of this Section and any written consent to such assignment required by subsection (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this subsection.



     (e) Any Lender may, without the consent of any of the Company, the Administrative Agent or the
Issuing Bank, sell participations to one or more banks or other entities (each a “Participant”) in
all or a portion of such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations and (iii) the Company, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to subsection (f) of this Section, the Company agrees that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14
and 2.15 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also









 



44



shall be entitled to the benefits of Section 9.09 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.15(f) as though it were a Lender.



     (f) A Participant shall not be entitled to receive any greater payment under Section 2.13 or
2.15 than the applicable Lender would have been entitled to receive with respect to the
participations sold to such Participant, unless the sale of the participations to such Participant
is made with the Company’s prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.15 unless the Company is
notified of the participations sold to such Participant and such Participant agrees, for the
benefit of the Company, to comply with Section 2.15(f) as though it were a Lender.



     (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.



     SECTION 9.05. Survival.



     All covenants, agreements, representations and warranties made by the Company herein and in
the certificates or other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that any Agent or
any Lender may have had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the termination of this
Agreement or any provision hereof.



     SECTION 9.06. USA Patriot Act.



     Each Lender hereby notifies the Company that pursuant to the requirements of the USA Patriot
Act, it is required to obtain, verify and record information that identifies the Company, which
information includes the name and address of the Company and other information that will allow such
Lender to identify the Company in accordance with its requirements.



     SECTION 9.07. Counterparts; Integration; Effectiveness.



     This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement, the Fee Letter and any other separate
letter agreements with respect to fees payable to the Administrative Agent constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all









 



45



previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.



     SECTION 9.08. Severability.



     Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.



     SECTION 9.09. Right of Setoff.



     If an Event of Default shall have occurred and be continuing, 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
Company against any of and all the obligations of the Company now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have. Any Lender exercising any of its rights pursuant to this
Section shall provide notice of the same to the Company promptly after exercising the same;
provided, however, the failure to give such notice shall not effect the validity of such setoff.



     SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process; Process Agent;
Waiver of Immunity.



     (a) This Agreement shall be construed in accordance with and governed by the law of the State
of New York.



     (b) The Company hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions









 



46



by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent or any Lender or the Issuing Bank
may otherwise have to bring any action or proceeding relating to this Agreement against the Company
or its properties in the courts of any jurisdiction.



     (c) The Company hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in subsection (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (d) The Company and each other party to this Agreement irrevocably consent to service of
process in the manner provided for notices to it in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.



     SECTION 9.11. WAIVER OF JURY TRIAL.



     EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     SECTION 9.12. Headings.



     Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.



     SECTION 9.13. Confidentiality.



     Each of the Administrative Agent, the Paying Agent and the Lenders and the Issuing Bank agrees
to maintain the confidentiality of the Information (as defined below), except that Information may
be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisers (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential) on a “need to know” basis
solely in connection with the Transactions, (b) to the extent requested by any regulatory
authority, provided, however, that, to the extent legally permitted, the Company is promptly









 



47



notified in order that it may seek a protective order or take other appropriate action, (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) to the extent reasonably required or reasonably deemed
advisable in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any securitization, swap or derivatives transaction relating to the Company, any
Subsidiaries and the obligations hereunder, (g) with the consent of the Company or (h) to the
extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent, the Paying Agent, any Lender or the
Issuing Bank on a nonconfidential basis from a source other than the Company. For the purposes of
this Section, “Information” means all information received from the Company in connection with this
Agreement relating to the Company or its business, other than any such information that is
available to the Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis
prior to disclosure by the Company; provided that, in the case of information received from the
Company after the date hereof, such information is clearly identified as confidential at the time
of delivery. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     SECTION 9.14. Interest Rate Limitation.



     Notwithstanding anything herein to the contrary, if at any time the interest rate applicable
to any Loan, together with all fees, charges and other amounts which are treated as interest on
such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate
(the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to
the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable
in respect of such Loan but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.



[Remainder of page intentionally left blank]











 



48




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	THE SHERWIN-WILLIAMS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CITICORP USA, INC.,	 	 
	 	 	individually, as Administrative Agent, as	 	 
	 	 	Issuing Bank and as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,	 	 
	 	 	as Paying Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 







 









 







EXHIBIT A

to Credit Agreement




FORM OF

ASSIGNMENT AND ACCEPTANCE




     This Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective
Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”)
and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below (as amended, the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth
herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the Credit Agreement (including any letters of credit included in such facility) and
(ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the
“Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Acceptance, without representation or warranty by the
Assignor.



	 	 	 	 	 
	1.

	 	Assignor:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	Assignee:	 	 
	 

	 	 	 	 
	 

	 	 	 	[an Affiliate of [Lender]]
	 
	 	 	 	 
	3.

	 	Company:
	 	THE SHERWIN-WILLIAMS COMPANY
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	CITICORP USA, INC., as the
Administrative Agent under the
Credit Agreement






A-1









 






	 	 	 	 	 
	5.

	 	Credit Agreement:
	 	Five Year Credit Agreement, dated as of
May 23, 2006, among THE
SHERWIN-WILLIAMS COMPANY, the
Lenders party thereto, CITICORP
USA, INC., as Administrative
Agent, and the other agents and
the issuing bank parties thereto
	 
	 	 	 	 
	6.

	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 	 	 
	   Aggregate Amount of	 	Amount of	 	 	Percentage Assigned	 
	   Commitment/Loans/LC	 	Commitment/Loans/	 	 	of Commitment/	 
	   Exposure for all Lenders	 	LC Exposure Assigned	 	 	Loans/LC Exposure1	 
	 
	$
	 	$	 	 	 	 	%	 





Effective Date:                      ___, 20___[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]






 




	
	1      Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans/LC Exposure of all Lenders thereunder.




A-2









 









The terms set forth in this Assignment and Acceptance are hereby agreed to:




	 	 	 	 	 	 	 
	 	 	ASSIGNOR
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 
	Consented to and accepted:
	 
	 	 	 	 
	CITICORP USA, INC.,

as Administrative Agent
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	CITICORP USA, INC.,

as Issuing Bank
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






A-3









 






	 	 	 	 	 
	[Consented to:]2
	 
	 	 	 	 
	THE SHERWIN-WILLIAMS COMPANY
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 








 




			
	2	 	The Company’s consent will not be
required if an Event of Default has occurred and is continuing or the
assignment is to an Affiliate of the Assignor.




A-4









 










ANNEX I




THE SHERWIN-WILLIAMS COMPANY

FIVE YEAR CREDIT AGREEMENT




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE




     1. Representations and Warranties.



     1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the financial condition of the Company, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Loan Document or (iii) the performance
or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and the other Loan Documents as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement and the other Loan Documents, together with copies of the most recent financial
statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a Lender organized under the laws of a jurisdiction outside the
United States, attached to this Assignment and Acceptance is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the Credit Agreement
and the other Loan Documents are required to be performed by it as a Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but excluding the



A-5









 




Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.




     3. General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Acceptance may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the law of the State of New York.




A-6









 







EXHIBIT B

to Credit Agreement




FORM OF NOTE




			
	$                                        
	 	                     ___, ___






     FOR VALUE RECEIVED, the undersigned, THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (the
“Company”), unconditionally promises to pay to the order of 
                                                             (the “Lender”)
the principal sum of                                          DOLLARS ($                    ) or, if less, the aggregate unpaid
principal amount of all Loans made by the Lender pursuant to the Five
Year Credit Agreement, dated as of
May 23, 2006 (as amended, supplemented, amended and restated or otherwise modified from time to
time, the “Credit Agreement”), among the Company, the financial institutions (including the Lender)
from time to time parties thereto, Citicorp USA, Inc., as the Administrative Agent, and each of the
other agents and the issuing bank party thereto, on such dates and in such amounts as are set forth
in the Credit Agreement. The amounts payable under the Credit Agreement may be reduced only in
accordance with the terms of the Credit Agreement. Unless otherwise defined, capitalized terms used
herein have the meanings provided in the Credit Agreement.



     The Company also promises to pay interest on the unpaid principal amount hereof from time to
time outstanding from and including the date hereof until maturity (whether by acceleration or
otherwise) and, after maturity, until paid, at the rates per annum and on the dates specified in
the Credit Agreement.



     Payments of both principal and interest are to be made without setoff or counterclaim in
lawful money of the United States of America in same day or immediately available funds to the
account designated by the Paying Agent.



     This Note is one of the Notes referred to in, and evidences the Loans made by the Lender
under, the Credit Agreement, to which reference is made for a statement of the terms and conditions
on which the Company is permitted and required to make prepayments and repayments of principal of
the indebtedness evidenced by this Note and on which such indebtedness may be declared to be or
shall automatically become immediately due and payable.



     THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



	 	 	 	 	 	 	 
	 	 	THE SHERWIN-WILLIAMS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	 

Name:

Title:
	 	 






B- 1









 





LOAN AND PRINCIPAL PAYMENTS




	 	 	 	 	 	 	 	 	 
	 

	 	Amount
	 	Amount of
	 	Unpaid
	 	Notations
	Date

	 	of Loan
	 	Principal Repaid
	 	Principal Balance
	 	Made By
	 

	 	 
	 	 
	 	 
	 	 





B- 2









 





EXHIBIT C

to Credit Agreement




[Letterhead of Company]




FORM OF

NOTICE OF LC REQUEST




Certificate Date: ______ _, ____




Citicorp USA, Inc.,

as the Issuing Bank

Facsimile:                                         

Attention:                                         




Citicorp USA, Inc.,

as the Administrative Agent

Facsimile:                                         

Attention:                                         




          Re:      THE SHERWIN-WILLIAMS COMPANY— NOTICE OF LC REQUEST




Ladies and Gentlemen:




     This Notice of LC Request is delivered to Citicorp USA, Inc., as the issuing bank (the
“Issuing Bank”), pursuant to
Section 2.04(b) of the Five Year Credit Agreement, dated as of
May 23, 2006
(as amended, supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”), among THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (the “Company”), the
financial institutions from time to time parties thereto as lenders (the “Lenders”), the Issuing
Bank, and Citicorp USA, Inc., as the Administrative Agent. Unless otherwise defined herein,
capitalized terms used herein have the meanings provided in the Credit Agreement.



     1. [We request that the Letter of Credit (the “Letter of Credit”) be issued as provided
herein. The amount of the Letter of Credit is $                    . After giving effect to the issuance
of the Letter of Credit, the Total Exposures of all Lenders do not exceed the aggregate
Commitments.] [We request that the [identify Letter of Credit] (the “Letter of Credit”) be
[amended] [renewed] [extended] as provided herein. After giving effect to the [amendment]
[renewal] [extension] of the Letter of Credit, the Total Exposures of all Lenders do not exceed the
aggregate Commitments.]



     2. The proposed date of the requested [issuance] [amendment] [renewal] [extension] of the
Letter of Credit is                      ___, ___(which is a Business Day).



     3. The expiration date of the Letter of Credit is                     ___, ___.1





 




			
	1	 	Insert date which is at or prior to the close
of business on the Maturity Date.




C- 1









 










     4. [Company to add any other description necessary to prepare, amend, renew or extend the
Letter of Credit (including amount of Letter of Credit, beneficiary thereof, drawing conditions,
etc.).]



     The undersigned Financial Officer of the Company certifies that each of the conditions
precedent to the proposed issuance set forth in Section 4.02 of the Credit Agreement has been
satisfied.



     The Company has caused this Notice of LC Request to be executed and delivered by a Financial
Officer of the Company this ___day of                     , ___.



	 	 	 	 	 	 	 
	 	 	THE SHERWIN-WILLIAMS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 







C- 2









 








EXHIBIT D

to Credit Agreement




FORM OF STANDBY LETTER OF CREDIT




Date:
_____   __ ,  ____




Beneficiary:




Citibank, N.A.

c/o Citicorp North America, Inc.

3800 Citibank Center

Building B 3rd Floor

Tampa, FL 33610




Letter of Credit No. [•]




Gentlemen:




     By order of THE SHERWIN-WILLIAMS COMPANY (the “Company”), we hereby open our irrevocable
Standby Letter of Credit No. [•] (this “Credit”), in your favor for an amount of USD [•] and No
Cents ([•] U.S. Dollars and 00/100), which may adjust from time to time as provided in the next
paragraph, effective immediately and expiring at our office located at 399 Park Avenue, New York,
NY 10022-4614 (the “Office”) on June 20,
2011.



     This Credit has been issued in your favor as security in support of the letters of credit
already issued by you or to be issued by you on or after the date hereof in the amounts notified to
us by you or to be issued by you from time to time hereafter for the account of the Company
pursuant to the Agreement for Letter of Credit, dated as of
May 23, 2006, between the Company and you
(the “Reimbursement Agreement”) and any other written agreement between the Company and you
regarding the issuance of letters of credit for the account of the Company that specifies that such
letters of credit are to be considered Citibank LCs, as hereinafter defined (such letters of credit
being hereinafter referred to collectively as the “Citibank LCs”). The amount outstanding under
this Credit may adjust from time to time, without amendment, to account for (i) drawings hereunder
that we have honored (in the amount of such drawing), (ii) cancellation, increase, reduction or
expiration of Citibank LCs, upon receipt by us of your notice describing such cancellation,
increase, reduction or expiration (in the amount of the available amount of the Citibank LCs that
have been cancelled or expired or in the amount of such reduction, as applicable), and (iii)
issuance by you from time to time after the date hereof of any Citibank LC (in the amount of the
available amount of such Citibank LC), subject in the case of any increase described in clause (ii)
or any issuance described in clause (iii), to confirmation by us prior to such increase or issuance
of the available amount hereunder. In no event shall the amount available hereunder exceed $[•].



     Funds hereunder are available to you against your sending to us by courier or facsimile either
of the following written certifications:



 









 






“We hereby demand payment in the amount of USD                     
because, in connection with our Irrevocable Standby Letter of Credit
No.                                          (the “Credit”), the beneficiary has drawn a
draft under the Credit (the “Draft”), we did not receive payment
when due for the amount of such Draft.”




“We hereby demand payment in the amount of USD (which amount does
not exceed the aggregate outstanding undrawn amounts under the
letters of credit issued under the Agreement for Letter of Credit,
dated as of May 23, 2006, as amended, between The Sherwin-Williams
Company and Citibank, N.A.” (the “Reimbursement Agreement”) because
there has been an Event of Default (without regard to the proviso at
the end of Section 15 of the Reimbursement Agreement) under the
Reimbursement Agreement.



     Any number of multiple draws are permitted from time to time.



     Presentation of drawing document(s) may also be made by fax transmission to (212) 994-0847, or
such other fax number identified by Citicorp USA, Inc. in a written notice to you. To the extent a
presentation is made by fax transmission, you must provide telephone notification thereof to
Citicorp USA, Inc. ((302) 994-6109, Dennis Banfield), prior to or simultaneously with the sending
of such fax transmission, provided, however, that Citicorp USA, Inc.’s receipt of such telephone
notice shall not be a condition to payment hereunder.



     We hereby agree to honor your drawing documents as specified above, if presented in compliance
with the terms and conditions of this Standby Letter of Credit.



     Should you have occasion to communicate with us regarding this Standby Letter of Credit,
please direct your correspondence to our Office, making specific mention of the Letter of Credit
number indicated above.



[Remainder of page left intentionally blank.]




D- 2









 








     Except as otherwise expressly stated herein, this Standby Letter of Credit is subject to the
International Standby Practices (“ISP98”), International Chamber of Commerce, Publication No. 590,
and as to matters not addressed by the ISP98, shall be governed by and construed in accordance with
the laws of the State of New York and applicable U.S. Federal Law.



CITICORP USA, INC.




AUTHORIZED SIGNATURE





D- 3









 








Schedule 2.01

Commitments




	 	 	 	 	 
	Lender	 	Commitment
	Citicorp USA, Inc.
	 	$	100,000,000	 
	 
	 	 	 	 
	Total
	 	$	100,000,000