EX-4.2



 








Exhibit 4.2




Citibank, N.A.




AGREEMENT FOR LETTER OF CREDIT

dated as of May 23, 2006




Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall
have the meanings set forth in Section 26.



Citibank, N.A. (“Citibank”) agrees to issue at the request and for the account of the
undersigned (the “Applicant”) one or more irrevocable letters of credit, each in a
form satisfactory to the Applicant and Citibank (each a “Credit”, and collectively,
the “Credits”), up to an aggregate maximum amount not to exceed the amount of the
Security Letter of Credit, substantially in accordance with the terms and conditions hereof.
In consideration of your issuing, from time to time, one or more Credits substantially in
accordance with the terms and conditions provided by the Applicant, Applicant unconditionally
agrees with Citibank as follows:



1. Condition to Issuance of any Credit. The obligation of Citibank to issue a Credit
hereunder, on any Business Day, is subject to (a) the Security Letter of Credit having an
available amount not less than the sum of (i) the aggregate amount of the Credits outstanding
on such date, plus (ii) the aggregate amount of Drafts, if any, not reimbursed by or on behalf
of Applicant on such date, plus (iii) the amount of the Credit that Applicant has requested
Citibank to issue on such date, (b) any such Credit having a maturity date that is no later
than five Business Days prior to the expiration date of the Security Letter of Credit and (c)
Citibank having received at least one Business Day’s prior written notice at its office
specified below requesting such Credit in the form attached as Annex I.



2. Reimbursement. Applicant will pay Citibank the amount of each draft or other request for
payment (each, a “Draft”) drawn under any Credit, whether drawn before, on or, if in
accordance with applicable law, after the expiry date stated in any such Credit. Each such
payment shall be made, following payment by Citibank, on demand.



3. Commissions, Fees, Charges and Expenses. Applicant will pay Citibank within ten Business
Days of demand therefor, all expenses, charges and other amounts which Citibank may actually
pay or actually incur in connection with the Credits, it being agreed that Applicant is not
obligated to pay to Citibank any commitment commission, facility fee or letter of credit fee
in respect of the Credits.



4. Payments; Interest on Past Due Amounts; Computations. All amounts due from Applicant shall
be paid to Citibank at 399 Park Avenue, New York, New York 10043 (or such other address
notified to Applicant in writing), with-out defense, set-off, cross-claim, or counterclaim of
any kind, in U.S. dollars and in same day funds, provided, however, that if any such amount is
denominated in a currency other than U.S. Dollars, Applicant will pay the equivalent of such
amount in U.S. Dollars computed at Citibank’s selling rate for cable transfers to the place
where and in the currency in which such amount is payable, or such other currency, place, form
and manner acceptable to Citibank in its sole discretion. Any amount not paid when due shall
bear interest until paid in full at a daily fluctuating interest rate per annum equal to two
percent per annum above the rate of interest announced publicly from time to time by Citibank
in New York as Citibank’s Base Rate. Applicant authorizes Citibank to charge any account of
Applicant for any amount when due. Unless otherwise agreed in writing as to any Credit, all
computations of commissions, fees and interest shall be based on a 360-day year and actual
days elapsed.



5. Additional Costs. (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, Citibank; or



(ii) impose on Citibank any other condition affecting this Agreement or the Credits;



and the result of any of the foregoing shall be to increase the cost to Citibank in an amount
Citibank deems material of issuing or



Page 1









 







maintaining the Credits or reduce the amount of any sum
received or receivable by Citibank hereunder (whether of principal, interest or otherwise),
other than any increase in costs resulting from (i) Excluded Taxes or (ii) Indemnified Taxes
or Other Taxes to which Section 6 is applicable, then Applicant will pay to Citibank in
accordance with Section 4 such additional amount or amounts as will compensate Citibank for
such additional costs incurred or reduction suffered.



(b) If Citibank determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on Citibank’s capital or on the capital of
Citibank’s holding company, if any, as a consequence of this Agreement or the Credits to a
level below that which Citibank or Citibank’s holding company could have achieved but for such
Change in Law (taking into consideration Citibank’s policies and the policies of Citibank’s
holding company with respect to capital adequacy), then from time to time Applicant will pay
to Citibank in accordance with Section 4 such additional amount or amounts as will compensate
Citibank or Citibank’s holding company for any such reduction suffered.



(c) A certificate of Citibank setting forth the amount or amounts necessary to compensate
Citibank 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 Applicant and shall be conclusive absent
manifest error; provided that Citibank shall not be required to deliver information pursuant to
this Section relating to its business, other than any such information that is available to the
Applicant on a nonconfidential basis prior to the date of such certificate. Applicant shall pay
to Citibank the amount shown as due on any such certificate within 10 days after receipt
thereof.



(d) Failure or delay on the part of Citibank to demand compensation pursuant to this Section
shall not constitute a waiver of Citibank’s right to demand such compensation; provided that
Applicant shall not be required to compensate Citibank pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that Citibank
notifies Applicant of the Change in Law giving rise to such increased costs or reductions and
of Citibank’s intention to claim compensation therefor.



6. Taxes. Any and all payments by or on account of any obligation of Applicant hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if Applicant 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) Citibank receives an amount equal to
the sum it would have received had no such deductions been made, (ii) Applicant shall make
such deductions and (iii) Applicant shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.



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



(c) Applicant shall indemnify Citibank, 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
Citibank on or with respect to any payment or an account of any Obligation of the Applicant
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 Applicant by Citibank shall be conclusive
absent manifest error. Notwithstanding the foregoing, the Applicant shall have no obligation
to indemnify Citibank for any interest, penalties or expenses described above and arising from
the gross negligence or willful misconduct of Citibank in taking any action it was required to
take
including, but not limited to, filing any tax return or report in a timely manner.



Page 2









 





(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by Applicant
to a Governmental Authority, Applicant shall deliver to Citibank the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably satisfactory to
Citibank.



(e) Any foreign assignee that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which Applicant is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall, upon request of
Applicant, deliver to Applicant, at the time or times prescribed by applicable law or
reasonably requested by Applicant, 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 Citibank determines that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Applicant or with respect to which the Applicant has paid
additional amounts pursuant to this Section 6, it shall pay over such refund to the Applicant
(but only to the extent of indemnity payments made, or additional amounts paid, by the
Applicant under this Section 6 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of Citibank and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund); provided,
that the Applicant, upon the request of Citibank, agrees to repay the amount paid over to the
Applicant (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to Citibank in the event Citibank is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require Citibank to make
available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Applicant or any other Person.



7. Indemnification. (a) Applicant agrees to pay (i) all reasonable out-of-pocket expenses
incurred by the Citibank and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for Citibank, 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 Citibank, including the reasonable fees,
charges and disbursements of any counsel for Citibank, 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 Credits, including in connection with any workout,
restructuring or negotiations in respect thereof.



(b) Applicant agrees to indemnify Citibank, 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 their respective obligations
hereunder or the consummation of the transactions contemplated hereby, (ii) any Credit or the
use of the proceeds thereof (including any refusal by Citibank to honor a demand for payment
under any Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by Applicant or any of its
Subsidiaries, or any Environmental Liability related in any way to Applicant or any of its
Subsidiaries, or (iv) 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



Page 3









 






of such Indemnitee or its Affiliates or from a breach of this Agreement by such Indemnitee.



(c) To the extent permitted by applicable law, each party hereto shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special,
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, any Credit or the use of the proceeds thereof.



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



8. Obligations Absolute: Limitations of Liability. (a) Applicant’s obligation to repay the
Drafts and to make the other payments provided herein (the “Obligations”) 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 Credits or this Agreement, or any term or provision therein,
(ii) the existence of any claim, set-off, defense or other right that Applicant, or any
Affiliate of Applicant may have at any time against the beneficiary or any transferee of the
Credits (or any Persons or entities for whom such beneficiary or transferee may be acting),
Citibank or any other Person, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction; (iii) without limiting Section 8(b) below, any
Draft, demand certificate or any other document presented under the Credits proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate
in any respect, (iv) without limiting Section 8(b) below, payment by Citibank under the Credits
against presentation of a Draft or other document that does not comply with the terms of the
Credits, (v) the surrender or impairment of any security for the performance or observance of
any of the terms of this Agreement or any Credit; (vi) any non-application or misapplication by
the beneficiary the Credits of the proceeds of any drawing under the Credits; (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, Applicant’s obligations hereunder.



(b) Neither Citibank nor any of its Related Parties shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of the Credits or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in
the preceding subsection (a)), or any error, omission, interruption, loss or delay in
transmission or delivery of any Draft, notice or other communication under or relating to the
Credits (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
Citibank; provided that the foregoing shall not be construed to excuse Citibank from liability
to Applicant to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by Applicant to the extent permitted by applicable law)
suffered by Applicant that are caused by Citibank’s failure to exercise care when determining
whether Drafts and other documents presented under the Credits comply with the terms thereof.
The parties hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of Citibank (as finally determined by a court of competent jurisdiction),
Citibank 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 Credits, Citibank 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 Credits.



Page 4









 





9. Independence. Applicant acknowledges that the rights and obligations of Citibank under the
Credits are independent of the existence, performance or nonperformance of any contract or
arrangement underlying the Credits, including contracts or arrangements between Citibank and
Applicant and between Applicant and the beneficiary of any Credit. Citibank shall have no duty
to notify Applicant of its receipt of a Draft, certificate or other document presented under any
Credit or of its decision to honor any such Credit. Citibank may, without incurring any
liability to Applicant or impairing its entitlement to reimbursement under this Agreement, honor
any Credit despite notice from Applicant of, and without any duty to inquire into, any defense
to payment or any adverse claims or other rights against the beneficiary of any Credit or any
other Person. Citibank shall have no duty to request or require the presentation of any
document, including any default certificate, not required to be presented under the terms and
conditions of any Credit. Citibank shall have no duty to seek any waiver of discrepancies from
Applicant, nor any duty to grant any waiver of discrepancies which Applicant approves or
requests. Citibank shall have no duty to extend the expiration date or term of any Credit or to
issue a replacement letter of credit on or before the expiration date of any Credit or the end
of such term.



10. Non-Documentary Conditions. Citibank is authorized (but shall not be required) to disregard
any non-documentary conditions stated in any Credit.



11. Transfers. If, at Applicant’s request, any Credit is issued in transferable form, Citibank
shall have no duty to determine the proper identity of anyone appearing in any transfer request,
Draft, or other document as transferee, nor shall Citibank be responsible for the validity or
correctness of any transfer.



12. Extensions and Modifications of the Credit. This Agreement shall be binding upon Applicant
with respect to any extension or modification of any Credit made at Applicant’s request or with
Applicant’s consent. Applicant’s Obligations shall not be reduced or impaired in any way by any
agreement by Citibank and the beneficiary of any Credit extending Citibank’s time to honor or to
give notice of discrepancies and any such agreement shall be binding upon Applicant.



13. Covenants of Applicant. Applicant will, so long as any Credit or any reimbursement or other
payment obligation of Applicant under this Agreement remains outstanding, comply with the
covenants set forth below:



(a) Applicant will furnish to Citibank (i) within 90 days after the end of each fiscal year of
Applicant, 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 consolidated financial condition and results of operations of Applicant
and the Subsidiaries on a consolidated basis in accordance with GAAP; (ii) within 45 days after
the end of each of the first three fiscal quarters of each fiscal year of Applicant, 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 Applicant and the Subsidiaries on a consolidated basis in accordance
with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (iii)
concurrently with any delivery of financial statements under clause (i) or (ii) above, a
certificate of a Financial Officer of Applicant 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; (iv) 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 Applicant with the Securities and Exchange Commission, or any



Page 5









 





Governmental Authority succeeding to any or all of the functions of said Commission, or
distributed by Applicant to its shareholders generally, as the case may be; (v) promptly
following a request therefor, all documentation and other information that Citibank 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 (vi) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of Applicant or any Material Subsidiary, or
compliance with the terms of this Agreement, as Citibank may reasonably request. Information
required to be delivered pursuant to this Section shall be deemed to have been delivered if such
information, or one or more annual or quarterly reports containing such information, shall be
available on the website of the Securities and Exchange Commission at http://www.sec.gov and a
confirming electronic correspondence shall have been delivered or caused to be delivered to
Citibank providing notice of such posting or availability; provided that Applicant shall deliver
paper copies of such information to Citibank if Citibank requests such delivery. Information
required to be delivered pursuant to this Section may also be delivered by electronic
communications pursuant to procedures approved by the Citibank.



(b) Applicant will furnish to Citibank prompt written notice of the occurrence of any Default
promptly after any Financial Officer becomes aware thereof. Each notice delivered under this
subsection (b) shall be accompanied by a statement of a Financial Officer or other executive
officer of Applicant setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.



(c) Applicant will, and will cause each of the Material Subsidiaries to, (i) keep and maintain
all property material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect, and (ii) maintain, with financially sound and
reputable insurance companies, insurance or maintain a self-insurance program in such amounts
and against such risks as are customarily maintained by companies of similar size and financial
strength engaged in the same or similar businesses operating in the same or similar locations
(including without limitation by the maintenance of adequate self-insurance reserves to the
extent customary among such companies).



(d) Applicant will, and will cause each of the Material Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. Applicant will, and will cause each of
the Material Subsidiaries to, permit any representatives designated by Citibank, at its own
expense if an Event of Default has not occurred and is continuing, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers, all at such reasonable
times and as often as reasonably requested.



(e) Applicant will, and will cause each of the Material Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually and in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



(f) Applicant will observe or perform each covenant, condition and agreement contained in
Section 5.03 (but only with respect to the Applicant’s existence) and in Article VI of the
Credit Agreement.



14. Representations and Warranties of Applicant. Applicant represents and warrants that (a) it
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; (b) the
transactions contemplated by this Agreement
are within the Applicant’s corporate powers and have been duly authorized by all necessary



Page 6









 





corporate action, this Agreement has been duly executed and delivered by the Applicant and
constitutes a legal, valid and binding obligation of the Applicant, 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; (c) the transactions
contemplated by this Agreement (i) 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 (A) those required in the ordinary
course of business of the Applicant in connection with the performance by the Applicant 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 (B) the filing by the Applicant 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, (ii) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of the Applicant or any order of any
Governmental Authority, (iii) will not result in a material violation of or default under any
indenture or other material agreement or instrument binding upon the Applicant or any of the
Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be
made by the Applicant or any of the Subsidiaries, and (iv) will not result in the creation or
imposition of any material Liens on any material assets of the Applicant or any of the
Subsidiaries; (d) Applicant has heretofore furnished to Citibank
(i) 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 (ii) 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 Applicant and its Subsidiaries as of the dates
thereof and results of
operations and cash flows of Applicant 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; (e) each of the reports required to be filed by
Applicant 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; (f) neither Applicant 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 and (g)
neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940.



15. Default. Each of the following shall be an “Event of Default” under this Agreement:
(a) the Applicant’s failure to pay (i) when due, any principal of any obligation to Citibank
under this Agreement, or (ii) within five (5) Business Days when due, any interest on any
obligation to Citibank or any fee or other amount payable to Citibank under this Agreement, (b)
Applicant’s failure to observe or perform any covenant, condition or agreement contained in
Section 5.03 (but only with respect to the Applicant’s existence) or in Article VI of the Credit
Agreement, (c) Applicant’s failure to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clauses (a) and (b) of this Section),
and such failure shall continue unremedied for a period of 60 days after written notice thereof
from Citibank to the Applicant, (d) any representation or warranty made in this Agreement or any
document delivered by it under this Agreement, shall prove to have been incorrect in any
material respect when made, deemed made or delivered, (e) any “Event of Default” under and as
defined in the Credit Agreement, shall have occurred and be continuing or (f) Applicant or any
Subsidiary shall fail to make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same shall become due and
payable (subject to any applicable grace period); provided, however, any Event
of Default shall be deemed waived by Citibank if and for so long as the amount available to be
drawn under the Security Letter of Credit or the amount of Security Letter of Credit Proceeds
then held by Citibank equals of exceeds the aggregate
amount of the Credits plus the aggregate outstanding principal amount of reimbursement



Page 7









 





obligations under Section 2 at the time of determination.



16. Remedies; Security Letter of Credit Proceeds. (a) To the extent the Obligations are not
fully satisfied pursuant to the last sentence of Section 16(b), if any Event of Default shall
have occurred and be continuing, the amount of each Credit as well as any or all Obligations
shall, at Citibank’s option, become due and payable immediately without presentment, demand,
protest, or notice of any kind, all of which are hereby expressly waived by Applicant;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to Applicant under the U.S. Federal Bankruptcy Code, the amount of the
Credit and all Obligations shall automatically become due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived by Applicant. In
addition, Citibank may (i) if any Credit shall not have been issued, by notice to Applicant
declare its obligation to issue any Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) send notice to Applicant of the occurrence of an Event of Default thereby
resulting in (I) the termination of the Credits on the tenth Business Day following receipt by
Applicant of such notice and (II) pursue all other remedies available at law, by contract, in
equity or otherwise.



(b) Citibank agrees, to the fullest extent permitted by law, (i) to apply the proceeds of each
draw under the Security Letter of Credit directly to the satisfaction of the Obligations due and
payable at the time of such draw and (ii) to apply any remaining amount of such draw (and any
proceeds or investments thereof) directly to the other Obligations, when and as such Obligations
become due and payable (such drawn amounts and any proceeds or investments thereof,
“Security Letter of Credit Proceeds”). Receipt or application of the Security Letter of
Credit Proceeds to the Obligations in accordance with the foregoing shall constitute for all
purposes of this Agreement (including reinstatement, if applicable, of amounts available to be
drawn under any Credit) satisfaction of the Obligations to the extent of the amounts so applied.



(c) Subject to Section 16(b), Applicant agrees that Citibank will have the sole right to sell,
pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use
in its business any Security Letter of Credit Proceeds it holds, free from any claim or right of
any nature whatsoever of Applicant, including any equity or right of redemption by Applicant.
For purposes of any rights or remedies authorized under this Agreement, Citibank will be deemed
to continue to hold all Security Letter of Credit Proceeds, regardless of whether Citibank has
exercised any rights with respect to any Security Letter of Credit Proceeds pursuant to the
preceding sentence.



(d) Citibank agrees that promptly following the Termination Date, Citibank will return to
Applicant all Security Letter of Credit Proceeds, if any, then held by Citibank. Citibank and
Applicant agree that, for the avoidance of doubt, (i) the Security Letter of Credit Proceeds are
the property of Citibank and not of Applicant, (ii) Applicant has no interest in the Security
Letter of Credit or any Security Letter of Credit Proceeds other than the right to receive any
remaining Security Letter of Credit Proceeds following the Termination Date as described in the
immediately preceding sentence, and (iii) this Agreement does not constitute a transfer of the
property of Applicant.



(e) Applicant agrees that, from time to time upon the written request of Citibank, Applicant
will execute and deliver such further documents and do such other acts and things as Citibank
may reasonably request in order fully to effect the purposes of this subsection. Citibank may
employ agents and attorneys in fact in connection with this Section and shall not be responsible
for the negligence or misconduct of any such agents or attorneys in fact selected by it in good
faith.



17. Set-off. If any Event of Default shall occur and be continuing, Citibank may 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 Citibank to or for the credit or the
account of Applicant (“Deposits”) against any and all of the Obligations to the extent
that such Obligations have not been fully satisfied pursuant to the last
sentence of Section 16(b) or otherwise, irrespective of whether or not Citibank shall



Page 8









 







have made
any demand under this Agreement and although such Deposits or Obligations may be unmatured or
contingent. Citibank’s rights under this Section are in addition to other rights and remedies
(including other rights of set-off) which Citibank may have under this Agreement or applicable
law.



18. Waiver of Immunity. Applicant acknowledges that this Agreement is, and each Credit will be,
entered into for commercial purposes and, to the extent that Applicant now or later acquires any
immunity from jurisdiction of any court or from any legal process with respect to itself or its
property, Applicant now irrevocably waives its immunity with respect to the Obligations.



19. Notices; Interpretation; Severability. Notices shall be effective, if to Applicant, when
sent to its address indicated below the signature line and, if to Citibank, when received at Two
Penns Way, Suite 110, New Castle, Delaware 19720, Attention Dennis Banfield, facsimile number:
212-994-0847, or as to either, such other address as either may notify the other in writing.
Headings are included only for convenience and are not interpretative. The term
“including” means “including without limitation.” If any provision of this Agreement is
held illegal or unenforceable, the validity of the remaining provisions shall not be affected.



20. Successors and Assigns. This Agreement shall be binding upon Applicant and its successors
and permitted assigns, and shall inure to the benefit of and be enforceable by Citibank, its
successors and assigns. Applicant shall not voluntarily transfer or otherwise assign any of its
obligations under this Agreement. Citibank, subject, if the transferee is not an Affiliate, to
Applicant’s consent if no Event of Default exists, may transfer or otherwise assign its rights
and obligations under this Agreement, in whole or in part, and shall be forever relieved from
any liability with respect to the portion of Citibank’s rights or obligations transferred or
assigned. Applicant acknowledges that information pertaining to Applicant as it relates to this
Agreement or the Credits may be disclosed to (actual or potential) transferees or assignees so
long as such actual or potential transferee agrees to be bound by the confidentiality provisions
hereof. This Agreement shall not be construed to confer any right or benefit upon any Person
other than Applicant and Citibank and their respective successors and permitted assigns.



21. Modification; No Waiver. None of the terms of this Agreement may be waived or amended except
in a writing signed by the party against whose interest the term is waived or amended.
Forbearance, failure or delay by Citibank in the exercise of a remedy shall not constitute a
waiver, nor shall any exercise or partial exercise of any remedy preclude any further exercise
of that or any other remedy. Any waiver or consent by Citibank shall be effective only in the
specific instance and for the specific purpose for which it is given and shall not be deemed,
regardless of frequency given, to be a further or continuing waiver or consent.



22. Multiple Role Disclosure. Citibank and its Affiliates offer a wide range of financial
services, including back-office letter of credit processing services on behalf of financial
institutions and letter of credit beneficiaries. Our services are provided internationally to a
wide range of customers, some of whom may be Applicant’s counter-parties or competitors.
Applicant acknowledges and accepts that Citibank and its Affiliates may perform more than one
role in relation to any particular Credit.



23. Integration; Remedies Cumulative; Delivery by Facsimile. This Agreement constitutes the
entire agreement between the parties concerning Citibank’s issuance of a Credit or Credits for
Applicant’s account and supersedes all prior or simultaneous agreements, written or oral. All
rights and remedies of Citibank under this Agreement and other documents delivered in connection
with this Agreement are cumulative and in addition to any other right or remedy under this
Agreement, the Credits or applicable law. Delivery of a signed signature page to this Agreement
by facsimile transmission shall be effective as, and shall constitute physical delivery of, a
signed original counterpart of this Agreement.



24. Termination; Surviving Provisions. This Agreement shall be terminated only upon payment in
full to Citibank of all Obligations hereunder. Restrictive provisions in this
Agreement, such as indemnity, tax, immunity, and jurisdiction provisions shall survive



Page 9









 





termination of this Agreement. If any Credit is issued in favor of any bank or other financial
or commercial entity in support of an undertaking issued by such bank or entity on behalf of
Applicant or Citibank, Applicant shall remain liable under this Agreement (even after expiry of
any such Credit) for amounts paid and expenses incurred by Citibank with respect to any such
Credits or the undertaking until Citibank is released by such other bank or entity.



25. Governing Law; Submission to Jurisdiction; Confidentiality. (a) This Agreement shall be
governed by and construed in accordance with the laws of the State of New York. Applicant
hereby submits to the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in New York City for
purposes of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Applicant irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of venue of any such
proceeding brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.



(b) Applicant agrees that Citibank may issue Credits subject to the Uniform Customs and Practice
for Documentary Credits, 1993 Revision, International Chamber of Commerce Publication No. 500
(the “UCP”) or the International Standby Practices, International Chamber of Commerce
No. 590 (the “ISP”) or, at Citibank’s option, such later revision thereof in effect at
the time of issuance of any Credit. The UCP or the ISP, as applicable, shall serve, in the
absence of proof to the contrary, as evidence of general banking usage with respect to the
subject matter thereof.



(c) Applicant agrees that for matters not addressed by the UCP or the ISP, the Credits shall be
subject to and governed by the laws of the state of New York and applicable U.S. Federal laws.
If, at Applicant’s request, any Credit expressly chooses a state or country law other than New
York, U.S.A., or is silent with respect to UCP, ISP or governing law, Citibank shall not be
liable for any payment, cost, expense or loss resulting from any action or inaction taken by
Citibank if such action or inaction is justified under UCP, ISP, New York law or the law
governing any such Credit.



(d) Citibank agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (i) to Citibank 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 contemplated by this
Agreement, (ii) to the extent requested by any regulatory authority, provided, however, that, to
the extent legally permitted, the Applicant is promptly notified in order that it may seek a
protective order or take other appropriate action, (iii) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (iv) 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, (v) subject to an agreement containing provisions substantially the same as
those of this subsection (d), to (A) any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this Agreement or (B) any
actual or prospective counterparty (or its advisors) to any securitization, swap or derivatives
transaction relating to the Applicant, any Subsidiaries and the obligations hereunder, (vi) with
the consent of the Applicant or (vii) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this subsection (d) or (B) becomes available to
Citibank on a nonconfidential basis from a source other than the Applicant. For the purposes of
this subsection (d), “Information” means all information received from the Applicant in
connection with this Agreement relating to the Applicant or its business, other than any such
information that is available to Citibank on a nonconfidential basis prior to disclosure by the
Applicant; provided that, in the case of information received from the Applicant after the date
hereof, such information is clearly
identified as confidential at the time of delivery. Any Person required to maintain the



Page 10









 





confidentiality of Information as provided in this subsection (d) 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.



26. Defined Terms. Unless otherwise defined in this Agreement, capitalized terms used in this
Agreement shall have the following meanings:



“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.



“Applicant” shall have the meaning set forth in the Preamble hereto.



“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to remain closed.



“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.



“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
Citibank (or, for purposes of Section 5(b), by any lending office of Citibank or by Citibank’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.



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



“Consolidated Total Assets” means, on any date, the aggregate amount of assets of the Applicant
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” shall have the meaning set forth in the Preamble hereto.



“Credit
Agreement” means the Five Year Credit Agreement, dated
as of May 23, 2006, among
Applicant, as borrower, the lenders named therein, Citicorp USA, Inc., as issuing bank and
administrative agent, and JPMorgan Chase Bank, N.A., as paying agent, as amended, supplemented,
modified, amended and restated or refinanced from time to time.



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



“Deposits” shall have the meaning set forth in Section 17 hereto.



“Draft” shall have the meaning set forth in Section 2 hereto.



“Environmental Laws” means any and all federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions relating to the environment
or the release of any materials into the environment.



“Environmental Liability” means any liability, contingent or otherwise (including any liability
for damages, costs of environmental remediation, fines, penalties or indemnities), of Applicant
or any of its Consolidated Subsidiaries 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



Page 11









 







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.



“Event of Default” shall have the meaning set forth in Section 15 hereto.



“Excluded Taxes” means, with respect to Citibank, or any other recipient of any payment to be
made by or on account of any obligation of Applicant 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 Citibank, 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 Applicant is located, (c) in the case of a foreign
assignee or any foreign branch or Affiliate of Citibank caused by Citibank to issue a Credit,
any withholding tax that is imposed by the United States of America on amounts payable to such
foreign assignee at the time such foreign assignee becomes a party to this Agreement or such
foreign branch or Affiliate is caused to issue such a Credit or is attributable to such foreign
assignee’s or such foreign branch’s or Affiliate’s failure or inability to comply with Section
6(e), except to the extent that such foreign assignee’s assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from Applicant with respect to such
withholding tax pursuant to Section 6(a) and (d) in the case of any foreign assignee or foreign
branch, any withholding tax that is imposed by the U.S. on amounts payable to such foreign
assignee or foreign branch that are attributable to such foreign assignee or foreign branch’s
failure to comply with Section 6(e).



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



“GAAP” means generally accepted accounting principles in the United States of America.



“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.



“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.



“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 Applicant or the
Subsidiaries shall be a Hedging Agreement. The amount of the obligations of the Applicant 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 Applicant 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



Page 12









 







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 7.



“ISP” shall have the meaning set forth in Section 25 hereto.



“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
Applicant 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.



“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 Applicant
and the Subsidiaries taken as a whole, (b) the ability of the Applicant to perform any of its
material obligations under the Credit Agreement or this Agreement or (c) the legality, validity,
binding effect or enforceability against the Applicant of the Credit Agreement or this
Agreement.



“Material Indebtedness” means Indebtedness (other than the loans and letters of credit issued
under the Credit Agreement), or obligations in respect of one or more Hedging Agreements, of any
one or more of the Applicant and its Subsidiaries in an aggregate principal amount exceeding
$50,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Applicant 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
Applicant or such Subsidiary would be required to pay if such Hedging Agreement were terminated
at such time.



“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 Securities
and Exchange Commission and (b) each other Subsidiary designated as a “designated subsidiary” by
the Applicant. The Applicant 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.



“Obligations” shall have the meaning set forth in Section 8 hereto.



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



“Person” means an individual, a corporation, a limited liability company, a partnership, an
association, a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof or any successor or assign thereof.



Page 13









 





“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.



“Security Letter of Credit” means a Letter of Credit issued by Citicorp USA, Inc. naming
Citibank as beneficiary to support the payment by the Applicant of the Obligations.



“Security Letter of Credit Proceeds” shall have the meaning set forth in Section 16 hereto.



“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 Applicant.



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



“Termination Date” means the later to occur of (a) the termination of the Security Letter
of Credit and (b) the date of the termination or expiry of all Credits and the payment in full
(including, without limitation, by application of Security Letter of Credit Proceeds in
accordance with this Agreement) of all Obligations that are or may become payable.



“U.S.” means the United States of America.



“UCP” shall have the meaning set forth in Section 25 hereto.



“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.



27. JURY TRIAL WAIVER. APPLICANT AND CITIBANK EACH IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL
OF ANY CLAIM, COUNTERCLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE
CREDIT, OR ANY DEALINGS WITH ONE ANOTHER RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.



Page 14









 





	 	 	 	 	 	 	 
	Very truly yours,	 	 	 	 
	 
	 	 	 	 	 	 
	Applicant: The Sherwin-Williams Company	 	 	 	 
	 
	 	 	 	 	 	 
	By: (Authorized Signer):	 	 	 	 
	 
	 	/s/ 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Signature)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Print Name)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Title)	 	 	 	 
	 
	 	/s/ 	 	 	           /s/
	 
	 	 	 	 	 	 
	 
	 	(Signature)	 	 	 	Relationship Manager (Signature & Stamp)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Print Name)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	(Title)
	 	 	 	(Other required Signature & Stamp)
	 
	 	 	 	 	 
	Address:

	 	101 Prospect Avenue, N.W.	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Cleveland, OH 44115	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Co-Applicant (if any):	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	By (Authorized Signer):	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Signature)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Print Name)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	(Title)	 	 	 	 
	 
	 	 	 	 	 	 
	Address:

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(For Citibank Use Only)	 	 	 	 
	Approvals to Issue	 	 	 	 






Page 15









 







Annex I




Application for Standby Letter of Credit

Citibank, N.A., New York, NY 10043

Attn: Standby Letter of Credit Dept.,                Letter of Credit Reference No.                                         







	 	 	 	 	 
	 
	 	Applicant (Name and Address)	 	The Sherwin-Williams Company
	Advising Bank (Name and
Address)
	 	 	 	 
	 
	 	 	 	 
	 
	Beneficiary (Name and Address)
	 	Expiry Date and	 	[NOT LATER THAN [FIVE
	 
	 	Place:	 	BUSINESS DAYS] PRIOR TO THE
	 
	 	 	 	EXPIRATION DATE OF THE
	 
	 	 	 	SECURITY LETTER OF CREDIT]
	 
	 	 	 	 
	 
	 	Amount (In specific currency):	 	$
	 
	 	 	 







This Application is for the issuance of a standby letter of credit under and subject to the terms
and conditions of (select one):



|      The Agreement for Standby Letter of Credit attached hereto:




o      The Continuing Agreement for Commercial and / or Standby Letters of Credit dated _____________.â





o      Other (describe):



 



Subject to the following terms and conditions, please issue your irrevocable Letter of Credit
(hereinafter called the “Credit”) to be available by the beneficiary’s draft(s):
Drawn at sight on:



|      Citibank, N.A., New York, NY




o      Other:





 




(Name and Address of Paying Bank, if any)



Accompanied by Beneficiary’s written statement that the amount of any drafts(s) drawn hereunder
represent funds due and payable because of the following reasons (select one):




o      Applicant of the Credit has failed to comply with terms or conditions of a contract described as:



 






 





o      Applicant of the Credit has been awarded a contract under an offer to bid and has failed to
become a party to the contract related thereto



Page1









 





describe):



 






 




o      It has become necessary for the Beneficiary bank or other financial entity to make payment under
its undertaking issued on behalf of Applicant of this Credit, with an expiration date of
                                        , at its counters, in favor of
                                                                                , in relation to

                                                                                                                                                                



|      Description of transaction if other than described

above:  See attached




                                    (If a sample of the wording is
attached, insert “See Attached” above)


â       If a Continuing Agreement is already in place, submit only this Application, with
customer’s signature and account manager’s approvals on page 2
of this form.



o      Credit to be issued in transferable form.




Page2









 







|      Any transfer(s) to this Credit to be effective by  Citibank, N.A., at its Tampa, FL
offices




                (Indicate an appropriate transferring bank name and location)



o      Attachments hereto impose additional terms and conditions on Applicant and / or Citibank and are
incorporated into this Application and Agreement as if fully set forth herein.



o      All banking charges, other than Citibank, N.A. charges, are for account of: o      Beneficiary
o     Applicant



Transmit the Credit by:   o  Cable / SWIFT  o  Airmail   o  Courier Service.



All drafts and documents called for under the Credit are to be delivered by the negotiating or
paying bank to Citibank, N.A. New York by Airmail in a single mailing.




	 	 	 	 	 
	 

	 	 	 	 
	Applicant’s Signature

	 	 	 	Date
	 
	 	 	 	 
	 

	 	 	 	 
	Account Manager’s Signature and Stamp

	 	 	 	Date










The undersigned Co-Applicant hereby agrees to all terms and conditions contained in any “CONTINUING
AGREEMENT FOR STANDBY AND COMMERCIAL LETTERS OF CREDIT” that may be in place between Citibank, N.A.
and the primary Applicant.




                                        




                                                                 



Co-Applicant Signature (if any)                                                             Co-Applicant Name




      







                                        




                                                                                     



Co-Applicant Address                                                                                          Date





Page3